September 23, 2020

CHANG | Justice Ginsburg’s ’54 Decision to (Not) Retire is None of Your Business

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The passing of Justice Ruth Bader Ginsburg ’54 last Friday night has undoubtedly left many of us Cornellians reeling. RBG was supposed to be the stalwart liberal on the court, not to mention an instantly recognizable face for her trailblazing career in the legal system.

Yet, already, the conversation has shifted to one that questions RBG’s decision to die as a Supreme Court justice instead of retire during President Obama’s term so that a left-leaning justice could have been appointed. This line of argument is unfair and unproductive and echoes demands on women to “give something up for the greater good.” RBG’s term on the court was not one to be weighed on a cost benefit analysis framework and the minutiae of her life was not meant to be the subject of public debate. Why flay a brilliant mind (no disagreeing with that one — not just anyone makes it to the highest echelons of the court system) in the mud when nothing will change the facts?

For RBG to have made the decision to retire before President Trump was elected, she would have needed a crystal ball into the future. Moreover, she would have needed a crystal ball that not only predicted her health for years to come, but also the future of the 2016 election and the path of President Trump’s term in addition to Sen. McConnell’s (R – KY) willingness to break tradition and advocate for confirming another (presumably Republican) justice before the election with just 45 days left until American democracy’s date with destiny in November.

There was no reason for RBG to think that she would die before she was replaced by a justice who thought like her legally or politically. Although she certainly wasn’t in the best of health (which octogenarian is, after all), she wasn’t already suffering on her deathbed. Rather, she said that the busy schedule motivated her in a 2019 interview: “This is my fourth cancer bout, and I found each time that when I am active I am much better than when I am just lying about feeling sorry for myself. The necessity to get up and go is stimulating.”

Now, the contrarian, who I am constructing as an intellectual who believes that all of our decisions must be for the collective good, might argue at this point that RBG should have just played it safe. They might argue that she should have just retired early, not letting the result of the 2016 election even enter into her decision making calculus while ignoring that President Obama would have found it impossible to confirm a justice as liberal as Ginsburg in a Republican Senate. They might even call her selfish: Instead of becoming a sacrificial lamb for the longevity of democracy, RBG prioritized her calling.

A fair question to pose to all of those who slam RBG for her so-called selfishness is such: What obligation does she have to us? Supreme Court justices are not chosen by election. They do not have a constituency — geographic or otherwise. They are positioned to interpret the law, not act in a policitized manner for individual administrations. RBG had no obligation to us; she had every obligation to her office and the Constitution. Had she lost interest in the job (hard to fathom, I know), she could have retired then and there. No American really would have had the right to comment.

Furthermore, these constant cries that RBG should have retired “for the greater good” of democracy and liberal agenda mirror a long legacy of comments that force the burden of creating “progress” in society onto women (and other minorities). I can’t help but be reminded of the Soviet project to urge women to bear more children for the national good. RBG is not the sole arbiter of our national fabric — the United States does not inherently lean one direction or another because of her death. Too often, we fall into the trap of shoving our idea of a better future without considering the individual agency of political figures. She should have had her choice of whether to retire or not, without the individual moralizing of “pundits” who had no right to her life.

We should not fall into this trap of hinging our rights or our political processes on one person. If the court is something truly so imperative to us, we should consider the ways in which we can have input, such as voting and lobbying our elected officials on this topic, not throw tweets into the black of hole of the internet in an armchair beyond reproach. We can do better for someone who gave her life to serve our country’s courts.

 

Darren Chang is a senior in the College of Arts and Sciences. He can be reached at dchang@cornellsun.com. Swamp Snorkeling runs alternate Thursdays this semester.