Ruth Bader Ginsburg Sends A Strong Signal That She’s Not Going Anywhere
Associate Justice Ruth Bader Ginsburg is the oldest member of the Supreme Court, but she’s sending a strong signal that she doesn’t intend on leaving the bench anytime soon:
Justice Ruth Bader Ginsburg marks her 25th anniversary on the Supreme Court this year, and the cultural icon known as the “Notorious RBG” recently signaled that she intends to stay at least through 2020 by hiring law clerks for at least two more terms.
Ginsburg, who turns 85 in March, would have to stay another decade to near the record of William O. Douglas, who served the longest at 36 years. But Ginsburg has already distinguished herself among justices for an intriguing second act, the product of pop culture passion.
If Democrat Hillary Clinton had won the presidency in 2016, liberal Ginsburg would likely have announced her retirement by this spring. Instead the justice who made her name as a women’s rights lawyer in the 1970s apparently is not counting on leaving the stage any time soon.
The law clerk news, reported by Above the Law, triggered a tweet storm through the weekend, some of which included links to a classic 2016 Saturday Night Live “Gins-burn” parody featuring comedian Kate McKinnon as the black-robed Ginsburg.
The Supreme Court public information office confirmed the hiring to CNN.
Some comments on Twitter pitted Ginsburg against President Donald Trump, who in 2016 tweeted that “Her mind is shot — resign!” after she publicly criticized him and deemed him a “faker.” Trump has also said that he expects Ginsburg to leave the court while he is president and able to replace her with a new justice.
Liberal Harvard law professor Laurence Tribe tweeted: “Great news: Justice Ginsburg has hired a full slate of law clerks through 2020. Take that, ‘stable genius’ Donald.”
Ginsburg’s intention to remain on the bench at least through 2020 is not unexpected. Ginsburg has made clear in interviews that she would stay if her health holds. She has survived two bouts with cancer, colorectal in 1999 and pancreatic in 2009, and says she gets regular check-ups. She exercises daily and lifts weights.
When asked in October about possible retirement, she said, “My answer is as long as I can do the job full steam, I will do it.”
Since her appointment in 1993, Ginsburg has had two distinct chapters. She joined as the second woman justice (after Sandra Day O’Connor) and continued her emphasis on women’s rights, penning the 1996 opinion that forced the state-run Virginia Military Institute to admit women, and established a generally liberal record.
But Ginsburg was not among the most visible justices in her earlier years.
That began to change when O’Connor retired in 2006. In February 2009, for example, while undergoing cancer treatment, Ginsburg joined her brethren at an evening joint session of Congress because she wanted the national audience to see that the justices were not only men.
In 2010, when Justice John Paul Stevens retired, Ginsburg became the most senior liberal justice and a robust voice for the left. Her 2013 dissent in a case invalidating a major portion of the Voting Rights Act, Shelby County v. Holder, inspired the Notorious RBG meme. Shana Knizhnik, then a New York University law student, adapted it from rapper The Notorious B.I.G. as she highlighted Ginsburg’s opinion about the need for continuing vigilance on voting rights, particularly in places with a history of racial discrimination.
Given Ginsburg’s previous publicly stated attitude toward suggestions of retirement, as well as her comments about President Trump during the Presidential campaign, the fact that she would prefer not to leave at this time is not at all surprising. Prior to the election, she made clear that she expected that Hillary Clinton would win and hinted that she would likely step down during her Presidency to give her an opportunity to fill Ginsburg’s seat with someone of a similar ideological leaning to Ginsburg. Since that didn’t happen, and given Ginsburg’s rather obvious distaste for Trump or the idea of a Republican President naming her replacement and thus altering the ideological balance of the Court in what would be a hugely significant manner, it’s not at all surprising that she would want to stay on the Court as long as she could on the chance that Trump will be defeated in a bid for re-election in 2020 and replaced by a Democrat. The fact that Ginsburg has hired clerks to last through the 2020 Term doesn’t necessarily guarantee that she’ll be on the Court, of course. Health issues could arise that force her to reconsider that decision or, as happened with her friend Antonin Scalia, the choice could be entirely out of her hands. For the time being, though, she is clearly sending a signal to the President and the country that she has no intention of leaving the bench.
Even if Ginsburg doesn’t leave the bench, the possibility still remains that Trump could make at least one more consequential appointment to the Supreme Court before the 2020 election still remains. It’s equally unlikely that Ginsburg’s fellow liberal Stephen Breyer would voluntarily leave the Court before the next Presidential election, of course, but at least two other aging Justices could make that move sometime in the next two years. At the top of that list, of course, is Associate Justice Anthony Kennedy, who is only a few years younger than Ginsburg and has been on the court several years longer than she has. At the end of the Court’s October 2016 Term in June, there was speculation that Kennedy could announce his retirement as soon as the end of the term in June of last year. As it turned out, that didn’t happen, but there were some hints that Kennedy could be considering making the current term his last, meaning that he would be making an announcement at some point in the coming months. That speculation was mooted to some extent by the fact that Kennedy has hired a full slate of law clerks for the term that begins in October of this year, but that isn’t always a good guide toward whether or not a Justice is contemplating retirement. As I’ve noted before, a Kennedy retirement would be significant due to his role as the deciding vote in many of the Court’s most contentious opinions. In addition to Kennedy, there has been some muted speculation that Justice Clarence Thomas could step down as well, although his retirement would not have the same kind of impact on the balance on the Court as a retirement by Kennedy, Ginsburg, or Breyer would.
All of this is speculation, of course, and it’s possible we’ll go all the way to 2020 with none of the Justices stepping aside voluntarily. As far as Ginsburg goes, though, it seems clear she’s sending a message to Trump that she has no intention of giving him the opportunity to replace her if she can help it.