Should She Stay or Should She Go? The Debate Over Justice Ruth Bader Ginsburg’s Retirement

Supreme Court Justice Ruth Bader Ginsburg is 81 years old. She stands just over 5 feet tall and tips the scales at a hefty 100 pounds. She speaks with what some observers have described as a “tiny” voice laced with a Brooklyn accent. A survivor of both colon and pancreatic cancer, she sits so stooped-shouldered at State of the Union addresses that she seems on the verge of keeling over.

It should come as no surprise, then, that Ginsburg is at the center of a roiling debate among left-leaning lawyers, scholars and legal commentators as to whether the time has come for her to retire in order to permit a Democratic president, Barack Obama, to nominate her successor.

There is no doubt about the debate’s importance. The court has always been a political institution, wielding enormous power over the lives of every American. Under the leadership of Chief Justice John Roberts, however, it has become increasingly and blatantly biased, issuing a series of fractured 5-4 decisions that have altered the country’s legal landscape in such vital areas as the right to bear arms under the Second Amendment, campaign finance and corporate personhood, union organizing and voting rights.

Ginsburg’s retirement, depending on when it comes, won’t end the partisan divide, but it could easily send the court spiraling in an even more extreme right-wing direction than it has charted thus far if the tribunal’s present five-member conservative majority suddenly becomes a division of six to three. Still, there is great uncertainty at the heart of the debate. After all the pros and cons are balanced and weighed, there is no easy or comforting answer to the question: Should Justice Ginsburg stay or should she go?

In an op-ed in the Los Angeles Times in March shortly after Ginsburg’s last birthday, Erwin Chemerinsky, dean of the School of Law at UC Irvine, made the case for her retirement.

According to Chemerinsky, who has argued several important cases before the court, Ginsburg should call it quits in June at the end of the tribunal’s present term. That would give Obama just enough time over the summer to install a replacement before the midterm elections. After that, Chemerinsky reasons, it may be too late, given the prospects for the Republicans reclaiming the Senate and acquiring the authority to nix any nomination.

Presenting the opposite view in a recent Slate.com column, courts and law writer Dahlia Lithwick takes Chemerinsky to task not only for demonstrating bad taste in raising deeply personal questions about Ginsburg but for naively believing that his efforts to nudge Ginsburg to turn in her judicial robes actually might succeed.

“The fact is that making a political judgment about a justice in a public forum is never going to work,” Lithwick charges. “Do Ginsburg’s critics think she has forgotten her age, or her medical history, or the date of the upcoming election? Do they expect her to answer blatantly political questions from reporters about the need for Obama to appoint her successor in blatantly political ways? She answers in riddles not because she is clueless but because to do otherwise would be absurd, and undermine the judicial branch, and her own integrity.” To date, Ginsburg has said only that she will stay on as long as her health permits.

While Chemerinsky and Lithwick sharply dispute the merits of Ginsburg stepping down, they and other participants in the retirement debate agree that the justice is still functioning at a high level, and that she has been an invaluable asset on the bench. Academic studies confirm that as the high court as a whole has moved further to the right, Ginsburg and her two female colleagues — Justices Sonia Sotomayor and Elena Kagan — have been the court’s most consistent liberals. Appointed to the court in 1993 by President Clinton, Ginsburg has had the misfortune of serving under two arch conservatives — the late Chief Justice William Rehnquist and now Roberts. Still, she has managed to amass an impressive body of work, writing majority opinions striking down Virginia Military Academy’s male-only admissions policy (US v. Virginia) and limiting the authority of judges, sitting in cases without a jury, to impose death sentences (Ring v. Arizona).

In many of the most controversial cases, because of the court’s political composition, she has found herself in the minority, relegated to crafting blistering dissenting opinions. Among the most memorable are her dissents denouncing the activism and hypocrisy of the Republican majority for upholding the blanket federal ban on so-called partial birth abortions (Gonzalez v. Carhart), denying equal pay for women (Ledbetter v. Goodyear) and gutting the Voting Rights Act (Shelby County v. Holder).

There is also broad consensus among the debaters that if Ginsburg hangs on past 2016, and the Republicans retake the White House, a variety of fragile 5-4 liberal precedents would likely fall, including last term’s ruling partially invalidating the Defense of Marriage Act (US v. Windsor), the 2012 decision upholding Obamacare’s individual mandate (National Federation of Independent Business v. Sebelius) and even the 1973 Roe v. Wade landmark recognizing the constitutional right to abortion.

The names floated as possible Obama nominees to replace Ginsburg are highly competent but mostly moderate lawyers and judges ranging in age from their late 40s to early 50s. They span the gamut from California Attorney General Kamala Harris, who would be the first African-American woman on the court, to D.C. Circuit Judge Sri Srinivasan, a former deputy solicitor general who would be the court’s first Indian-American justice, and 8th Circuit Judge Jane Kelly, a onetime public defender from Iowa.

It may well be, as Lithwick insists, that given her talent and courage, Justice Ginsburg is irreplaceable. But like it or not, one day — and not too far in the near future — she will in fact be replaced. The thought of having a President Ted Cruz or a President Rand Paul or a President Jeb Bush anoint her successor is so grim and terrifying that the public debate over Ginsburg’s retirement will continue, as ham-fisted and tasteless as the discussion may be. It’s just too important to go away.