I teach current events classes for SBCC. When Ruth Bader Ginsburg died , one of my favorite students likened RBG’s imminent replacement by a staunch foe of Roe v. Wade to a Greek tragedy. Sadly, this conceit is on the mark. The essence of tragedy is that a person of great virtue is brought down by a flaw, frequently hubris. As we mourn the passing of a larger-than-life justice, we must confront the elephant in the room, RBG’s own complicity in the most significant rightward shift in the Supreme Court since Clarence Thomas replaced Thurgood Marshall in 1991.
In 2013 President Obama attempted to persuade Ginsburg to step down, noting that Democrats were likely to lose control of the Senate in the 2014 elections. He argued that all Ginsburg had worked for could be rolled back if she was replaced by a conservative justice. Despite a very precarious health prognosis, Ginsburg rejected Obama’s arguments.
This decision was the product of hubris and denial. RBG rolled the dice twice: once on her health and a second time on the outcome of future elections. If Ginsburg’s most important priority was protecting the gains in women’s rights she had fought for, she should not have gambled away her legacy. If RBG had retired between 2008-14, there is no question that a young progressive justice, probably a female and possibly someone she recommended, would have been confirmed. Both Elena Kagan and Sonia Sotomayor were confirmed during this period with comfortable majorities.
Ginsburg may have felt she was indispensable, but that too reflected hubris. Had she been replaced by a like-minded progressive justice, it is unlikely that a single major court case during the 2014-20 period would have been decided differently. Of course, RBG loved serving on the court and wanted to do it as long as she could. But she must have realized the enormous risks entailed in staying on the court. She rolled the dice anyway, thus becoming Mitch McConnell’s enabler. That is a tragedy.