In April 2011, Harvard law professor Randall Kennedy published a surprising article in The New Republic urging Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer to stop being so selfish and to start thinking about the good of American liberalism by planning their early retirements from the bench. "If Ginsburg and Breyer abjure retirement and Obama wins," he wrote, "the justices' subsequent departures will be relatively harmless. On the other hand, if Obama loses, they will have contributed to a disaster." Indeed, Kennedy asserted, "Their estimable records will be besmirched…if they stay on the bench too long."
That piece was not exactly subtle in its partisan calculations, but it did make a certain amount of ghoulish sense: Ginsburg and Breyer were not spring chickens and Obama's reelection was not guaranteed. Therefore, Kennedy concluded, the two geriatric justices should shuffle offstage for the good of the cause.
Obama won, of course, averting Kennedy's feared "disaster." So that means liberals have finally stopped bugging Ginsburg and Breyer about their retirements, right? Not exactly. Earlier this week, on the occasion of Ginsburg's 80th birthday, legal blogger Kenneth Jost weighed in with a post titled, "At 80, Ginsburg Needs to Know When to Step Aside." Here's the crux of what he had to say:
To safeguard her legacy, Ginsburg must now make the right decision about when to retire from the court. She has spoken often — most recently to [journalist Jeffrey] Toobin — about wanting to stay until she is 82, the age at which her judicial hero Louis Brandeis retired from the court. Conveniently, she will reach that age in 2015, with Barack Obama, a civil liberties-minded Democrat, still in the White House….
Ginsburg told Toobin that she would stay on the court "as long as I can do the job full steam." By her own words, however, her stamina is not the only relevant consideration. Ginsburg's legacy will depend in part on whether she makes the right decision about the best time to step aside.
By her own admission Ginsburg plans to stick around until 2015, which still gives Obama plenty of time to replace her. You'd think her purported admirers would give her a break until then.