As I wrote on Monday, there is essentially nothing good about the Hobby Lobby decision recently delivered by the Supreme Court. But if you’re determined to find the silver lining, you could find some comfort that the latest landmark ruling from the court’s conservative majority gave Justice Ruth Bader Ginsburg another chance to solidify her position as a liberal hero with another fiery dissent.
Yet while the growing cult of the Notorious RBG is a well-deserved testament to her brilliance as a jurist and talent as a writer, it ignores an uncomfortable reality about this current moment in the politics of the Supreme Court. Namely, the celebrations of her brilliance fail to recognize that the best thing Ruth Bader Ginsburg could do for the liberal movement right now is, arguably, to call an end to a sterling and trailblazing legal career and step down from the court.
That Ginsburg — who is 81 years old and a two-time cancer survivor — may not be able to serve on the high court as long as she would like is well-known. Indeed, ever since it became obvious that Republicans were going to oppose President Obama whenever possible, and especially since they took control of the House of Representatives, the question of what Ginsburg “should” do has been ongoing and unresolved. As recently as March, Isaac Chotiner of the New Republic argued forcefully that she should step down as soon as possible in order to ensure that Democratic president and Senate could pick her successor. He was opposed by two Slate writers, Dahlia Lithwick and Emily Bazelon, both of whom essentially argued that Ginsburg was too valuable an asset — and the nomination process too unpredictable a venture — to risk her voice. And, of course, there's also the question of whether sexism plays a role in calls for Ginsburg to retire, and whether a male justice in similar circumstances would likely be asked to do the same.
The basic dividing line between the two camps is the question of whether Ginsburg’s retirement would truly make it easier for Democrats to ensure that the current slim right-wing majority that dominates the court doesn’t soon become even stronger. The nightmare scenario, of course, is that Ginsburg stays on for the entirety of Obama’s second term, but finds herself unable to hold on throughout a four or eight-year Ted Cruz or Rand Paul administration, leaving a space on the court wide-open for the GOP to nominate Janice Roger Brown or, if it’s possible, someone even worse. The only responsible solution, Chotiner and his fellow travelers believe, is for Ginsburg not to take that chance and to let Obama pick her successor now, before Republicans win back the Senate or even the White House.
What’s implicit in this argument, though, is the belief that a Supreme Court opening in 2014 — assuming the slender likelihood that Democrats hold onto the Senate for 2015 and 2016, too — could be filled by the president with a candidate of his choosing, as has been the case more or less for the entirety of U.S. history.
On this point, Lithwick, Bazelon and Salon’s Joan Walsh are, to varying degrees, not so sure. In a piece from October of last year that praised Ginsburg for her refusal to retire, Walsh claims that the justice is right to believe “there’s no guarantee Obama could get a nominee confirmed” in today’s dysfunctional and viciously partisan Senate. Similarly, Lithwick has pointed to the failed nomination of Debo Adegbile and the failing nomination of Vivek Murthy as proof that Democrats lack the will and the courage to push through controversial nominees — as any judge picked by Obama to sit on the Supreme Court will, regardless of his or her actual record, doubtless be. “I’m not naive enough to suppose that a bird in the hand is always the answer,” Lithwick writes, “but the fact that President Obama can’t get a civil rights lawyer confirmed to a civil rights position in this political climate or seat a surgeon general who believes gun deaths are connected to public health tells me that the argument that he could easily confirm a Ginsburg 2.0 is naive as well.”
Ultimately, how you feel about what Justice Ginsburg should do will hinge on just how broken you think the U.S. Senate (and by extension American government itself) really is. If you’re the kind to believe that, when it comes to working with Congress, the president is already a lame duck, there’s indeed little reason to think that losing the most beloved liberal jurist of her generation would be a net-plus for the left.
The court would simply go from having a 5-4 conservative majority to having a 5-3-and-TBD conservative majority, with the unwelcome side effect of having the admirable but somewhat squishy Stephen Breyer as the liberal wing’s new de facto chief.
But if you believe that Senate Democrats were right not to extend the “nuclear option” of 2013 to Supreme Court nominees — believing, as they did, that Republicans would never go so far as to refuse to allow a president to make his own choice — then the argument for playing it safe and replacing Ginsburg with someone younger and healthier is hard to beat.
For what it’s worth, though, the only person whose decision on this question really matters has firmly got her mind made up. Ginsburg is not only unworried about her ability to continue doing her job, but she is seemingly just as confident that, even if something unfortunate happens after Obama’s left the White House, the next president will be someone with a worldview similar to her own. “I think it’s going to be another Democratic president [in 2017],” Ginsburg told the Washington Post. “The Democrats do fine in presidential elections; their problem is they can’t get out the vote in the midterm elections.”
Let’s hope she’s right — because if she isn’t, her Obama-era legacy may turn out to be something considerably less inspiring than her latest brilliant dissent.