The media has toppled a barrel of digital ink on the issue of Justice Ginsburg’s insistence on retaining her seat on the Supreme Court. Above the Law has even mentioned it once or twice or thrice. Like any other conventional wisdom story emanating from inside the Beltway, someone raised the issue, Justice Ginsburg said “no,” and then scores of pages were written explaining how she was wrong. And now, as that’s played itself out, scores of pages are going to be written taking the stance that maybe Justice Ginsburg… isn’t wrong?
Well, she is wrong, and bucking the trend of conventional wisdom makes for fun thought experiments, but isn’t as helpful when it comes to discrete, short-term decision-making. The thinking is all too clever by half and should be heaved onto the bonfire of civil liberties Scalia has cooking in his mind….
Emily Bazelon penned an article entitled “Stop Telling Ruth Bader Ginsburg to Retire: It’s counterproductive.” OK, you’ve got me. How so?
The first point, an absolutely fair one, is that there are sexist rhetorical tropes employed by many of the critics calling for Justice Ginsburg to retire. The whole “she’s tired” language plays upon sexist perceptions of women and aging that rarely get tossed around as casually for men. Ronald Reagan was older, but distinguished and experienced, while Hillary is “too old.” Even the Doctor used it to undermine a strong woman in one of the lamest stories involving giant rubber monsters attacking England ever.
We can dispense with this argument here though, as Bazelon notes that most serious critics are aiming for Justice Breyer’s retirement as well, and cabin their talk in terms of realpolitik rather than ad homs about falling asleep at the State of the Union. That’s for our caption contests.
But Bazelon’s primary argument is that people who call for Justice Ginsburg to retire just don’t “get it.” Citing Linda Greenhouse, Bazelon describes Justice Ginsburg’s “long view” of her role:
I think from her perspective she is taking a long view of history, not a case by case one, or a term by term one. She has to believe that justice will win out in the end — or that, if it doesn’t, her departure at one point or another couldn’t be the major factor.
“Long view” is a tag people use to pretend something that is often downright stupid is true because they just see the issue deeper than you do. Justice Ginsburg thinks that “justice will win out in the end,” eh? Yeah those African-Americans who were enslaved for almost 100 years, then functionally enslaved again for another 100 years, then just saw their voting rights protections stripped at the height of an open and notorious campaign to disenfranchise minorities for political gain are really excited to know that justice will have their back… eventually.
A lot of Ivory Tower or Beltway journalism — and this is a smidgen of both — raises interesting, even worthy ideas, but comes from a place of immense privilege. It’s all well and good to speak from educated circles in New York or D.C. (or Connecticut as the case may be) that “justice will win out in the end,” but justice isn’t a mystical prophecy about bringing balance to the Force or something. It’s really not guaranteed in the long term and it’s downright precarious in the short term when people decide to leave it up to the fates.
But I think Greenhouse is right when she says this of Ginsburg: “I think she feels that it belittles and diminishes the court to have retirements so obviously timed for political reasons, and the more people yap at her, beginning with Randy Kennedy a few years ago, the more political and instrumental her retirement would seem.” Even if you think it’s delusional to see the Supreme Court as anything but political, scolding Ginsburg about staying on isn’t working. She has made it more than clear that she isn’t going to retire because columnists and law professors think she should. Tell a strong woman what to do too many times, and she’ll tell you (politely, if you’re lucky) to stuff it.
Oh, Justice Ginsburg thinks it belittles her accomplishments when the Court is talked about in political terms? That’s not standing up to sexism, that’s being megalomaniacal. It’s possible to be a very important figure and recognize that your principles and struggles are bigger than yourself. Judges need to be assigned someone like the Caesars of Ancient Rome to whisper in their ear amid Triumphs that “all glory is fleeting.” Or at least a personal Tyler Durden to constantly remind them they are not beautiful and unique snowflakes.
Bazelon takes the argument that we’re assuming Justice Ginsburg is making a tad further and explains that viewing the Court as a nakedly political string of appointments distracts liberals from taking direct political action:
Imagine the short-term worst, from a liberal court-watcher’s point of view: A conservative Republican wins the White House in 2016, and Ginsburg and Breyer announce their retirements the following year. The Republicans also control the Senate. They kill the filibuster for Supreme Court appointments and confirm nominees who see Justice Antonin Scalia as their hero. The court lurches to the right. See above for the dreaded results.
And then? Would We the People rise up and elect a Democratic president, who would then get to make his own slew of appointments? Would the left finally take the courts as seriously as the right has long known to? And if not, could we lay the blame on Ginsburg and Breyer—or would we all share in it?
A conservative Court will inspire Democrats to get out and vote? Really? So that’s why all those campaign ads were about Supreme Court nominees. This Court is ludicrously conservative and “securing the federal bench” is still a non-issue for voters. If functionally striking down the Voting Rights Act isn’t putting a dent in the left’s interest in voting on court politics, I’m terrified of what Greenhouse and Bazelon expect is required to spark the new democratically active left coalition.
Go ahead and elect all the Democrats you want, but recognize that America has just handed its fifth popular victory to the Democrats in the last six elections and the Court is still the most conservative in decades. Judges have a knack for bucking the trend of contemporary elections — it’s sort of by design.
At this point, Bazelon raises again a great idea that she’s championed for some time — term limits for the Court. A process that ensures constitutional interpretation is determined by something other than the genetic predisposition for longevity of a handful of people is a terrific idea. But as Bazelon notes, a constitutional amendment is basically a non-starter, and a voluntary term limit amongst the justices is highly unlikely.
It’s worth talking about and fleshing out Bazelon’s term-limit proposal to get momentum for change. But just because Justice Ginsburg is not responding to suggestions that she should retire isn’t a reason to let the issue go. If everyone gave up arguing for something just because they got told “no” the first time, there’s a lot of good stuff that would go unaccomplished.
But don’t worry, I’m sure like justice, everything will work out in the end if we all just ignore it.