Why Ruth Bader Ginsburg Refused to Step Down

When I met Justice Ruth Bader Ginsburg for the first time in 2008, she took me to see a political cartoon that hung in a hallway outside her chambers at the Supreme Court. The cartoon depicted Belva Lockwood, a lawyer in her 50s, who was the first woman to argue a case before the court, in 1880. Ginsburg noted that the Supreme Court bar initially refused to admit Lockwood several years earlier. In response, Lockwood drafted and lobbied for a bill, which Congress passed, allowing qualified women attorneys to practice in federal court.

When Ginsburg began law school at Harvard in 1956, she confronted the barriers of her own era, including queries from the dean about why she felt entitled to take a man’s spot in her class. Ginsburg’s commitment to her studies and later her work, and her conviction that other women had the same drive and capability, became the animating principles of her career.

The timing of Ginsburg’s death on Friday at 87, from complications of a recurrence of pancreatic cancer, and President Trump’s determination to quickly confirm a successor, have prompted a gnawing question among many liberals: Why didn’t Ginsburg resign years earlier, when President Barack Obama could have named a nominee for her seat? Ginsburg’s love for what she called her “good job” — serving as a Supreme Court justice — and her focus on the representation of women help explain her decision to stay. The epic political battle over confirmation could affect the results of the November election and change the trajectory of American law for decades.

Ginsburg didn’t think women should get to do what men did because she believed they would do the job better; she wanted equality for its own liberating sake. Litigating at the Supreme Court in the 1970s, she helped achieve a series of victories that helped free women and men and transgender people from the confines of narrow, gender-based expectations. In 1973, arguing before the Supreme Court for the first time in the case Frontiero v. Richardson, Ginsburg persuaded the nine male justices to strike down a military regulation that prevented husbands of women in the military from receiving the same benefits as the wives of male soldiers. “Nearly a century had elapsed since the Court first heard a woman’s voice at counsel lectern,” she wrote in a foreword to a 2007 biography of Lockwood, connecting her own appearance at the high court to Lockwood’s pioneering one.

When I interviewed Ginsburg in her chambers in the summer of 2009, the nomination of Justice Sonia Sotomayor was pending. “I feel great that I don’t have to be the lone woman around this place,” Ginsburg said, anticipating Sotomayor’s confirmation.

Being on the court without Justice Sandra Day O’Connor, who resigned in 2006, was like going back to being one of only nine women in her law-school class, she said. “Every time you went to answer a question, you were answering for your entire sex. It may not have been true, but certainly you felt that way. You were different and the object of curiosity.” She talked wistfully about Canada, where Beverly McLachlin was then the chief justice and surrounded by at least three other female colleagues. “I think they must have a different way of hearing a woman’s voice if she is the leader,” Ginsburg said.

By then, Ginsburg was in her mid-70s. She had surgery for pancreatic cancer in 2009 (she was also treated for colon cancer a decade earlier). She fended off questions from journalists about when she would retire by noting that she was appointed to the court at the same age — 60 — as Louis Brandeis, nominated by President Woodrow Wilson in 1916. Brandeis served for 22 years, until he was 82; Ginsburg would say she intended to stay at least as long.

At the time, O’Connor was talking publicly about her regrets about the conservative turn the court began to take after her departure. O’Connor decided to leave the court when she was 75 because her husband was sick with Alzheimer’s. But soon after she left the bench, his illness progressed to the point that he could no longer recognize her. She told her biographer, Evan Thomas, that retiring was “the biggest mistake, the dumbest thing I ever did.”“I think O’Connor’s departure served as something of a cautionary tale for Justice Ginsburg,” remembers David Newman, one of Ginsburg’s clerks in 2010-11 and now a lawyer at the firm Morrison & Foerster. “She still had a lot she wanted to see accomplished.”

It was important to Ginsburg to be on the court to welcome Sotomayor and, a year later, Justice Elena Kagan. “She had a lot to give them as new justices,” her friend Judith Resnik, a Yale law professor, told me over the weekend. “She understood completely the centrality of critical mass.”

In 2010, Ginsburg’s husband, Martin Ginsburg, died after his own battle with cancer, and her focus on her work at the court became even more consuming. “Her life revolved around love of her work,” Newman remembers. “If you had a camera trained on her 24/7 the year I was a clerk, you would have seen her during almost all her waking hours reading, writing, editing, giving speeches — immersed in the law and the craft of judging.”

A few years later, when Ginsburg was in her early 80s and President Barack Obama was in his second term, calls for her to retire sounded mostly from male academics and writers. But Ginsburg by then had new celebrity status as the Notorious R.B.G.; in 2013, Shana Knizhnik, then a law student, started a Tumblr by that name to honor Ginsburg’s memorable dissent in the voting-rights case Shelby County v. Holder. In that case, Ginsburg compared the majority’s decision to stop requiring states and counties with a history of racial discrimination to get the approval of the Department of Justice before changing local voting rules, for example by closing polling places, to “throwing away your umbrella in a rainstorm because you are not getting wet.”

