Should Justice Ruth Bader Ginsburg Retire?

March 17, 2014

Erwin Chemerinsky. Founding dean at the University of California, Irvine School of Law. Taught at Duke and USC. Wrote The Conservative Assault on the Constitution, which offers non-constitutional scholars lucid lessons about federal court actions over the past several years, and how they have further the Right Wing agenda. (Has also written many law books for law students.) Spoke at the Tucson Festival of Books in 2011 or 2012. (Losing track of years means nothing more than “losing track of years.”)

Yesterday, the Los Angeles Times published an op-ed by Dean Chemerinsky titled Much Depends on Ginsburg. In the piece, he argues strongly that Justice Ruth Bader Ginsburg needs to resign at the end of the Supreme Court’s current term in June. He makes the case for Justice Ginsburg resigning by focusing on the fact that with one more vote conservative justices will have the ability to undo bedrock law on issues that include abortion, environmental matters, healthcare, gay marriage, and the death penalty.

Dean Chemerinsky emphasizes his concern—and the concern of many others—that the Democrats may lose control of the Senate in November. It’s not enough, he says, for Justice Ginsburg to leave before the end of President Obama’s term. She needs to go in June, so that President Obama can appoint a new justice whose views she likely shares, more or less, while he has a Senate he controls.

The Supreme Court has been ever more willing to reexamine recent precedents, including cases concerning abortion, campaign finance issues, voting rights, and the Second Amendment. (To be fair and balanced, the Court also reversed itself on sodomy laws, minors and the death penalty, etc.) To the extent by which established precedents are subject to change, however, a justice may be less willing to hang on for personal reasons, and more willing to place politics on the decision tree.

Three recent retirements provide some insights into Supreme Court retirements. Justice John Paul Stevens was appointed by President Gerald Ford to replace Justice William O. Douglas (a New Deal Democrat who moved way left over time), who retired as a result of something close to a coup d’état at the Court. His health was very poor and his behavior had become erratic. Still, there is great irony in the fact that President Ford appointed his replacement, as he, as Congressman Gerald Ford, had led the unsuccessful “impeach Justice Douglas” effort. (Justice Douglas may still be angry, almost 35 years after he died.) Even more ironic is the fact that when Justice Stevens retired he was considered the leader of the Court’s liberal wing. Alas, at age 90—having served for longer than every justice other than Justice Douglas and one other, and having retired before President Barack Obama had served for even two years—one cannot argue seriously that Justice Stevens left because of politics.

Justice David Souter was appointed by President George H.W. Bush, and certainly disappointed many Republicans. He retired before he turned 70, on President Obama’s watch, but was likely ready to leave Washington by dinnertime the day he arrived in 1990.

Justice Sandra Day O’Connor left the Court during George W. Bush’s second term. Both she and President Bush were Republicans, although she was a swing vote on many issues and was replaced by Justice Samuel Alito, a man with views to the right of hers. Further, her husband’s health was a significant driver for her decision to retire.

Going back to justices appointed by President Franklin Delano Roosevelt in the 1930s and 1940s, I did not find a justice whose retirement appeared to be driven purely or even mostly by the politics of the day, or the party of the president and the Senate majority. That said, I am happy to be corrected on this issue.

Justice Ginsburg remains on the Court despite having had pancreatic cancer that was diagnosed five years ago, despite the loss of her husband almost four years ago, and despite turning 81 this past Saturday. By all accounts she fulfills her duties well, with no limitations.

So, will she resign? Should she resign? Was it appropriate for Dean Chemerinsky to discuss this issue? Who knows, her call, and we live in different times!


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