Supreme Court Justice Ruth Bader Ginsburg sat down for a fascinating interview with the New York Times’ Adam Liptak, which is generally a departure from the norm. As Liptak noted, “Unless they have a book to sell, Supreme Court justices rarely give interviews.”
But Ginsburg, an 80-year-old jurist confirmed to the high court two decades ago, had quite a bit to say about the justices’ recent work, Congress’ dysfunction, and the recent far-right trend that has made this “one of the most activist courts in history.”
Of particular interest to court watchers, though, are Ginsburg’s career plans. For many on the left, her retirement before the end of President Obama’s second term is critically important to the nation’s future, but for now, the justice seems intent on staying on the job.
On Friday, she said repeatedly that the identity of the president who would appoint her replacement did not figure in her retirement planning.
“There will be a president after this one, and I’m hopeful that that president will be a fine president,” she said.
Were Mr. Obama to name Justice Ginsburg’s successor, it would presumably be a one-for-one liberal swap that would not alter the court’s ideological balance. But if a Republican president is elected in 2016 and gets to name her successor, the court would be fundamentally reshaped.
These remarks follow comments Ginsburg made in early July, when she brushed off speculation about stepping down from the bench.
At a certain level, it’s tempting to think her age, health, and circumstances are irrelevant – Ginsburg is still excellent at what she does; she clearly enjoys her work; her passion for the law has not faded; and she’d like to continue to do the job she’s already doing well. By some measures, nothing else matters.
There is, however, another way to approach the same question.
Ginsburg is now 80, and has gone through two bouts with cancer. The justice says she doesn’t care about who the next president will be, but if President Obama is replaced by a conservative Republican, and Ginsburg leaves the bench between 2017 and 2021, her replacement would almost certainly be a far-right jurist who would reject Ginsburg’s views, values, and entire approach to the law.
And in a closely divided court, where 5-4 rulings are the norm, replacing a progressive voice like Ginsburg with yet another conservative would likely shape the court for a generation.
What’s more, there’s a nominal progressive majority in the U.S. Senate – which is responsible for confirming justices – and one never knows how much longer that may last.
In other words, the justice is taking an enormous risk with the nation’s future. Maybe the next president will be a center-left Democrat and maybe a Democratic majority in the Senate will last. But maybe not. And if Ginsburg’s gamble doesn’t work out, how much would she regret being responsible for helping move the Supreme Court even further to the right?
Ginsburg is 80 and Justice Stephen Breyer turned 75 last week. It seems only responsible for them to consider the larger political context when evaluating their future plans.