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.