Since the recent passing of Supreme Court Justice Ruth Bader Ginsburg, many progressives are debating the best ways to remember her and discuss her legacy. An outpouring of news outlets released articles highlighting the achievements of her long career. Those who celebrated and engaged in her cult-of-personality, reveling in her “dissenting collar” and workouts may have been surprised to see many snark and criticize Ginsburg’s career. Some question how far her fight for equality truly was — responses range from detailed accounts of her failures in the spheres of racial equality and others contextualizing her long career as white feminism. Others mock those grieving Ginsburg’s death, calling it the “white wom[a]n’s 9/11.” In response, some are quick to comment on the inappropriateness of her critics soon after she passed. The best way to critique Ginsburg’s legacy lies in between these two extremes — we must recognize Ginsburg’s legacy as a whole and what it means going forward, but stay careful to hold powerful people accountable.
It is no question that Ginsburg was a trailblazer in her field and a Justice of historic stature. She was only one of a handful of women accepted into Harvard Law School. She was the first woman to work at the law reviews at both Harvard Law School and Columbia Law School. Although she finished at the top of her class, Ginsburg did not receive a single job offer after graduation. Ginsburg later said that she was not hired for being, “Jewish, a woman and a mother.” She eventually landed a job at the American Civil Liberties Union, where she began to make her mark in women’s rights work. Her arguments in Reed v. Reed, a case that examined whether men could be automatically preferred over women as estate executors, struck down the law — making it the first time the Supreme Court ruled on a law based on gender-based discrimination. When Ginsburg was nominated to the Supreme Court in 1993, she was the second woman ever to serve on the nation’s highest court. On the Court, Ginsburg penned the opinion in United States v. Virginia, which struck down the men-only admissions policy at the Virginia Military Institute.
There is no doubt that these are significant achievements. Ginsburg is likely the closest a person can be to being single-handedly responsible for building up gender discrimination laws as any one person can. She is one of the most liberal Justices of all time and a huge reason women have sex-discrimination laws to rely on and why this country still has abortion protections. Criticizing the choices Ginsburg made during her career and toward the end of her life does not take away from those accomplishments. The oncoming political battle over who will come next to replace her is by her own design.
One of the biggest mistakes Ginsburg made was her decision not to step down back when President Obama was in office. In 2009, following the inauguration of President Barack Obama, liberal Justice David Souter retired from the Supreme Court. In 2010, several months before the midterm elections, liberal Justice John Paul Stevens stepped down from the High Court. In 2018, shortly before the midterm elections, conservative Justice Anthony Kennedy retired. Each of these Justices are doing something fairly obvious — choosing to retire when their political party had control of both the presidency and the Senate. This ensures that their successor will be an ideological ally of theirs.
But in 2013, when Ruth Bader Ginsburg was 80 years old, and Democrats controlled both the Senate and the presidency, she chose to remain on the bench. She publicly stated that she would “remain a member of the Court as long as I can do the job full steam.” At the time, Ginsburg was a two-time cancer survivor, and just a couple of days ago, she succumbed to cancer. Now, her vacancy will almost certainly be replaced with a far-right Judge, with the three frontrunners ready to overturn and taint Ginsburg’s legacy as soon as they reach the High Court.
Her decision to stay on the Court has been devastating to the advancement of progressive values and policies. It will almost certainly degrade and erode whatever legacy she carved in the legal canon as well. Many of the rights that people herald Ginsburg for protecting and paving the way for are now at risk because of her reckless decision not to step down.
If Ginsburg wanted the public to remember her as somebody who served the people of this country until the very end, then she should have done that. Ginsburg decided to lead a life of public service, and her decision not to retire back in 2013 did not serve us. In a position like a Supreme Court Justice, where individuals are appointed for life by the executive branch rather than by vote from the people, criticism is the only way to hold Justices accountable. To insinuate it is inappropriate to critique Ginsburg’s decisions would be to eliminate the only possible check that can be placed on a Supreme Court Justice.
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