At the end of her 26th year on the Supreme Court, Justice Ruth Bader Ginsburg is going full bore. A series of public appearances this month demonstrate the three-time cancer survivor is speaking out and traveling as much as ever. At the court, her voice is more emphatic. She resists compromising with her conservative brethren.
The emphasis of the 86-year-old “Notorious RBG” is on the here-and-now, not the proverbial “long game” played by some colleagues like Chief Justice John Roberts taking incremental steps toward major decisions and ideological battles in the future.
Asked about any retirement plans on Wednesday night at a Washington, DC, event sponsored by Duke Law School, Ginsburg repeated a mantra: “I’ve always said I’ll stay on this job as long as I can do it full steam.”
At her age, she assesses that each year: “I was OK this last term. I expect to be OK next term. And after that we’ll just have to see.” Earlier this session, Ginsburg missed, for the first time in her tenure, two weeks of oral arguments as she recovered from cancer surgery.
Ginsburg is also plainly laying groundwork for what’s next on the liberal wing.
In the most closely watched cases this session she assigned younger colleagues to speak for the left. Her earlier pattern as the senior liberal, since 2010, had been: she wrote, they signed. Now, when Ginsburg so chooses, the pattern is reversed.
She gave Elena Kagan the responsibility for the dissent in a major partisan gerrymandering dispute and in a case involving a property owner’s challenge to court precedent on land regulation. She had Stephen Breyer write the opinion for liberals in the dispute over a citizenship question on the 2020 census. (Ginsburg and the other justices on the left went further than Roberts, who wrote the main decision keeping the question off the census form, in trying to invalidate the actions of Commerce Secretary Wilbur Ross for the decennial count.)
Kagan and Breyer leveled the strongest counterpunch this term to the Supreme Court conservative majority’s reversal of decades-old precedents. As they made plain in dissenting opinions they penned (and Ginsburg joined) in May and June, their question is: What’s next?
Ginsburg’s in-this-moment approach and continued tenure on the nation’s highest court matter. If she were to retire, President Donald Trump could have an opportunity to name a third conservative jurist. And Trump would not be naming a conservative for a conservative, as he did in 2017 and 2018, but a conservative for a liberal icon. The result would more heavily tilt the bench to the right, affecting dilemmas from women’s reproductive rights to government’s regulatory power.