Menus Subscribe Search

What Makes Us Politic

supreme-court-building-exterior

It’s OK to Pressure Ginsburg and Breyer to Retire From the Supreme Court

• March 24, 2014 • 10:00 AM

The United States Supreme Court in Washington, D.C. (Photo: J Main/Shutterstock)

Retirement is just one more public action by a working politician for which an active constituency should have a say.

If you ever find yourself on the other side of an argument from Emily Bazelon and Dahlia Lithwick, check yourself, and then check yourself again, lest you wreck yourself. These are extremely intelligent people who do not put pen to paper without serious aforethought. And yet I find myself disagreeing with them strongly on the subject of Supreme Court retirements—specifically, those of Ruth Bader Ginsburg and Stephen Breyer.

The case for retirement has been made ably by the likes of Erwin Chereminsky, Randall Kennedy, Jonathan Bernstein, Marc Tracy, and others. In short, Ginsberg and Breyer are on the left of a sharply divided Court and they are not young. Ginsburg, in particular, is in her eighties, has already suffered through a cancer battle, and has experienced a range of injuries. What’s more, the current partisan arrangement allowing Democrats to dominate the justice selection process may not last long. Democrats have around a 50 percent chance of holding the Senate this year, and probably roughly similar odds of holding the White House in 2016. Should the justices step down now, they could be replaced by people of similar ideological persuasions. Waiting longer holds out a real chance that they would be replaced by people well to the right of them, tipping the Court’s precarious balance on such issues as abortion rights.

Now, perhaps its is unseemly to lobby a justice to retire for blatantly political reasons, particularly when they appear to be of sound mind and more than equal to the task of serving on the Court. And perhaps there is at least a hint of sexism behind some of the calls for Ginsburg to step down. (One may note the gender divide among legal scholars on the question of her retirement.)

If you lobby the president or call your member of Congress to try to get them to vote a certain way, it’s not because you think they’re stupid or haven’t considered your position.

Nonetheless, a position on the Supreme Court is a political job, and those who hold it behave politically. They assemble coalitions to strategically advance issues they care about. They are at least somewhat sensitive to public opinion. Justices may be insulated from elections and unrecognizable to most Americans, and they needn’t attend county fairs or kiss babies to keep their jobs, but that does not mean that they are not, in a broad sense, politicians. And as politicians, they will be subject to requests and demands from those who care about public policy. This is why protesters on both sides of an issue will rally in front of the Supreme Court on the day of a hearing. The justices are obviously free to ignore the protesters, but if an issue is important, surely there is no harm in making one’s views known about it, and perhaps some good may come of it.

Well, if one case is important, then surely whether a justice is replaced by her ideological twin or her antipode is far more important—this could affect the outcomes of dozens, even hundreds of cases. Yet Lithwick detects condescension among those calling for retirement: “They seem to assume judges suffer from poor judgment…. Do Ginsburg’s critics think she has forgotten her age, or her medical history, or the date of the upcoming election?”

I must object here. I certainly can’t speak for everyone asking Ginsburg or Breyer to step down, but I doubt any of them believe that the justices are senile or naive. They are not trying to remind the justices of anything. They’re trying to pressure them. That is a legitimate practice in politics. If you lobby the president or call your member of Congress to try to get them to vote a certain way, it’s not because you think they’re stupid or haven’t considered your position. It’s because you want them to know that there’s an active constituency that is paying attention to the issue and would be either pleased or displeased by their public actions.

I am also troubled by the argument made by both Lithwick and Bazelon that urging Ginsburg too much to retire could “backfire.” Should we take this to mean that Ginsburg might well agree that retirement is the smart thing to do if she cares about liberal policy priorities, but she’d be willing to jeopardize those priorities just to spite those asking for her resignation? What a horrible portrayal of one of the country’s leading legal minds!

Despite what the title of Lithwick’s article says, Ginsburg is not “irreplaceable.” None of us is. She will be replaced. Maybe this year, maybe 10 years from now, maybe longer, but it will happen. The question is by whom. There’s nothing wrong with making that an issue as she considers her legacy on the Court.

Seth Masket
Seth Masket is a political scientist at the University of Denver, specializing in political parties, state legislatures, campaigns and elections, and social networks. He is the author of No Middle Ground: How Informal Party Organizations Control Nominations and Polarize Legislatures (University of Michigan Press, 2009). Follow him on Twitter @smotus.

More From Seth Masket

A weekly roundup of the best of Pacific Standard and PSmag.com, delivered straight to your inbox.

Recent Posts

July 22 • 4:00 AM

New Evidence That Blacks Are Aging Faster Than Whites

A large study finds American blacks are, biologically, three years older than their white chronological counterparts.



July 21 • 4:00 PM

Do You Have to Learn How to Get High?

All drugs are socially constructed.


