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Did Ruth Bader Ginsburg Endanger Roe v. Wade By Not Retiring Early?


Ruth Bader Ginsburg was 87 years old when she died in 2020. Had she retired from her position as a justice of the U.S. Supreme Court several years earlier, when Barack Obama was president and the Democratic Party still controlled the U.S. Senate, she would have guaranteed that a Democratic appointee took her place. Instead, Ginsburg’s replacement, Amy Coney Barrett, was nominated by President Donald Trump and swiftly confirmed by a Republican-led Senate.

When I profiled Ginsburg in 2019, I noted that her “future legacy, even among the progressive left, is unclear. Will she be remembered as a legal trailblazer who helped to shape the course of constitutional law? Or will she be burned in effigy for ‘letting’ Trump pick her replacement? Ginsburg’s critics on the right, meanwhile, might just end up thanking her for sticking around for so long.”

Judging by a recent article in Politico, some Ginsburg effigies may already be engulfed in flames. With Republican-appointed justices outnumbering their Democratic counterparts six to three on the Supreme Court, and the future of Roe v. Wade (1973) currently in serious doubt, even some of Ginsburg’s biggest fans are now souring on her legacy. Here’s Politico:

“It’s certainly hard for me, now, to think of her work and of her—and not to, these days, work up a degree of regret and anger,” says Dorothy Samuels, who authored The New York Times‘ legal editorials during her 30 years on the paper’s editorial board. “This is so multilayered because she cared so passionately about advancing equality for everybody. She figured out a way to get women to be part of the constitution. And yet, what she has helped to give us is a court that for a long, long time is going to be undoing the equality rulings that she was part of.”

The calls for Ginsburg to retire began as early as 2011, when Harvard law professor Randall Kennedy prophesied judicial trouble if Obama lost his reelection bid. “If Obama loses,” Kennedy wrote in The New Republic, Ginsburg will “have contributed to a disaster” and “besmirched” her “estimable” record. Retire now before it is too late, he urged the justice. Three years later, Erwin Chemerinsky, then the dean of University of California, Irvine’s law school, took to the pages of the Los Angeles Times to tell the then-81-year-old justice to pack it in. “Only by retiring this summer can she ensure that a Democratic president choose a successor who shares her views and values,” he wrote.

Ginsburg was well aware of such retirement calls and often disparaged them in her public appearances. She liked her job just fine, thank you very much, she would say, and she would keep on keeping on as long as she was able to. Will her legacy as a hero of the left ultimately suffer for that?

One person who has seemingly taken the Ginsburg saga to heart is her longtime colleague Justice Stephen Breyer, who perfectly timed his retirement this year to ensure that President Joe Biden and a Democratic-controlled Senate had the exclusive say on his replacement, who has already been confirmed. Biden’s pick? Ketanji Brown Jackson, a former Breyer clerk.

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