Supreme Tenure

12.01.14 6:00 PM ET

Justice Ginsburg Shouldn’t Quit Just Yet

‘Til death do us ex parte: Despite her recent heart surgery, it isn’t time for Ruth Bader Ginsburg to hang up her doily.

“Don’t you dare,” Justice Antonin Scalia warned.  “You’re a fool to even consider such a thing.”

This was over three years ago.  So as any “living constitutionalist” will tell you, it’s impossible to know what Justice Scalia originally meant, waaay back when.  But a strict constructionist, textualist, originalist interpretation isn’t hard to discern:  Justice Scalia thinks I’m a fool.

Of course, a more flexible interpretation is just as accurate.  Namely, I was rewriting the Constitution all by myself —I had just announced to Justice Scalia the changes I had planned to make to the 3rd Article, specifically regarding the matter of lifetime tenure for Supreme Court Justices—and Justice Scalia was playing along.

The facts of the case:  I had just reminded Justice Scalia, as if Justice Scalia needed reminding, that the 3rd Article does not, as commonly assumed, guarantee lifetime tenure for Supreme Court Justices.  It demands only that judges “shall hold their Offices during good Behaviour.”  And I was merely advocating (or devil’s advocating) a return to a strict interpretation of the original article.  My goal was to render my own verdict on the undemocratic but longstanding practice of justices of both political persuasions (and if we’re being honest, political parties) choosing to stay on the bench long after they’ve stopped exhibiting “good behavior,” solely to keep the balance of power on their side. 

I’m looking at you, William O. Douglas. I’m winking your way, William Rehnquist.

The question just came up again, because Justice Ruth Bader Ginsburg had heart surgery last Wednesday—and thankfully, was released from the hospital just in time to rule on the constitutionality of cranberry sauce. She returned to the bench today. Still, the news that she had undergone surgery last week left partisans at many a Thanksgiving dinner table wondering aloud whether she should hang up her robe in time for President Obama to nominate a liberal successor.

Well, I object.  For starters, from a purely practical, all-hands-on-deck position, I say if you can do the job, you should keep the job.  If you can dodge a wrench, you can dodge a ball.  That kind of thing.

And I’ll allow into evidence the common complaint that’s what’s good for the goose is good for the gander.  That is, if Republicans have a history of timing their exits, then so should Democrats.  (I was looking at William O. Douglas and William Rehnquist earlier because both famously wore their jerseys long into extra time.  Douglas, despite suffered a debilitating stroke, remained after even he admitted he saw no point “in staying around and being obnoxious,” yet didn’t want then-president Gerald Ford to replace him; and Rehnquist clung tight after thyroid cancer allegedly because he wanted to break Douglas’s record of thirty six years on the bench.) 

Maybe that’s so, if we’re comfortable with treating democracy like a schoolyard where “no fair, they started it” is a reasonable argument.  But let’s agree the Constitution is different, better, more civilized.  It establishes a system of laws to be followed, not a system of rules to be gamed.  Somebody has to draw the line, and if it takes a 90-pound Jewish grandmother bedecked in a doily to do it, so be it.

Keep in mind, and for the record, I don’t think any judge should stay on the bench a single day longer than he or she can fulfill his or her duties.  And I’m well aware history reveals that too many do.  For proof, we need only submit this smoking gun:  More than nine out of ten district and circuit judges die within a year after putting in for retirement.  And that can mean only one of two possibilities:  either too many judges stay on the bench too long, or there’s an unusually specific serial killer on the loose.

But I rest my case with this fact: James Madison, Ben Franklin, and George Washington said so.  Judges, they wrote, “shall hold their Offices during good Behaviour.”  And from my seat in the gallery, it’s hard to conclude that Justice Ginsburg has displayed anything other than good behavior, save maybe for that time she told Egyptians she wouldn’t advise any emerging democracies to base their constitutions on the American Constitution.  (How dare she?!  I mean sure, it’s just her opinion, but how dare she?!)  Beyond that, she hasn’t threatened to dig up dirt on court reporters.  She didn’t schedule a #Ferguson grand jury decision for 9pm.  She’s behaved goodly.

So what if she had heart surgery; happens to the best of us.  So what if she broke two ribs a couple years ago; so did Jack Bauer —perhaps twice.  (Both Bauer and Ginsburg went right back to work.)  So what if she gets iron infusions occasionally; so do I, every morning.  So what if she’s struggled for decades with both pancreatic and colon cancer? Who better to rule on the constitutionality of Obamacare?

Ginsburg said recently that she still “[does] the Canadian Air Force exercises every day.”  That’s pretty darn impressive.  I doubt the Canadian Air Force does the Canadian Air Force exercises every day.  (USA! USA! USA!)  And for decades, she’s apparently been healthy enough to attend the opera regularly with her seatmate Justice Scalia—which has itself inspired an opera.  (What did you do today?)

Besides, let’s be practical.  Even if she were to resign yesterday, the Republican Congress would likely see to it that any Obama replacement nominee flail until she failed.  We’d be a justice short for two long years.  And as a self-appointed Constitutional expert, I’m compelled to ask:  Why are we to presume that decisions made by a Supreme Court of eight—a vacancy extended to spite a president—would be any more constitutional than a Supreme Court of fifteen, stacked to the gills by the executive overreach of a single president?  I’m looking at you, FDR.  (I’m sure there’s an answer to that, but don’t bother me with it; I’m still glaring at FDR.)

Let the record show that espousing principles is common; acting on principle is rare.   And so far, Justice Ginsburg would seem to be making Justice Scalia proud:  she’s behaving according to the original letter of the original Constitution.  She’s doing the job because she can do the job.  Not because she disagrees with a hypothetical future president, or because she simply likes the robe.  So that oughta shut ‘em up. 

For her part, Justice Ginsburg appears to be in for the long docket haul, no matter what they say.  She told Elle magazine that she’d keep chugging as long as she “can do the job full steam.”  That’s all the Founders would hope for, except maybe for the part about Supreme Court justices granting interviews to Elle magazine.

For his part, Justice Scalia couldn’t help adding a few more words when I asked him, finally, if I should tinker with lifetime tenure.  “Don’t,” he said.  “And if you do, at least grandfather me in.  I like my job.”