(Corrects second paragraph to indicate Breyer is second-oldest among Democratic-appointed justices.)
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.
Ninety years ago, the British jurist James Bryce, in his study of the American constitutional system, noted admiringly that the justices of the Supreme Court were “firm to resist any popular agitation.” Absent this ability to stand outside the political battles, Bryce argued, there was no available response to the charge that the justices were merely substituting their own views for those of the legislature.
Fealty to Constitution
Indeed, the supposed impartiality of the justices is always cited -- as it should be -- when critics complain about decisions they dislike. “Impartiality” means not that members of the court have no views, but that their ultimate fealty is to the Constitution and the institution they serve, rather than to particular issues or movements.
No doubt the Supreme Court’s ability to resist the sway of the political moment is at least partly a myth. But the myth is worth preserving, for if we once concede that the justices are mere functionaries of political movements, the argument for paying attention to their edicts is, at a stroke, eviscerated.
The justices understand this, which is why they tend to view political pressure with aggravation. 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.
The Real Boss
The justices should treat pressure from outside government with the same disdain. According to the AP, Ginsburg intends to ignore the calls for her to leave the court for the sake of “the issues.” Good for her.
Here one might consider a story Justice William Douglas loved to tell about Justice James McReynolds, who was, by reputation, a brusque and unfriendly fellow. The court used to hear arguments at noon. At two minutes of twelve one day, Chief Justice Charles Evans Hughes noticed that McReynolds was not in the robing room with the others, and sent a messenger to summon him. The messenger told McReynolds that Hughes wanted him to come at once. McReynolds famously replied, “Tell the Chief Justice that I don’t work for him.”
If liberals calling for Ginsburg to step down believe that she is somehow no longer up to the job, let them say so forthrightly. Based on the best informed reports, such a claim would be nonsense. If, on the other hand, they want Ginsburg to stand aside to better serve the goals of their movement, then she has an even better reason to ignore their plea: She doesn’t work for them.
(Stephen L. Carter, a novelist, professor of law at Yale and the author of “The Violence of Peace: America’s Wars in the Age of Obama,” is a Bloomberg View columnist. The opinions expressed are his own.)
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