On election night 1980, after the scope of Ronald Reagan’s landslide became clear, a major television network solemnly reported that Justice Thurgood Marshall had told friends that he planned to step down from the Supreme Court and allow the defeated president,Jimmy Carter, to nominate a successor. I was serving as a law clerk for Marshall at the time, and can state categorically that nothing could have been further from the truth.
This bit of history comes to mind because of the growing chorus calling for Justice Ruth Bader Ginsburg to step down. A recent Associated Press article related what “Democrats and liberals” consider a “nightmare vision of the Supreme Court’s future” — to wit, that President Obama loses his re-election bid, and Ginsburg, now 78 and the oldest member of the court, retires due to ill health. The horror story continues: “The new Republican president appoints Ginsburg’s successor, cementing conservative domination of the court.” The solution seems to be that Ginsburg (and Stephen Breyer, 72, second-oldest among the justices appointed by Democrats) ought to leave the court now, “for the good of the issues they believe in.”
The late constitutional scholar Alexander Bickel famously referred to the Supreme Court as “the most extraordinarily powerful court of law the world has ever known.” No surprise, then, that the court evokes such extraordinarily powerful passions in our politics. It always has. In every presidential election year, candidates warn that their opponents will appoint justices who will twist constitutional law in scary directions. It is almost as though we are electing the justices along with the chief executive.
A Creepy Pastime
Among the creepiest passions the Supreme Court evokes is the deathwatch. The creepiness most commonly occurs when activists whose party happens to be in power root all but openly for the passing (euphemistically, the “retirement”) of justices they consider unlikely to vote their way, before the other party takes the reins.
Today’s pressure on Ginsburg, like yesterday’s pressure on Marshall, represents an equally creepy passion: The insidious hope that the justices one party likes will retire while their side still has the opportunity to replace them.
Both passions arise from the same mistake — the belief that judges exist, in effect, to serve a constituency.
…Consider again the efforts to unseat Marshall in 1980. The story did not end on election night. According to Marshall biographer Juan Williams, Carter administration officials continued for weeks to pressure the justice to resign. They believed that the defeated president could nevertheless get his nominee confirmed by a Senate about to flip from Democratic to Republican.
Marshall, Williams says, not only resisted the pressure but also was infuriated by it. As he should have been. It is no more the business of the president to tell a justice when to step down than it is the business of a justice to tell a president to leave office. The authority of the executive branch over the courts ends with nomination, and that of the legislative branch ends with confirmation. After that, politicians are free to complain about decisions they dislike, but they have no constitutional business trying to rearrange the court’s personnel to their liking.
Well, for progressives-Ginsburg is no longer useful. How pathetic for them thinking they have a right to force judges into their line of thinking, it’s not enough that judges mostly are activists already, then judges, making laws rather than following the law of the land-the Constitution!
Now, THAT was an interesting and informative piece; a perspeective that we wouldn’t get from the msm, ordinarily. Kudos.