Ruth Bader Ginsburg’s death will probably allow Donald Trump to appoint a new Supreme Court justice, leading the court to lurch even further to the right and imperiling abortion rights, voting rights, labor rights, immigrant rights, and pretty much every other human right. Many people are therefore revisiting the question of why Ginsburg didn’t retire when Democrats held the Senate back during Barack Obama’s first term, so that she could be replaced with a younger liberal who could cling to the bench for many more decades. (In the interest of fairness, it should be remembered that Stephen Breyer, too, has chosen to linger beyond his life expectancy.)
At the time, many pointed out that Ginsburg’s refusal to leave risked putting us in exactly the scenario that has now occurred. For her part, Ginsburg’s public reasoning ranged from the naive to the self-aggrandizing. She said that “I think one should stay as long as she can do the job,” that “there will be a president after this one, and I’m hopeful that that president will be a fine president,” and even expressed doubt that a replacement could be as good as her: “Who you would prefer on the court [rather] than me?” (Actually Ginsburg’s jurisprudence was a real mixed bag and having another justice more like Sotomayor would have been a vast improvement.)
Obviously, in retrospect, Ginsburg’s critics’ predictions were borne out, and even journalist Emily Bazelon, who wrote “Stop Telling Ruth Bader Ginsburg to Retire” in 2013, now concedes that “it’s clear that it was a mistake that she didn’t leave the court earlier.” But why didn’t she? I don’t actually think Ginsburg’s own comments tell the full story. Ginsburg knew that being “hopeful” for a “fine president” doesn’t guarantee a fine president, and I doubt she really believed she was irreplaceable. Nor do I think Ginsburg was a purely selfish person who would happily let women’s rights go down the drain if it meant she got to keep an exalted position for another few years. I believe Ginsburg was (1) sincerely committed to the things she said she was committed to and (2) not so delusional that she believed a Republican could not come to power. Instead, I think we can find a key part of the explanation for Ginsburg’s decision in something New York Times reporter Linda Greenhouse said in 2013:
“I think she feels that it belittles and diminishes the court to have retirements so obviously timed for political reasons, and the more people yap at her… the more political and instrumental her retirement would seem.”
My guess is that this was, in fact, at the core of Ginsburg’s decision. If Ginsburg had made the decision to retire not on the basis of her own capacity to do the job, but purely because she wanted Barack Obama to “get a younger liberal justice on the court,” this would have been “political” and “instrumental.” I suspect that everything in Ginsburg’s understanding of what the court is and how it should function revolted against this. To admit that the court is political would be to admit that much of what the justices say and do is mere pretense. To retire would have involved accepting something that justices like Ginsburg work very hard to deny. It would have bordered on admitting that the institution is a fraud.
After all, why is there such a controversy right now over Ginsburg’s replacement? Because Ginsburg was a liberal justice and Donald Trump will obviously appoint a conservative justice. We know that justices have politics. But the strange thing is that the justices themselves have a kind of cognitive dissonance about this. They know they are political, but they also deny they are political. John Roberts famously compared the justices to umpires who simply “call balls and strikes,” and when the justices consider a controversial political issue, they take pains to make legal arguments for their decisions rather than political arguments. For instance, the debate over whether states could require government employees to pay union dues was not framed, by either the majority or the minority, as a debate over whether unions were good. It was framed as a debate over whether a government requirement to pay a fee to an organization that conducted political activity constituted “compelled speech” and therefore violated the Constitution’s first amendment. It just so happened that the justices’ opinions on this question corresponded exactly to the outcomes that would favor the conservative or liberal position on whether unions are good. The five conservative justices ruled against the union and the four liberal justices dissented. It was a very strange coincidence, since ostensibly the case was not about whether unions are good, but an abstract question around compulsion and speech.
“Ah, but conservatives are not just anti-union, they also are more skeptical of government attempts to regulate speech, so perhaps this stemmed from their legal position on the role of government rather than their political position on unions,” you might say. Perhaps, except that in other cases, the same conservative justices have been highly permissive of “compelled speech” when it is, say, the government compelling doctors to provide anti-abortion information to women seeking abortion.
