On Saturday, Supreme Court Justice Ruth Bader Ginsburg celebrated her 81st birthday, which apparently means it’s time for a fresh round of calls for her retirement. The latest comes from noted constitutional scholar and dean of the University of California’s Irvine School of Law Erwin Chemerinsky. Professor Chemerinsky lays out a clear, cogent argument for the aging liberal justices to retire this summer, but it’s one that is ultimately misguided. Here’s why.
Chemerinsky argues, compellingly at times, that “much depends on Ginsburg,” particularly when it comes to reproductive rights. As Chemerinsky rightly notes, there are at least four justices who would vote to overturn Roe v. Wade—and they may get that chance if the Roberts Court decides to try and overturn the landmark decision. Ginsburg retiring at the end of this term would prevent Republicans from playing games with the nomination to replace her, including sitting on a nomination until after the 2016 presidential election when Republicans could re-take the executive branch.
But this argument is deceptive in its simplicity; it’s off on a couple of points. First, it relies on some magical thinking about the prospects of any Supreme Court nominee given the hyper-politicization of the Senate Judiciary Committee. In a climate in which Michael Boggs is floated as an acceptable nominee by the Obama administration and in which the Senate ground to a halt over federal appellate court nominees like Caitlin Halligan, there’s no reason to think that same Senate would for a moment advance a nominee similar to Justice Ginsburg.
I’m not alone in my pessimistic view of the current nomination and confirmation process. Justice Ginsburg made this same point herself not long ago.
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So if under the best circumstances a moderate-left nominee like Justice Kagan were nominated to replace Justice Ginsburg, where does that leave us? Assuming that nominee could get confirmed—and even that’s not a safe assumption—it leaves us with a Supreme Court centered even further to the right and without the important rhetorical frame Ginsburg brings to the Court, which is another point Chemerinsky’s argument overlooks. Ginsburg is the one sitting justice who consistently reinforces women’s agency in her opinions, even if the law itself refuses to. Take her dissents this summer in Vance v. Ball and UT Southwestern Medical Center v. Nassar, two cases in which the conservative male justices on the Roberts Court made it clear they had no understanding of, let alone any interest in, workplace harassment claims, except to offer as many protections as possible for employers. It’s no surprise that a woman who helped form equal rights jurisprudence should understand the way structural power and oppression work and how those in power rely on and manipulate those dynamics in a way that offends our constitutional promises of equal protection under the law.
Which leads to the next misstep in Chemerkinsky’s argument: the future of Roe v. Wade. There’s at least an emerging case to be made that Chief Justice Roberts is less interested in striking Roe altogether—a result that would in all likelihood cement his legacy as one of the most activist chief justices—as he is in finding the political sweet spot that allows conservatives to continue to fundraise and demagogue off abortion restrictions while making abortion access a functional impossibility for most women in the country. We saw this first in the challenge to the Affordable Care Act and later to the Voting Rights Act. In both cases, the chief justice led the conservative majority in very effectively gutting significant portions of those laws without actually striking down either in full. And the Roberts Court turned away at least one chance to overturn Roe this term when it rejected Arizona’s request to hear the legal challenge to its 20-week ban. It also avoided intervening in, for now, the fight over Texas’ HB 2, the omnibus anti-abortion law that, because of its hospital admitting privileges provision, has cut off access to reproductive health care for a 400-mile stretch of the Rio Grande Valley, creating a human rights crisis as a result. The Roberts Court could still take up the case later, after a ruling from the U.S. Fifth Circuit Court of Appeals, but there’s no guarantee the case will get there or they’ll take it if it does.
Could it be the reason the conservatives on the Court have passed on at least one direct challenge to Roe v. Wade is simply because they are playing a long game, one that depends on at least one, and perhaps two, liberal justices retiring after President Obama’s term ends—and presumably, by this logic, a Republican elected in his wake to appoint the votes needed to overturn Roe? I suppose. But if that’s the case, and all those pieces do line up exactly as Chemerinsky predicts, then aren’t we pretty much doomed anyway? It’s just as likely that Chief Justice Roberts understands that he can achieve the political goal conservatives are after: undoing the protections and guarantees of Roe v. Wade, without actually having to undo the law. Which raises the much larger, more important question of what, in the age of targeted regulation of abortion providers (TRAP) laws, compelled disclosures, and the increasing policing and criminalizing of pregnant people, would it mean to overturn Roe?
Ultimately, though, all this speculation undercuts Justice Ginsburg herself, who has said repeatedly that she’ll retire when she’s good and ready. And if that is at the end of this term, so be it. But considering at least one colleague on the bench has no trouble publicly rolling his eyes at Justice Ginsburg, and given the important role Justice Ginsburg plays on the role currently, the rest of us should trust, and respect, the justice on this point.