Issue:  Vol. 48 / No. 7 / 15 February 2018

Online Extra: Political Notes: Justice Ginsburg faces pressure to retire


Supreme Court Justice Ruth Bader Ginsburg
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Fearful that Republicans could retake the Senate next fall, and thus, exert control over the process to pick her successor on the nation's highest court, liberal U.S. Supreme Court Justice Ruth Bader Ginsburg is (once again) facing pressure from same-sex marriage advocates and others to retire while Democrats control the congressional chamber.

In June, Ginsburg was part of the two 5-4 majority opinions that struck down both a key provision of the federal Defense of Marriage Act and Proposition 8, California's same-sex marriage ban.

On August 31 she became the first Supreme Court justice to officiate at a same-sex marriage when she presided over the wedding of economist John Roberts, who shares a name but has no relation to Supreme Court Chief Justice John Roberts , and Michael M. Kaiser , president of Washington, D.C.'s Kennedy Center for the Performing Arts, where the ceremony was held.

Liberals have suggested that Ginsburg, 80, should step down while President Barack Obama, a Democrat, holds the White House. They have voiced concerns over who may replace Ginsburg, a two-time cancer survivor, should a Republican win the 2016 presidential race and she ends up leaving the bench. (Similar concerns were raised during Obama's re-election campaign in 2012).

"If a Republican president replaces Ginsburg, conservatives will have six votes on the court," predicted UCLA constitutional-law professor Adam Winkler in a piece titled "Time for Justice Ginsburg to Step Aside to Save Her Legacy" that he wrote for the Daily Beast website in late August.

"The swing justice will no longer be Anthony Kennedy , who sometimes sides with the liberals, as he did in the gay-marriage cases this June. His vote won't even matter," wrote Winkler. "The new swing vote might just be the conservative chief justice himself. Is he the one Ginsburg wants to cast the deciding vote in important constitutional controversies?"

With the issue of marriage equality widely expected to be back before the court, possibly as soon as 2016, the make-up of the court is if utmost concern to lawyers involved in the legal fight over same-sex marriage. They, too, have expressed a desire to see Ginsburg depart now rather than remain on the bench.

In June, Boston College Law School professor Kent Greenfield, a vocal backer of marriage equality, urged Ginsburg to step down by the end of the court's term.

"If she announces her retirement now, the president will be able to choose a replacement from an impressive short list that almost certainly includes California Attorney General Kamala Harris and California Supreme Court Justice Goodwin Liu," he wrote. "Harris would be the court's first African American woman; Liu its first Asian American. Either would be worth Obama spending political capital to champion. Because this is not an election year, the Senate's confirmation hearings could occur with relative dispassion, and the chances of Republican filibuster would be minimized."

(Liu withdrew his name from consideration from a federal judgeship in 2011 after it became clear the Senate wouldn't confirm him. California Governor Jerry Brown then nominated Liu to the state Supreme Court, where he currently serves.)

The retirement pressure Ginsburg is facing came up at a panel discussion about the marriage equality legal fight during the National Lesbian and Gay Journalists Association's annual convention, held last month in Boston.

"There is a lot of pressure on her to retire by 2015 so they can get her replacement on the court by 2016," noted Amy Howe , the editor of SCOTUSblog, which reports on the court.

Fellow panelist Gay and Lesbian Advocates and Defenders legal director Gary Buseck was blunt in his assessment of when Ginsburg should depart.

"I'd tell Ginsburg to retire now," he said. "She is risking her legacy if Republicans win the Senate next year."

Should that happen, Buseck predicted that Ginsburg's "replacement is going to look very different."

With speculation surrounding her tenure flaring up anew this summer, Ginsburg in a rare move for a sitting Supreme Court justice did a round of media interviews with national outlets to address talk of her retirement. She was emphatic about her desire to remain seated on the bench.

"All I can say is what I've already said: At my age, you take it year by year," she told the Washington Post .

And in an interview with the New York Times , Ginsburg repeatedly told court reporter Adam Liptak that her decision on when to retire would not be based on who is president and has the power to appoint her replacement.

He quoted her as saying that she planned to remain on the court "as long as I can do the job full steam, and that, at my age, is not predictable."


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Got a tip on LGBT politics? Call Matthew S. Bajko at (415) 861-5019 or e-mail

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