Ruth Bader Ginsburg Could Probably Have Saved Roe by Retiring

The death of Justice Ruth Bader Ginsburg in 2020 was almost too on the nose for a year marred by unimaginable tragedy and trauma whose impact was sorely felt Monday night when a leaked draft of the majority decision written by Justice Alito in the hotly anticipated Dobbs v. Jackson Women’s Health Organization case appeared to seal the fate of Roe v. Wade, the 1973 decision that legalized abortion nationwide.

As one of the most esteemed liberal justices to sit on the bench, Ginsburg had scoffed at the idea of retiring before she felt that she could “no longer do the job”. Following multiple bouts with cancer and a broken hip her ability to conquer each health obstacle with perseverance and strength turned her into a living feminist folk hero and rock star until her death at the age of 87. She seemed indestructible, until she wasn’t.

Now, the question must be asked: Could her retirement at the age of 80 in then President Obama’s second term have deterred America’s now inevitable backslide into a neo-Dark Ages where the freedom to control one’s life and destiny no longer exists for those dwelling outside the womb? In that alternate future, the court would still have a conservative majority now but a narrower 5-4 split that would have at least given a semblance of hope.

Ginsburg alone couldn’t have saved the court, but in giving up her seat she could have stalled its transformation into the conservative juggernaut that is about to achieve the Republicans’ Holy Grail. Then-President Trump was able to seat three justices in a single term thanks to the diabolical strategic maneuvering of the Senate Majority Leader Mitch McConnell, who aided and abetted Trump in the hijacking of the courts, and with them our democracy.

When the calls for Justice Ginsburg to retire began, many, including myself, derided the suggestions as anti-feminist at best and outright misogynist at worst. Do we ever ask men of a certain age to retire? No, we admire them as elder statesmen and applaud their ability to cheat death until the very end. Women, of course, are never afforded such applause.

America’s longstanding allegiance to patriarchy aside, there was indeed a shrewd calculus that needed to be made when taking the temperature of the country and the moves that Republicans were making in the Obama years. No one could have foreseen Senator Mitch McConnell hijacking a Supreme Court seat without any real pushback from Democrats; people should have thought a lot harder about the lengths Republicans would go to given their announcement in Obama’s first term to make him a one term president. If you only get one bite at the apple, you better make it big—and this is what Democrats failed to do.

Like the late Justice Ginsburg, Democrats of a certain time believed in honor and tradition. They believe in a shared moral fabric that for 240 years we have draped our imperfect union in. Republicans, however, have shown they have only one allegiance and that is to power. And while they will fight to the end for that power, Democrats have all too often given in.

When Ginsburg made her decision to stave off retirement it was up to Democrats to do what they could to protect the court from the unrelenting assault Republicans have been waging for decades. What would that have meant? Not rolling over and allowing Mitch McConnell to hold Merrick Garland’s seat hostage and certainly not allowing him to do so again by ignoring the request of Justice Ginsburg from her deathbed to not let Trump replace her.

Should it have been up to Ginsburg, the second woman ever named to the Supreme Court, to make her own decision about whether or not to retire? Yes. It was her choice and she earned it.

Ginsburg was a fighter for every marginalized group—one who lamented how the decision was constructed in Roe v. Wade because she felt that abortion shouldn’t be couched in the right to privacy of a pregnant woman but rather in gender equity under the 14th Amendment equal protection clause. How can women and pregnant people be deemed as equal under the law without actualizing their bodily autonomy? Maybe 50 years from now, if the nation still stands, another case will be brought to restore the right that more than half of the population of this “free” nation just lost.