"I had, I think, 12 minutes, or something like that, of argument," Justice Ruth Bader Ginsburg tells Jessica Weisberg, in an interview with Elle, remembering her first appearance as a lawyer before the Supreme Court, in 1973. "I was very nervous. It was an afternoon argument. I didn’t dare eat lunch. There were many butterflies in my stomach. I had a very well-prepared opening sentence I had memorized. Looking at them, I thought, I’m talking to the most important court in the land, and they have to listen to me and that’s my captive audience."
"And then you relaxed?" Weisberg asks.
"I felt a sense of empowerment because I knew so much more about the case, the issue, than they did," Ginsburg says.
She wasn't anyone's instrument, or at anyone's mercy; she was the one in control. Ginsburg had a sense of her own authority, even if the judges she was speaking before didn’t yet. In the 1973 case, she was presenting the A.C.L.U.'s amicus-curiae brief in a case brought by a woman soldier. As Jeffrey Toobin wrote in a Profile of Ginsburg, when Ginsburg again stood before the Court, in 1976, this time as the lead lawyer, "Chief Justice Warren E. Burger stumbled when introducing her. 'Mrs. Bader? Mrs. Ginsburg?' he said…. Later in the same case, Justice Potter Stewart made a similar mistake, calling her 'Mrs. Bader.' " She was forty-three then.
How much time does Justice Ginsburg have now? There is an argument, an increasingly tired one, that if she is not careful, she will die when a Republican is in office—and then who knows who will take her spot on the bench. The plea is that, to avoid this possibility, she should resign—indeed, she should have resigned the minute that Obama was reëlected. If the Democrats lose control of the Senate in November, there will be expressions of despair: Doesn't she know that she could die at any minute? Why isn't it her priority to make sure the Court house is tidy before she leaves? Ginsburg's dissent, to Weisberg, is a strong one:
Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Republicans] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided.
She knows how good she is and she is not afraid to judge others. (When Weisberg asks why the Court, while moving forward on gay rights, has swung in such a conservative direction on women’s rights, Ginsburg says, "To be frank, it’s one person who made the difference: Justice [Anthony] Kennedy.") Given her profession, that's as much as saying that she's not afraid. And she is quite right: if she had resigned when the party-line worriers would have liked her to, one wouldn't have her magnificent dissent in the Hobby Lobby case, or her matchless voice. That 1973 case was about whether the husbands of soldiers had to prove that they were economically dependent before getting benefits, while wives got them automatically. The Court’s jurisprudence on gender is something that Ginsburg has been building since then. And not only on gender: she, not John Roberts, deserves the credit for saving the Affordable Care Act. The Court is, no doubt, an extremely partisan institution. But that doesn't mean that its members are just pegs to be traded. The Court is also an institution where seniority matters. There is no Ginsburg whom Ginsburg is holding back.
Do Democrats want to make sure that a President of their party is in office when Ginsburg leaves the Court? Then win the next election; battle it out, rather than fretting and sighing about how an older woman doesn't know when it's time to go. (Ginsburg is urged to be selfless a lot more loudly than is Stephen Breyer, who, at seventy-six, is only five years younger, and less of a presence.) If all this talk reflects sublimated doubt about the candidate that the Democrats look likely to field in 2016, then be open about that, and deal with it. Or make sure that the same constraints that—as Ginsburg quite correctly points out— the Republicans, even as a minority party in the Senate, place on Obama, are put on any Republican in the White House. As Dahlia Lithwick put it in a thorough dismantling of the Ginsburg-should-go nonsense, "It’s perverse in the extreme to seek to bench Ginsburg the fighter, simply because Senate Democrats are unwilling or unable to fight for the next Ginsburg." (Lithwick adds, "I have seen not a lick of evidence that Ginsburg is failing…. If anything, Ginsburg has been stronger in recent years than ever.")
But, the counter-argument goes, Obama could appoint a fifty-year-old Democrat—maybe not, to borrow Ginsburg’s phrase, “anyone I would like to see in the court,” but also not a Republican, and that would be enough. (That thinking helps explain why the President tried to name Michael Boggs to the federal bench, despite his anti-choice, anti-same-sex-marriage votes in the Georgia legislature; earlier this week, Democrats effectively killed his nomination.) Justices can be unpredictable: John Paul Stevens, admired by liberals, was appointed by Gerald Ford (and was on the Court until he was ninety). But this is clearly not a good moment to get anyone with ambitious positions—anyone interesting—through the Senate. Why seek it out? An exchange that requires the certain sacrifice of Ginsburg for the uncertainty of whomever Obama could get through is not even sensible in a coldly pragmatic way.
There is another reason why Ginsburg should be on the Court for this particular stretch of its history. In the Elle interview, Ginsburg speaks about the period after Sandra Day O'Connor, the only other woman on the Court at the time, retired (to take care of her dying husband). "When Sandra left, I was all alone," she says.
I'm rather small, so when I go with all these men in this tiny room. Now Kagan is on my left, and Sotomayor is on my right. So we look like we’re really part of the court and we’re here to stay. Also, both of them are very active in oral arguments. They’re not shrinking violets. It’s very good for the schoolchildren who parade in and out of the court to see.
Justices Sonia Sotomayor and Elena Kagan—women, respectively, from the Bronx and Manhattan—are the ideological successors to Ginsburg, who grew up in Brooklyn. (One looks forward to the day when there are women on the Court from each of the city’s five boroughs.) As Ginsburg says, they are not shrinking violets, and they know what they want to do. But there is still plenty to learn on the way from being a strong younger Justice to being a great, precedent-defining one. Working side by side with Ginsburg can be part of that process. In that way, her presence on the Court is a bet on its long-term future, too. (From Toobin's Profile: "Kagan uses the same trainer as Ginsburg, and when the younger Justice struggles with fifteen-pound curls the trainer says, 'C’mon! Justice Ginsburg can do that easily!' ” There are many ways to be a mentor.)
So how long? "As long as I can do the job full steam," she tells Weisberg. (It's a phrase she's used before.) "I think I’ll recognize when the time comes that I can’t any longer. But now I can. I wasn't slowed down at all last year in my production of opinions." She also says that she fully expects some of her dissents, in the long run, to be "recognized as the position of the court." In that respect, she compares herself to Justices Brandeis and Holmes. And why not? She also mentions another name: "A student at NYU started something with NOTORIOUS R.B.G., and then somebody at Stanford did another T-shirt." As R.B.G. says that, the transcript notes, "She grins."
