observations and opinion
Justice Ruth Bader-Ginsberg of the U.S. Supreme Court has ruminated publicly about the political reasons she should not retire. This piece, originally published April 11, 2014 on my dailykos page, speaks to it:
She turned 81 last month. Her career has been a sterling rebuke to sexists and other troglodytes. She has conquered illness and despite outward fragility, must be made out of tungsten steel. She has been the most resolute and reliable liberal on a United States Supreme Court which increasingly acts like an advertising agency for large corporations. Her work is consistently excellent.
But maybe it’s time for Justice Ruth Bader Ginsburg to retire.
Justice Ginsberg represents a reliable progressive vote on the Court. Not even she would argue that. She is, in fact, more than reliable: she is brilliant and admirable, a voice for sanity. The Court has, thanks to the Bush-Cheney majority, entered a phase of obstructionism and corporatism unrivaled since its two Dark Ages: the Antebellum period which produced the Dred Scott decision solidifying slavery, and the 1930s when the Court tried to block FDR’s New Deal. Of late, the Roberts Court majority has dropped any pretense of judicial neutrality – the Obamacare decision and the wishy-washy outcome on the California marriage equality case are not the promise of a change.
The only chance to mend some of the damage inflicted by the Roberts Court “money is speech” rulings is to see a shift in the Court away from the Bush-Cheney majority to a different composition. Appointments are forever, which means until a Justice retires or dies. Of the reliable liberal foursome, two Obama appointees (Sotomayor and Kagan) are young and God willing, will remain on the Court for decades to come. The conservative young punks on the Court (Roberts, Alito and Thomas) aren’t going anywhere. Scalia is too mean to die and will cling to his chair till he’s a hundred, to ensure a Republican President appoints his replacement.
It is the middle three who usually or sometimes take a more liberal view: Ginsburg, Breyer and Kennedy (he’s the pivotal swing vote) who are among the eldest and most likely to depart the Court in the coming years. It would be nice if Justice Ginsberg lasted another twenty years on the Court but actuarial tables and common sense suggest she will not. Kennedy, who has been as much a problem as a help in many cases, is 77. Justice Breyer at 75 and with no history of health problems, appears likely to endure into the next President’s first term or even beyond. Of all nine Justices then, it appears that the one who is most sensitive to – and pivotal to – a liberal presence on a future Court, is Ruth Bader-Ginsburg. And her best way to ensure that now, perhaps, is to retire.
If the current President is going to name a smart, liberal Justice to the Court and get her confirmed, it has to happen soon. Very soon. President Obama has the power to appoint a Justice but only with approval of the U.S. Senate. At present and until January 2015, the Senate is safely under the control of a Democratic majority which would approve almost any appointment proposed by the President. That could well change in January 2017 if, as feared, the Republicans pick off a number of shaky Senate seats currently held by Democrats. If that happens, any appointment during the remainder of Obama’s term will face a much more difficult reception. To be confirmed that appointee will have to be very “safe” indeed – a jurist of moderate tendencies. Exactly what the Supreme Court does not need. The situation could get even worse in 2017, if a Republican is back in the White House: President Huckabee (shudder) will have very definite ideas about what the Court should look like.
It is a miserable thing to examine the actuarial realities of admirable people and suggest their time is up. But since Marbury v. Madison the U.S. Supreme Court has been the final stop for constitutional issues and, for both sides of the political divide, the Constitution has become a crucial weapon. At present the Court is occupied by a majority – three of whom are “young” by comparison to the other Justices – who are fiercely loyal to a version of liberty which maximizes the entitlements of the most privileged, monied and well-organized.
American democracy is slowly drowning in money. If the country has any chance of reversing the current Gilded Age, it needs a few new judicial lifeguards willing, able and available to throw out the lifeline to the citizenry. The U.S. needs new, vibrant, liberal-minded appointees to the Supreme Court, and fast. The only people who can make that happen are some of the Court’s current occupants, or God. Justice Ginsbeg seems the more reliable.