We all know Bush v. Gore wasn’t really a case about whether the Equal Protection Clause prevented Florida from being able to count all of its ballots. The five conservative justices said it was legally impossible to fix Florida’s ballot-counting problems, the four liberal ones said it was possible. Does anyone believe that it was pure coincidence that the justices’ views on the law just so happened to line up exactly with their probable political preferences for who should win the election?
And yet the conservative justices did not simply write: “I would like George W. Bush to win the election, therefore I have decided the ballot-counting should stop.” They had elaborate rationalizations for why the Equal Protection clause of the constitution required this result. Like John Roberts, they said they were just calling balls and strikes. The liberal justices, too, would never have admitted that their reasoning had anything to do with wanting Gore to win. They would have talked about principles of fairness even if they had condemned the other justices as doing “partisanship.” (Although even the harshest dissents never quite get to an accusation of bad faith; a recent “withering” and “blistering” dissent by Sonia Sotomayor accused the conservatives of favoring Donald Trump above other litigants, but only went so far as to say the conservatives’ “disparity in treatment erodes the fair and balanced decision making process.”)
Federal appellate judge Richard Posner explained in a 2009 interview the dirty secret that judges are on some level aware of but try not to speak aloud:
They are reluctant to admit that they are… “occasional legislators,” and have been skillful in concealing the fact from the public [not that skillful, I’d note, since we all know it], being abetted in this regard by the legal profession, which has an interest in depicting the law as a domain of sophisticated reasoning rather than, to a considerable extent, of politics, intuition, and emotion. The secrecy of judicial deliberations is an example of the tactics used by the judiciary to conceal the extent to which such deliberations resemble those of ordinary people attempting to resolve disputes in circumstances of uncertainty. The concealment feeds a mystique of professionalism that strengthens the judiciary in its competition for power with the executive and legislative branches of government, the branches that judges like to call “political” in asserted contradistinction to the judicial branch.
Ginsburg herself engaged in exactly the kind of behavior Posner describes. In an interview with NPR, she rejected “the notion that the court is a partisan institution” and said that court-packing schemes to ensure political balance “would make the court look partisan.”
This may seem shockingly oblivious: why would there be such partisan confirmation fights if judges didn’t have political preferences that mattered for their work? But there was good reason why Ginsburg had to tell this story to herself and to us. If the justices were open about their partisanship, the Supreme Court would begin to seem like an illegitimate body. It would be difficult to see why people should show respect for its decisions. After all, if “the Supreme Court decided” just means “based on the random timing of which old person died during which party’s turn in power, a small number of people have been able to impose their will,” it seems like an autocratic institution.
The court is already an extremely strange and undemocratic institution. It is able to overturn any judicial decision by any other court. It is able to strike down laws passed by Congress. It is able to invalidate any action taken by the Executive Branch. And yet it consists of nine unelected graduates of Harvard and Yale, whose names most Americans don’t even know, appointed by an undemocratic body called the Senate, which is itself the product of an undemocratic and illegitimately-enacted document called the Constitution. Even when the Court does things we might like, the reasons it does them can be very strange, such as in the recent case expanding the rights of transgender people based on the 1964 Civil Rights Act. The decision was a good one, but it was only able to happen because conservative justice Neil Gorsuch decided to join the liberals. This means that the fate of trans rights in America rests on what is going on in the brain of an unelected guy named Neil. In order words, we don’t live in a democracy, we live in a “neilocracy” where whether people get their basic rights enforced depends on “how Neil feels about it.” This is a farce.
The farce is only made even partly tolerable by pretending that what is going on in the Supreme Court consists of wise, dispassionate jurists applying laws rather than “doing politics.” One reason that Roe v. Wade is controversial even among people who support it is that it didn’t pretend hard enough to be doing “law” rather than “politics.” It gave the game away. It just sort of seemed to suggest “abortion rights are good, therefore people should have them.” This is hard to defend from a legal standpoint, though it is very easy to defend on the basis of political and moral values. If every decision was like this, though, and the justices just said “I think X outcome would be better,” it might call into question why these people had any greater right than anyone else to impose their will on the rest of us. Is it because they have somber robes and they sit in a building with giant imposing Greek columns? In fact, it probably is partly because of that. Take away the robes and the building, have them sit on a patch of grass in a circle while wearing Hawaiian shirts, and their claim to be able to supersede the elected branches of government would be far more difficult to swallow.
