At 80, Ginsburg Needs to Know When to Step Aside

      Fresh from celebrating her 80th birthday, Ruth Bader Ginsburg will take her place on the Supreme Court bench this week as the twelfth justice in history to serve past that milestone. Completing her 19th term, Ginsburg walks slower these days, but her age has not visibly affected her work as a justice, either in her questions on the bench or in her written opinions.
      Still, Ginsburg must by now be contemplating her legacy. Like her admirers, she probably views her years on the court with a mix of satisfaction and disappointment. Ginsburg has done her work well, but, contrary to the title of Jeffrey Toobin’s insightful profile in The New Yorker (March 11), she has not been not a “heavyweight” on the court. Because of what Toobin calls “less fortunate timing,” Ginsburg has been in dissent on many of the issues that most concern her: civil liberties, racial equality, and women’s rights.
      To safeguard her legacy, Ginsburg must now make the right decision about when to retire from the court. She has spoken often — most recently to Toobin — about wanting to stay until she is 82, the age at which her judicial hero Louis Brandeis retired from the court. Conveniently, she will reach that age in 2015, with Barack Obama, a civil liberties-minded Democrat, still in the White House. Asked by Toobin whether the party of the president is relevant to a justice’s decision whether to retire, Ginsburg replied: “I think it is for all of us.”
      Ginsburg’s place in history is assured not by her service on the court but by her role as a litigator in the 1970s in establishing a new constitutional right: the right to be free from governmental discrimination based on sex. Ginsburg graduated in 1959 from a top Ivy League law school, Columbia, but, despite a recommendation from the dean of Harvard Law School, was turned down for a clerkship by Justice Felix Frankfurter.
      Ginsburg went on to found the Women’s Rights Law Reporter while teaching at Rutgers Law School. In 1972 she became the first woman to gain tenure at Columbia Law School and also established the American Civil Liberties Union’s Women’s Rights Project. Already by then, Ginsburg had won the first of four women’s rights rulings at the Supreme Court: a unanimous decision in 1971 striking down an Idaho law automatically favoring men over women in the appointment of administrators of estates (Reed v. Reed).
      Ginsburg’s next victory, Frontiero v. Richardson (1973), relied in part on her counterintuitive insight that laws that discriminate against women can also disadvantage men. The law at issue made it harder for a woman in military service to claim her husband as a dependent for purposes of health benefits than it was for a man to claim his wife. The court ruled the distinction unconstitutional but without a majority holding on the standard to be used in sex discrimination cases.
      Only in Ginsburg’s third case, Craig v. Boren (1976), did the court agree on what is now known as the “intermediate scrutiny” test: laws that discriminate on the basis of sex are unconstitutional unless they further an important governmental interest in a way substantially related to that interest. The law struck down in the case allowed girls to drink 3.2 percent beer at age 18 but boys only at age 21.
      Ginsburg had argued for the more demanding “strict scrutiny” test, but over time intermediate scrutiny has proved to have effective bite in limiting sex discrimination. In her first term, Justice Sandra Day O’Connor, the first female justice, led a 5-4 majority in striking down the single-sex admissions policy at a state nursing school in Mississippi (Mississippi University of Women v. Hogan, 1982). A decade-and-a-half later, Ginsburg, as the court’s second female justice, led a stronger, 7-1 majority in striking down the all-male admissions policy at Virginia Military Institute (United States v. Virginia, 1996). “Women seeking and fit for a VMI-quality education cannot be offered anything less,” Ginsburg declared.
      Unfortunately for Ginsburg’s legacy, the VMI case stands all but alone as a memorable majority opinion. Instead, her memorable opinions of recent years have been in dissent, most notably her anguished attack on the 5-4 decision upholding the federal ban on so-called partial birth abortions (Gonzales v. Carhart, 2007). She can rightfully take credit, however, for using her dissent in the same year in Ledbetter v. Goodyear Tire & Rubber Co. to prompt Congress to overturn a decision making it harder to bring pay discrimination cases under federal law.
      Like Ginsburg, Thurgood Marshall established his place in history before becoming a Supreme Court justice through the school desegregation litigation he directed at the NAACP Legal Defense Fund. As a justice, Marshall resisted delicate suggestions in the 1970s to retire with a Democrat, Jimmy Carter, in the White House. Marshall stayed for another 12 years but accomplished little; his successor, Clarence Thomas, now votes against the positions that Marshall worked and fought for.
      Ginsburg told Toobin that she would stay on the court “as long as I can do the job full steam.” By her own words, however, her stamina is not the only relevant consideration. Ginsburg’s legacy will depend in part on whether she makes the right decision about the best time to step aside.