Although she’s been gone for nearly three years, there is still considerable discussion in progressive circles blaming Justice Ruth Bader Ginsburg for the current disaster on the Supreme Court, accusing her of “letting us down,” “dropping the baton,” being “selfish and egotistical,” and other various wrongs and failings because she did not retire in 2013 and allow President Obama to appoint her successor.
Not only are these accusations unfair to a heroine who gave her all to fight for social justice for decades and did more for women and marginalized people than most of us can even imagine, much less come close to replicating, blaming her for the current makeup and direction of the Court is counterfactual and historically inaccurate.
Here are the facts:
1. Justice Ginsburg had an opportunity to retire in or prior to 2013. She chose not to.
2. While there were some reports that President Obama asked her to retire in 2013, those are based on second-hand and anonymous sources and have never been confirmed. So, while it’s possible that the President or his interlocutors asked her to step down, we do not know whether this actually occurred.
3. After early 2014, there was a certain risk that if Justice Ginsburg retired, Senate Republicans would block any nominee Obama named to replaced her.
4. At that point, the only chance for President Obama to replace Justice Ginsburg with a nominee of his choosing would be for the Democrats to increase their margin of majority in the Senate. their majority and in the 2014 midterms.
5. But in 2014, not only did the Democrats reduce, not increase, their numbers, they lost the majority when Republicans won enough seats to take control, thereby virtually ensuring that, should Justice Ginsburg step down, her seat would not be filled during President Obama’s term. That likelihood was confirmed when, following Justice Scalia’s unexpected death, Senate Republicans blocked President Obama’s nominee for the remainder of his term.
6. Given this, it was clear the window of opportunity for Justice Ginsburg to retire and be replaced by a liberal had closed. After 2013, she could NOT retire if there was to be any chance for her seat to be filled by a liberal. Of course, she could have stepped down anyway and taken the chance, but as we saw with the Garland nomination, that chance was too dangerous. If she wanted her seat saved, she had to stay in it until the next Democratic administration.
7. In 2016, Hillary Clinton, President Obama, their surrogates and civil rights activists across the country repeatedly and loudly warned that the Courts were on the ballot, that the next president would definitely fill one, likely two and possibly three or more Supreme Court vacancies, and any vote not cast for Hillary Clinton was a vote to install conservative justices on the Supreme Court and lower federal courts.
8. Despite the fact that it was distinct possibility that Justice Ginsburg could die during the next term and her seat would fall into the hands of the next president, a critical mass of progressives refused to vote for Hillary Clinton. As a result, Donald Trump was elected president.
Here is some basic math:
1. In 2013, the Supreme Court was split 5-4, with liberals tenuously in control, depending on how Justice Kennedy, who often, but not always, voted with the Court liberals. Had Justice Ginsburg stepped down and been replaced by a liberal in 2013, the balance would have remained unchanged.
2. After Scalia’s death in 2016, the balance shifted to 4-4, where it remained until 2017.
3. Within days of his inauguration in 2017, Trump, as he’d promised during the campaign, appointed an extreme conservative, Neil Gorsuch, to Scalia’s long open seat. The Court returned to a 5-4, slightly left-leaning majority.
Ginsburg was still on the Court.
Had she stepped down and been replaced by a liberal in 2013, the balance would have still been 5-4, slightly left leaning.
4. In 2018, Justice Kennedy, the swing vote, retired and was replaced by the fervently right wing Brett Kavanaugh. The Court balance lurched sharply to the right, with conservatives now holding a solid 5-4 majority.
Ginsburg was still on the Court.
Had she stepped down and been replaced by a liberal in 2013, the balance would have still been a solid 5-4 conservative majority in 2018.
6. Justice Ginsburg stayed on the bench for two more years, working up until the very end of her life. When she died in September 2020, she was replaced by Amy Coney Barrett, increasing the conservatives’ already solid majority to 6-3.
Based on these facts and numbers, a few things are certain and indisputable:
1. While in hindsight, knowing what we know now, it might have been good for Justice Ginsburg to retire in 2013, there was no way to predict two unprecedented occurrences that would affect the Court in the future – Mitch McConnell’s abuse of the Senate confirmation process and the election of Donald Trump.
2. After Justice Ginsburg didn’t retire in 2013, the burden and power shifted from her to the electorate to elect a Democratic president to succeed President Obama to ensure that when she did retire or die, a Democratic president, not a Republican one, would fill her seat. There was nothing else she could do to protect her seat but to stay in it until that happened.
3. The electorate failed to elect a Democratic president in 2016, so all Justice Ginsburg could do was stay in her seat, if there was any hope of turning it over to a liberal. And she did, for another four years. Often, Justice Ginsburg was the deciding vote in critical cases and provided a strong voice in majority opinions and dissents. It’s likely that she would have loved to have retired, to enjoy her final years and days in peace and quiet. But she remained at her post and continued to fight for us until the very end when her body gave out in September 2020.
4. As is clear from the fact that the conservatives seized full control of the Court in the fall of 2018, a full two years before Justice Ginsburg died and while she was still on the Court, that her decision not to retire prior to 2014 is NOT the reason for the Court’s rightward shift. The Court flipped conservative because a Republican Senate was elected in 2014 and a Republican president was elected in 2016, not because Justice Ginsburg didn’t retire in 2013.
5. Even if Justice Ginsburg had retired in 2013 and President Obama managed to get a liberal successor confirmed, the current Supreme Court would still be a solidly conservative 5-4 today – UNLESS the voters had made different choices on the 2014 Senate race and 2016 presidential election.
Now here is some fundamental truth:
Had progressives helped Senate Democrats keep their majority in 2014 and not helped usher Trump into the White House in 2016, even if Justice Ginsburg had remained on the bench until she died in September 2020, the Court would now be 5-4 with liberal justices in control.
The bottom line is that we are not in this situation because of anything Justice Ginsburg did or didn’t do. We are where we are, not because Justice Ginsburg didn’t step down, but because we, progressive voters, did not step up.
Using hindsight to smear her because voters made a decision to allow Senate Republicans to control the confirmation process and Donald Trump to fill vacant Supreme Court seats is based on a lie. And worse, it is a cruel and vicious disservice to a great American heroine who gave us her very last measure and deserves our respect and gratitude.
So, the next time anyone feels compelled to blame someone other than Mitch McConnell and Republicans for our situation and is tempted to point the finger of shame at our side, lay off of our dead heroine and turn that finger the other way around because WE must shoulder a large share of the responsibility.
And if you still feel the need to bring her into the discussion, it would be best to simply say, “Thank you, Justice Ginsburg for your service.”