July 21 • 2:14 PM

The New Weapon Against Disease-Spreading Insects Is Big Data

Computer models that pinpoint the likely locations of mosquitoes and tsetse flies are helping officials target vector control efforts.


July 21 • 2:00 PM

Why Are Obstetricians Among the Top Billers for Group Psychotherapy in Illinois?

Illinois leads the country in group psychotherapy sessions in Medicare, and some top billers aren’t mental health specialists. The state’s Medicaid program has cracked down, but federal officials have not.



July 21 • 12:00 PM

What Makes You So Smart, MacArthur Genius?

Noah Davis talks to Yoky Matsuoka about youth tennis, wanting to be an airhead, and what it’s like to win a Genius Grant.


July 21 • 11:23 AM

People Are Clueless About Placebos

Doctors know that sometimes the best medicine is no medicine at all. But how do patients feel about getting duped into recovery?


July 21 • 10:00 AM

How Small-D Democratic Should Our Political Parties Be?

We need to decide how primaries should work in this country before they get completely out of hand and the voters are left out entirely.


July 21 • 8:00 AM

No, Walking on All 4 Limbs Is Not a Sign of Human ‘Devolution’

New quantitative analysis reveals that people with Uner Tan Syndrome don’t actually walk like primates at all.


July 21 • 6:00 AM

Sequenced in the U.S.A.: A Desperate Town Hands Over Its DNA

The new American economy in three tablespoons of blood, a Walmart gift card, and a former mill town’s DNA.


July 21 • 5:00 AM

Celebrating Independence: Scenes From 59 Days Around the World

While national identities are often used to separate people, a husband-and-wife Facebook photography project aims to build connections.


July 21 • 4:00 AM

Be a Better Person: Take a Walk in the Park

New research from France finds strangers are more helpful if they’ve just strolled through a natural environment.



July 18 • 4:00 PM

The Litany of Problems With the Pentagon’s Effort to Recover MIAs

A draft inspector general report found that the mission lacks basic metrics for how to do the job—and when to end it.


July 18 • 2:00 PM

Sure, the Jobs Are Back, but We Need a Lot More

We’re back to where we were before the 2008 recession, but there are now 12 million more people in the United States.


July 18 • 12:00 PM

What Are the Benefits of Government-Funded Research?

Congress wants to know.


July 18 • 10:31 AM

Why Didn’t California’s Handheld Phone Ban Reduce Motor Accidents?

Are handheld cell phones as dangerous as they have been made out to be?


July 18 • 10:00 AM

The Upside of Economic Downturns: Better Childhood Health

For children, the benefits of being born in tough times can outweigh the costs.


July 18 • 9:48 AM

What Tech Talent Shortage? Microsoft Trims 18,000 Employees From Payroll

Like manufacturing before it, the Innovation Economy has reached a turning point, with jobs moving to places where labor is cheaper.


July 18 • 8:00 AM

The Academic of Comic Books

Kim O’Connor talks to Hillary Chute about comics as objects of criticism, the role of female cartoonists, and the art world’s evolving relationship with the form.


July 18 • 6:00 AM

The Supreme Court’s ‘Hobby Lobby’ Ruling Isn’t a Women’s Health Issue

It’s a private health issue. And it affects us all.


July 18 • 4:00 AM

‘Don’t Worry, Be Happy’ Comes Easier to the Danes

New research finds the closer a nation is to the genetic make-up of Denmark, the happier its citizens are.


July 17 • 4:00 PM

A Way for Feminism to Overcome Its ‘Class Problem’

A growing body of research indicates that there are few other interventions that improve the economic prospects and work-life balance of women workers as much as unions do.


July 17 • 2:00 PM

How a Fanny Pack Mix-Up Unraveled a Massive Medicare Fraud Scheme

Two secretaries in a doctor’s office have pleaded guilty and a pharmacy owner faces charges in a scam that Medicare allowed to thrive for more than two years.


Follow us


Subscribe Now

The New Weapon Against Disease-Spreading Insects Is Big Data

Computer models that pinpoint the likely locations of mosquitoes and tsetse flies are helping officials target vector control efforts.

People Are Clueless About Placebos

Doctors know that sometimes the best medicine is no medicine at all. But how do patients feel about getting duped into recovery?

No, Walking on All 4 Limbs Is Not a Sign of Human ‘Devolution’

New quantitative analysis reveals that people with Uner Tan Syndrome don't actually walk like primates at all.

Why Didn’t California’s Handheld Phone Ban Reduce Motor Accidents?

Are handheld cell phones as dangerous as they have been made out to be?

The Upside of Economic Downturns: Better Childhood Health

For children, the benefits of being born in tough times can outweigh the costs.

The Big One

Today, the United States produces less than two percent of the clothing purchased by Americans. In 1990, it produced nearly 50 percent. July/August 2014

Copyright © 2014 by Pacific Standard and The Miller-McCune Center for Research, Media, and Public Policy. All Rights Reserved.