“She was a great framer of the issue in dispute, and she only became better at it over time,” says Goodwin Liu, another former clerk and a justice on the California Supreme Court. “The Shelby County dissent is the best version of that.” Ginsburg was suddenly the court’s chief popularizer, the role model for little girls that she never had for herself, a character on ‘‘Saturday Night Live,’’ the face on boxes of Judgmints and T-shirts (which she sometimes gave as gifts). “She had more freedom to craft her message because of her public status,” Liu says.

After interviewing people who knew Ginsburg, I wrote an article for Slate in late 2013 arguing that the public calls for her to retire then, however sensible (and now prescient), wouldn’t work. She was the senior member of the court’s liberal bloc, with the power to assign and more often write important dissents. She reached the pinnacle of her profession by refusing to let other people tell her what she could do. “The impression I got from her was that it was presumptuous for someone else to decide how and when you should end your judicial career,” says Margaret McKeown, a friend and a judge on the U.S. Court of Appeals for the Ninth Circuit. “That is such a personal decision. And when you have a mind as sharp as hers, why wouldn’t you continue?”

To some liberals, the answer seemed straightforward. Erwin Chemerinsky, dean of the law school at the University of California at Berkeley, wrote an op-ed for The Los Angeles Times in March 2014 urging Ginsburg to step down. “I feared the Republicans would retake the Senate in November 2014, and it seemed so unknown what would happen with the presidential election in 2016,” he told me recently. “If she wanted someone with her values to fill her seat, the best assurance was to leave when there was a Democratic president and Senate. Obama could have gotten anyone he wanted confirmed at that point.” Ginsburg’s decision to stay “was a gamble.”

In an interview with Elle Magazine in the fall of 2014, Ginsburg said that “anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided.” No one as liberal as she was could get confirmed, she suggested. She noted that her work production hadn’t slowed. “She had beaten the odds every day of her life and had weathered serious illness in 1999 and 2010,” Resnik says. “Fairly, from her perspective, she saw herself as able to manage the health challenges of aging.”

But Republicans retook the Senate in 2014, as Chemerinsky predicted. The window closed for Ginsburg to step down while Democrats had the power to confirm her successor. “She thought she had clarity about her capacity to do the work,” Resnik says. “She saw around so many corners in the court’s jurisprudence. Why wasn’t she able to see around this one?”

When Obama nominated Merrick Garland to replace Justice Antonin Scalia after his death in February 2016, Ginsburg had a chance to become the senior justice of a liberal-moderate majority of five. She would have capped off her career by writing majority opinions in major cases, making a mark on the law that largely eluded her (with the important exception of her 1996 majority decision that found the all-male admissions policy of the Virginia Military Institute, a state-supported military college, unconstitutional). Instead, Republicans blocked Garland, a move Ginsburg did not anticipate, according to her daughter, Jane C. Ginsburg, who is a law professor at Columbia.

Then Trump defeated Hillary Clinton to win the 2016 presidential election, upending the gamble Ginsburg had taken. “I think that Mother, like many others, expected that Hillary Clinton would win the nomination and the presidency, and she wanted the first female president to name her successor,” Jane Ginsburg emailed me on Sunday. When I asked if Justice Ginsburg reflected differently on her decision to stay after her cancer came back, Jane answered, “Not to my knowledge.”

Dorothy Samuels, a former meşru editorial writer for The New York Times, conducted interviews for a book on Ginsburg starting in 2018. She asked friends and former clerks of the justice to look back to the period in 2013 and 2014. “I was struck by how many people I spoke with, including friends, acquaintances and former clerks, felt she should have resigned at the time and that her staying on was terribly self-centered — a view I share,” Samuels emailed me. “I was also struck that normally forceful advocates I spoke with would not express their dismay on the record while she was alive.”

Ginsburg almost gutted out President Trump’s first term as she had so many other challenges. But now a man she improvidently called a “faker” will try to choose her successor. By putting a conservative woman in Ginsburg’s seat, as he has promised, Trump will fulfill her call to amplify women’s voices on the court. But he’s also likely to solidify a majority that could unravel parts of her life’s work as the court shifts significantly to the right.

There is one way that Ginsburg could still be influential. As R.B.G., she made the court come alive for liberals who have traditionally cared less about it than conservatives. In a September poll by the Pew Research Center, 66 percent of Democrats and 61 percent of Republicans named “Supreme Court appointments” as “very important,” almost the mirror image of a poll from the summer of 2016 (which showed Trump supporters 8 points more likely than Hillary Clinton supporters to ranking the court as very important). Maybe the left’s rising appreciation of the stakes will motivate Democratic voters in November and add fuel to calls for expanding the number of justices, which have already begun.

What would Ginsburg have made of that legacy if it comes to pass? She was an institutionalist. But she was also, in her understated way, a revolutionary.

Emily Bazelon is a staff writer for the magazine and the Truman Capote fellow for creative writing and law at Yale Law School. Her book “Charged” won The Los Angeles Times’s Book Prize for 2020 in the current-interest category.

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