The Terrible Case Against Justice Ginsburg’s Retirement

Over the last few years, the consensus among liberals that Justice Ruth Bader Ginsburg ought to retire has grown nearly unanimous—largely because the reasons seem so obvious, and so convincing, that it’s hard to imagine a convincing rebuttal. It’s even harder today, after The Washington Post’s Dana Milbank, bravely undeterred by this near-universal agreement, has waded into the debate and offered a counterargument that almost reads like a sly ploy by the pro-retirement side.

If you weren’t convinced of the argument before reading Milbank’s column, the weakness of his rebuttal should do the trick. The case for Ginsburg stepping down is simple: She’s 81 and in declining health, and her successor—depending on the outcome of the 2016 presidential election—could be a conservative who tips the Court to the right, potentially for decades to come. Ginsburg has been a remarkable justice, and her presence would be missed deeply. But her vote would be missed even more. The Court’s conservative wing is growing ever bolder, and its agenda can be checked only so long as there are four reliably-liberal justices and a swing vote in Anthony Kennedy. But if the liberals-plus-Kennedy fall to a permanent minority of only four votes, the consequences—for campaign finance law, immigrants’ rights, civil rights law, reproductive rights, the environment, you name it—could set back the progressive agenda for a very long time.

No matter, says Milbank, who reports that at this week’s oral arguments, Ginsburg was in full command of her powers, and so “is right to ignore the chorus of liberals asking that she retire.” “The only consideration,” he concludes, “should be whether Ginsburg is still up for the job.” And luckily, there turns out to be no reason to worry about a right-wing president appointing her successor: The justice “told The Post’s Robert Barnes that ‘I think it’s going to be another Democratic president’ elected in 2016.” Well, that settles that.

Milbank is the latest in a series of smart writers trying, and failing, to oppose the sensible idea that liberals should take proactive steps to preserve their bloc on the Supreme Court. Indeed, on the logic of the age-and-successor argument, most of those who have called for Ginsburg to step down have urged that Justice Breyer do the same. But last December, Slate’s Emily Bazelon tied herself in knots attempting to defend Ginsburg’s continued presence on the Court. Although she noted that calls for Ginsburg’s retirement are usually paired with calls for Breyer’s, she claimed that the former nonetheless “seem a wee sexist.” Furthermore, she said, “scolding” Ginsburg would backfire—making her more likely to stay. This was followed by a confusing reversal, as Bazelon then admitted she doesn’t believe justices “should serve as long as they are able,” and indeed claimed that “justices tend to serve for too long.” Finally, she approvingly quoted the New York Times’s Linda Greenhouse, who says that Ginsburg “is taking a long view of history” and “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. I agree with her and I think people ought to give this issue a rest and concentrate on electing Democrats to the White House and the Senate.” This is a breathtaking statement, Pollyannaish in its blithe assurance that, well, everything will turn out for the best—and if it doesn’t, things can hardly be blamed on Ginsburg. After all, how much influence do Supreme Court justices really have?

Just a few weeks ago, Dahlia Lithwick—also a brilliant writer, and also in Slate—claimed it was a “realpolitik flaw” to approach this question by counting Court votes, and added that a justice’s decision to retire is a “complex and deeply personal inquiry.” Of course it is, but any political writer who thinks of the issue in chiefly personal terms is missing the point entirely. This is a highly public and consequential political question. Lithwick claims it’s “bizarre” to question Ginsburg’s political judgment, but what’s really bizarre is the insistence that “scoldings” (also known as opinion writing), the justice’s mental acuity in 2014, idle 2016 speculation, or rosy predictions about the arc of justice ought to outweigh an obvious, if uncomfortable, fact: Nobody knows who the next president will be. I’d like to ask these writers a simple question: If Justice Ginsburg’s replacement is appointed after 2016, who should President Paul or President Cruz pick?