Notorious R.B.G. and the Conundrum of the Life Term

BY SARA SOLANO —

“[A]s long as I can do the job full steam, I will.”
–Justice Ruth Bader Ginsburg

She can perform 20 full push-ups, fearlessly parasail in the French Riviera, overcome cancer twice, and refuse to take time off after cracking two ribs—all while playing a pivotal role in shaping American jurisprudence over the last two decades. No, she is not the new spokeswoman for Dos Equis, but rather Justice Ruth Bader Ginsburg—the oldest sitting justice on the Supreme Court. At 81 years young, Justice Ginsburg is used to those criticizing her decisions; however, now her own supporters are calling for her retirement to allow President Barack Obama to nominate another “liberal”-leaning justice to replace her before the 2016 presidential election.

Specifically, Dean of the University of California–Irvine School of Law and academic institution Erwin Chemerinsky called for Justice Ginsburg’s (as well as Justice Breyer’s) retirement in a highly contentious column. Chemerinsky is not the first to make this suggestion, despite the inherent air of invasiveness in proclaiming that a relatively healthy justice may be expendable simply because of her age. Justice John Paul Stevens, for example, did not retire until the tender age of 90 in 2010; by that standard, Ginsburg may have a few battles with Justice Antonin Scalia left in her.

Art. III, Sec. 1 of the Constitution bestows a life term to justices sitting on the Supreme Court. Taking into account modern medicine and other factors, justices now sit for longer terms on the bench than in years prior—the average tenure jumped from 14.9 to 26.1 years since 1970. The Court’s current paradigm of infrequent vacancies gives Congress and the President less of an opportunity to check the judiciary’s power, and the stakes are exceedingly high with each appointment.

But are Supreme Court justices valued merely as a number to tip the ideological scale, or as true unbiased interpreters of our nation’s most sacred document? Although law students and academics would prefer to assume the latter, the American public generally views the judiciary as merely a third political branch. According to a recent poll conducted by CBS News and The New York Times, 60 percent of Americans oppose lifetime appointments for Supreme Court justices. With equal representation across party lines, a 13 percent minority said justices decide cases based on pure legal reasoning. More shockingly, the study goes on to state that three in four people believe that the current Supreme Court justices let their own personal or political views influence their decisions.

The question, as posited by University of Chicago law professor Geoffrey Stone, is “whether it is morally problematic for justices to intentionally time their retirements in order to maximize the probability that their successors will be like them.” With partisan politics resting largely on divided social policy dogma, Ginsburg has been an institutional voice in gender-based issues, such as women’s rights legislation, same-sex marriage, and abortion. Recent polling numbers have also suggested that the Democrats have a very real risk of losing their majority in the Senate in this year’s midterm elections, thus potentially making it all the more difficult for the party to approve new liberal appointments to the bench.

In a recent article, David R. Stras and Ryan W. Scott proposed an amendment that would stagger fixed, non-renewable eighteen-year terms every two years, thus ensuring an adequate reflection of various judicial backgrounds in the highest court. The proposal does, on its face, appear to be a more representative model similar to that of the other governmental branches—at least according to Thomas Jefferson, who denounced life tenure on the bench as inconsistent with American political ideals.  Moreover, no other judges in the highest court in any other Western democracies hold life terms. Plus, the proposal may further alleviate the tension in discussing the ousting of a respected mind from their calling simply for reaching their golden years.

Nevertheless, in a recent interview, Justice Ginsburg quoted constitutional scholar Paul Freund, stating, “[T]he Court should never be influenced by the weather of the day but inevitably they will be influenced by the climate of the era.” Justice Ginsburg, having weathered some of the most influential climates in American legal culture, is invariably a valuable asset to the bench. Although it is worth considering that Justice Ginsburg may be merely biding her time on the wish and prayer that a strong Democratic presidential candidate can keep a struggling GOP at bay, perhaps she learned from the preemptive retirement of Justice Sandra Day O’Connor that justices have a long life in them. Rather, she likely has a fundamental understanding of the critical role she serves on the Court, especially as someone who values the importance of a thoughtful, pragmatically executed dissent in the wake of a polarizing decision. Even if she does not—someone should.

Perhaps most imperatively, the legal world deserves a sequel to Ginsburg/Scalia: The Opera. Either way, the bench will be all the lonelier without its Great Diva, whenever she so chooses to take her final curtain call.