Once More on Strategic Judicial Retirements

I one of those who have been writing for quite a while that if Breyer and Ginsburg care primarily about advancing the positions they’ve fought for on the Court, the best thing for them to do is to retire. Now. Or at least, pending confirmations of their replacements. But before the 2014 midterms, and certainly before the 2016 elections.

Ginsburg has been firing back. But the best case I’ve seen for resisting strategic retirements comes from Linda Greenhouse, who channels Ginsburg to Emily Bazelon:

I think from her perspective she is taking a long view of history, not a case by case one, or a term by term one. She has to believe that justice will win out in the end—or that, if it doesn’t, her departure at one point or another couldn’t be the major factor. I agree with her and I think people ought to give this issue a rest and concentrate on electing Democrats to the White House and the Senate. … I think the issue is serving as kind of a displacement for the liberals’ general sense of powerlessness—they seem to feel that getting Ruth to resign would be something concrete they could accomplish when all else is failing.

It’s a nice sounding argument, but it won’t wash. “Justice will win out in the end?” Politics doesn’t have an “end.” It just has a series of “nows.” Nor is there any certainty about any of it. Political events are incredible contingent, and path dependent; it’s very, very, easy to tell counterfactual stories involving slightly different election results and the implications that spin out from there.

Of course, not all events begin new paths of their own. And sometimes, the path is overwhelmed by other factors, whether they are technological, or demographic, or whatever. But Supreme Court Justices, right now, in this extremely partisan era, and in a closely divided court? I don’t know anything about “in the end,” but it’s very easy to see how a flip or two in who serves on the Court could make very large changes which would matter very much for a whole lot of people for decades.

Now, for most political actors, it’s certainly true that there’s more they can do about House and Senate elections than there is about changing the mind of two individuals. So, sure, if you’re a liberal, don’t get mad as Ginsburg or Breyer; help a Democrat win a Senate seat.

But I’m not talking about what Democratic activists want — after all, many of them don’t care very much (whether they should or not) about what SCOTUS does. At best, most activists and most voters care about one or two Court outcomes. After all, they have plenty of competing issues, and no particular reason to believe that the Court should be at the top of their list. The people who do care about what the Court does, passionately — at least, we suspect they care passionately — are the Justices themselves. So this is on them, not on anyone else.

None of which is to say what Ginsburg or Breyer should do in any absolute sense. It’s a great job, and both are clearly — now — able to do it at the highest level. As I’ve said before, giving that up in order to better fight for their principles is a lot to ask. If either of them believes that it’s not worth it…it’s not up to any of us to pick their priorities. All I’m saying, and I think it’s just clearly true, is that if their top priority is fighting for the legal principles and the outcomes they prefer, then resignation is the best way to ensure that priority.

[Cross-posted at A plain blog about politics]

Jonathan Bernstein

Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.