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Monday, August 26, 2013

One More Thing on Ginsburg and Retirement

I'm grateful for the discussion on my post about Justice Ginsburg's interview with the Times--especially the criticisms. I had one more, related observation I wanted to make, which is less about the interview and more about the "retirement" issue. I should acknowledge up front that it involves some generalizations and premises with which people might disagree. Obviously I think I have a valid point to make, but it is at least a little speculative and not perfectly worked out. If I'm out on a limb here, I don't think I'm alone on that limb: Sandy Levinson has made some similar observations. But that doesn't mean either of us are right, of course.

As I have read the discussions about Ginsburg and retirement, I have seen two conflicting themes. 1) Ginsburg's retirement--or anyone's retirement, including Justice Breyer, although she is older and has been through various health scares, and it seems unlikely that such an invitation would be productive if addressed to the Court's conservatives--ought to retire now, while the Democrats might successfully secure her replacement, because if she retires later her place might be filled by a conservative, risking further damage to what liberals view as the proper direction for the Court. 2) This suggestion is impertinent at best, sexist or outrageous or both at best. Of course Justice Ginsburg shoudl retire when she thinks she should retire and not be pressured to step down early. This view is usually accompanied by various encomia to Justice Ginsburg, her role on the Court, her important work on behalf of equality rights for women, etc.

There are also, in my view, two sub-themes running through this discussion. The first is a liberal concern with (liberal conceptions of) justice, rights, the importance of the Supreme Court to these and other fundamental issues, the direction of the Court and the country, and so on. Of course this is the motivation for theme 1) above, but certainly these values are shared by most of the people voicing theme 2), and are often voiced in passionate terms.

The second is the tendency toward hero worship in prominent sectors of the American legal world, most definitely including both the "political"--here in the sense of legal liberals vs. legal conservatives--and the legal academic worlds. (Of course there's a lot of overlap here, but there are plenty of non-academic legal partisans.) This isn't surprising in an environment that is both sentimentally attached to history and largely run on connections, credentialism, and a love of prestige. But it's still striking in a profession that also makes noises about the importance of critical, dispassionate analysis. I don't know whether it's more true here than elsewhere, but elite (or at least well-credentialed) American lawyers are a hero-worshipping bunch if I've ever seen one. Perhaps it starts before law school, but it is certainly encouraged by the arrested adolescence that characterizes the law school experience. It is further maintained and encouraged by the arrested adolescence that similarly characterizes the clerkship experience. It extends to Janet Reno dance parties, black-tie FedSoc dinners with Justice Scalia, and so on. It never seems to die.   

Whether on the surface or just beneath it, a lot of the angry defenses of Justice Ginsburg's entitlement to sit as long as she chooses seem to involve a heavy dose of hero worship. I'm sure she's earned it! (More because of what she did as a practicing lawyer than what she has done on the Court, in my view, but opinions may differ.) But it should be recognized for what it is. 

I just don't think that motivation sits well with the other sub-theme, the theme that emphasizes the crucial importance of liberal legal views and their protection or advancement by the Court. If you don't think that the Court is that important, or don't care that much about rights or legal liberalism, or just think of the Court and its work as an "intellectual feast," or just really value hero worship, then the view that Ginsburg should feel free to retire when she feels like it makes sense. On the other hand, if you're really serious in thinking that the cause of legal liberalism matters a lot, and that the fate of the Court matters a lot, then you should care a lot more about that than you care about the entitlements of your heroes. You should care about the cause, not the privileges of its leaders. And if justice, rights, and that kind of stuff is your motivation, then it seems to me that you should be on board with the view that these things would be advanced by the immediate retirement of Justice Ginsburg (and/or Breyer).

Of course people may have multiple interests and motivations, although that doesn't seem like a full response, since you're still going to have to balance them at some point or conclude that one concern is more important than the other. For myself, absent a change in the nature of federal judicial tenure, I'm fine with Justice Ginsburg serving as long as she wants and is able, and thought the "pressure" for her to retire was a little silly as well as futile. But I am not as passionately motivated by legal liberalism and its causes, or as inclined to think of the Supreme Court as a palladium of liberty, as some of Justice Ginsburg's most vocal defenders are.

Perhaps it's worth their considering whether they are not, in fact, more motivated by hero worship, and a concern for the prerogatives of the hero, than by a strong concern for legal liberalism.  


Posted by Paul Horwitz on August 26, 2013 at 12:11 PM in Paul Horwitz | Permalink


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A Supreme Court that denies the truth about the inherent dignity of every son and daughter of a human person from the moment of creation at conception, and the restrictive inherent nature of marriage, is not and can never be a court that mirrors justice to begin with. In a country that professes to be one nation, under God, and thus indivisible, with Liberty and Justice for all, one cannot reflect justice, while denying the inherent personal and relational dignity of the human person, who, from the moment of conception, has been created in The Image and Likeness of God, equal in dignity, while being complementary as a son or daughter.