Now, I am not saying there are not good reasons to have an institution that is charged with making sure the more “democratic” branches of government don’t get out of control. The defense people give of the Supreme Court is that when the executive and legislative branches abridge people’s rights, we need some entity that can police them and protect the “minority” from the “majority.” But as Matt Bruenig points out, the underlying theory is ultimately not terribly coherent, because what liberals mean is they want an entity that will stop conservatives from enacting conservative policies and conservatives want an entity that will stop liberals from enacting liberal policies. There is no inherent structural good to the court; a court comprised of conservatives will probably invalidate huge parts of the Green New Deal and will allow the criminalization of abortion. What we want from the court is an entity that will be able to subvert the “democratic” branches when they do things we don’t like.
There are proposals that could make the court a little less arbitrary in its composition, and therefore a little more legitimate, such as the idea of giving every president two appointments and putting 18-year term limits on justices. But it’s still the case that if Republicans have the presidency for a number of years, nobody on the left would accept the legitimacy of a court that continues issuing conservative decisions even after we get back into power. Ultimately, what we want is to enact our policies, and conservatives want to enact theirs, and the court is a means to that end, but once it starts blocking those policies, none of us like the court anymore. Conservatives understand that the court is a political tool, which is why they’re shoving through a replacement for Ginsburg as quickly as they can and do not give a damn about the “double standard” or “hypocrisy” of this compared with their opposition to the confirmation of Merrick Garland in 2016.
We fight over the Supreme Court because we are stuck with the Supreme Court. But ultimately, it is a badly-designed institution that should not exist. The justifications for it rest on the “fear of democracy”: we worry that “the people,” if they have their say, will do things that need to be overturned, because they will infringe on the rights of democracy. But what we actually need is not a “counter-majoritarian” branch of government designed to subvert the people’s will. What we need is an authentic democracy.
Here’s what I mean: the classic example of why you need a Supreme Court is Jim Crow. Southern whites deprived Black people of their right to participate in government. The majority oppressed the minority. Therefore, an enlightened “counter-majoritarian” force was needed to ensure that democracy was not used to deprive people of rights. But it is a mistake to think of what happened as “democracy.” In fact, the problem in the South was that it was anti-democratic; Black people were being deprived of meaningful participation in governing institutions and were being subjected to laws over which they had no control. What they were demanding was the respect of their democratic rights. Once they had those rights, the South made a certain amount of progress. The biggest threat to that progress is the elimination of democracy in the form of curtailing voting rights. So the Court is not needed to prevent democracy from getting out of control. If it is needed at all, it is there to make sure that democracy exists to begin with. If we are to have an institution that is “insulated from day to day politics” its main purpose is to make sure the political process is actually functioning and fair.
There is no perfectly-designed institution that can prevent the government from ever acting in an abusive manner. This is in part because everything is political; “politics” is just a statement of our normative values about what our governing institutions ought to be doing, and everyone has such values, and it’s good to have them. But we need to seriously rethink the purpose of the judicial branch, since at the moment it’s built on the unsustainable myth that these values are not what is driving its outcomes. We should ask deep questions like: What is the purpose of having an unelected branch of government? How can it be fair? What do we want it to do? We should be open to the possibility that, if we had authentic democracy rather than a pseudo-democracy, there would not actually be any need for “judicial review” at all, except insofar as it served the preservation of the underlying democratic procedures.
I see no need to gratuitously excoriate Justice Ginsburg after her death. But her view of the court is not one that anyone can reasonably hold anymore. Conservatives, certainly, no longer hold it. They see judicial confirmation fights as a struggle for power, which is exactly what they are. Everyone else should admit this, too, even though it leads us to deep and unsettling questions about what the purpose of the Supreme Court even is. We should be willing to confront those questions even if they lead us to radically reevaluate what kinds of institutions are needed in order to best serve the public good.