I said last night that Justice Ginsburg badly miscalculated in not resigning early in Obama’s second term to give him a chance to fill that seat with someone younger (Ginsburg is 83). The future of the Supreme Court was on the line last night, and Democrats, who had the first chance in over 40 years to have a progressive Supreme Court, blew it. The Court is now likely to be conservative for the next generation, and the results are going to be felt in every aspect of American life. As I wrote at TPM last year:
The stakes are high. On non-controversial cases, or cases where the ideological stakes are low, the Justices often agree and are sometimes unanimous. In such cases, the Justices act much like lower court judges do, applying precedents, text, history, and a range of interpretative tools to decide cases. In the most controversial cases, however—those involving issues such as gun rights, affirmative action, abortion, money in politics, privacy, and federal power—the value judgments and ideology of the Supreme Court Justices, and increasingly the party affiliation of the president appointing them, are good predictors of each Justice’s vote.
A conservative like Justice Scalia tends to vote to uphold abortion restrictions, strike down gun restrictions, and view the First Amendment as protecting the right to spend unlimited sums in elections. A liberal like Justice Ginsburg tends to vote the opposite way: to strike down abortion restrictions, uphold gun laws, and view the government’s interest in stopping undue influence of money in elections as justifying some limits on money in politics. This to not to say it is just politics in these cases, or that these Justices are making crassly partisan decisions. They’re not. It is that increasingly a Justice’s ideology and jurisprudence line up with one political party’s positions or another because Justices are chosen for that very reason.
My dean Erwin Chemerinsky was widely criticized when in 2014 he called on Justice Ginsburg to retire, but it was clearly the right call.
Today, Justice Ginsburg sported her dissent jabot, in a subtle critique of Trump. Yeah, that’ll do the trick.
I think in the last few years, all the hagiography and cult-like treatment of “Notorious RBG” went to her head. She made those ill-considered comments about Trump during the election likely because she thought she could help sway her millennial fans, and in doing so she crossed a dangerous line.
Dissent jabot: too little and too late.