Posted by: Nancy | Aug 29, 2013 8:48:40 AM

Paul, you're also skipping over the simple facts of power. A majority of the SCOTUS has extreme power, as does the President. People look at decisions influencing those offices in light of the good or damage that they can do (do you actually think that Gore v. (Vice President) Bush would have been decided the same way that Bush v. (Vice President) Gore would have been, by the same five Justices?

Posted by: Barry | Aug 27, 2013 5:41:11 PM

Hither and anon's comment is a little silly. Ginsburg voted with Sotomayor in 94% of cases this term, with Kagan in 96%, and off the top of my head I can't think of one substantial issue on which she has a tendency to diverge from her Obama-appointed colleagues. With her Clinton-appointed colleague, Breyer, just 88% - without hunting down the cases in which they parted ways, probably because of some divergence of views on issues of speech and criminal justice. (I would add that Ginsburg is much more of a devotee of muscular Chevron deference than Breyer, while Kagan's a great advocate of Chevron and Sotomayor consistently votes to defer to agencies. And that an enthusiasm for deference is much more characteristic of the legal lights Obama surrounds himself with, e.g. Sunstein, than of the Clinton legal team.) So it would seem that she finds "Obama's 'liberal'-ism" quite congenial, and is perhaps less enamored with Clintonian liberalism.

Posted by: anon | Aug 26, 2013 4:31:03 PM

sigh. who are these un-named churls siding with RBG's truculence? Package her and Breyer out together, especially if that will stanch the idiotic assertion of some kind of gender-specific animus toward RBG...
It's been about 18 years for each of them. Dayeinu. Let Obama get some more picks in. (Can you tell I'm not really much for hero-worship, Paul?)

Posted by: Dan Markel | Aug 26, 2013 4:10:54 PM

I am sure Justice Ginsburg gives interviews because she is asked to. That the crazed media would ask to interview her because the issue of her retirement is hot seems "normal" in this abnormal world. I think it is hard for her to turn down interviews because that then becomes the story line.

Because substance seems far removed from what most of the media do most of the time, its members fail to start where they should on questions such as Supreme Court retirements. A better place to start would be to get a qualitative review of opinions by the sitting justices and ask those with poor grades if they are thinking of retiring. Justice Ginsburg would not be the top of the list to be questioned about retirement on that metric.

Posted by: Mike Zimmer | Aug 26, 2013 4:09:48 PM

Paul, you describe hero worship as if it were an artifact of legal education, or maybe as if those prone to it were also prone to go to law school. And you urge our "recognition" of it, as if it were scales to be shed from eyes. Isn't there another view---and one that, incidentally, lends support to your distaste for "political" speech by sitting justices? The alternative is that "hero worship" of SCOTUS justices is something more like attachment to the system of respect for law and law makers, an aspect of the rule of law that is not a weed but actually part of the garden of successful constitutional systems. We can debate about whether venerating particular justices with whom one is more prone to agree is a degenerate version of that system, but they seem at least closely related. Can you have one without the other?

Posted by: BDG | Aug 26, 2013 2:40:29 PM

There's always a binary-bordering-on-cartesian conception of jurisprudence underlying these kinds of debates that bugs the snot out of me. The whole idea that any "liberal" politician will produce "liberal" court appointees, while every "conservative" plans to appoint the second coming of Roger Taney is obscenely reductive.

First, there's a broad spectrum of political belief covered by "liberal" and "conservative" in this country. Maybe RGB doesn't belief President Obama's "liberal"-ism quite cuts it. Maybe she wants to hold out for some Hillary Clinton-style liberalism.

Second, Supreme Court selection has an institutional political dynamic. It's not just up to the current Prez. There's the Senate to consider, and you may have noticed that judicial appointments give it a special kind of foaming-at-the-mouth-crazy-fit these days. Maybe RGB doesn't think anyone sufficiently "liberal" could even make it through that rabies infested mosh pit right now.

Third, there's a subtle but kinda significant difference between what we really mean when we call a politician "liberal/conservative" and what we mean when applying the same terms to a jurist/legal philosopher. Maybe RGB's deep-seated desire for liberal jurisprudence isn't all that well satisfied by the current strand of political liberalism. Maybe she's holding out for something more leftist and less center-right Christian mainstream.

Add all of that up, and the whole dynamic looks a little more complex and a little less zero-sum. If so, maybe RGB has as much right to make her own calculations as anybody, and probably more expertise at doing so than any of the bloggers, activists, journalists, and law professors offering her unsolicited advice.

Posted by: Hither and Anon | Aug 26, 2013 2:12:37 PM

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