It is not unusual for octogenarians to die, no matter how tough they are. It is unusual, however, for a single octogenarian’s death to determine whether undocumented immigrants brought here as children may remain here, or whether women may terminate their pregnancies, or whether transgender people may work where they please without fear of being fired.
With Ginsburg gone, any hope of salvaging a jurisprudential future from the high court that protects minority rights and the rule of law almost disappears for a generation. More important, so does any hope of a future in which the Supreme Court is even viewed as an instrument of pure jurisprudence, rather than one of ideology.
Perhaps Ginsburg chose not to retire during Barack Obama’s presidency because she loved her job, or because as a woman in a profession stuffed with men she had worked so hard to get her job, or because she believed she could do her job better than anyone else. But she also said, as her ninth decade dawned and the Obama era dimmed, that justices shouldn’t contort their retirements to sync up with Oval Office occupancy.
She would stay as long as she physically and mentally could. “There will be a president after this one, and I’m hopeful that that president will be a fine president.”
Unfortunately not. Ginsburg’s institutionalist argument for staying aimed to protect the high court’s reputation as hovering somewhere above the partisan fray. The problem with such thinking is that the court is no longer solely in charge of its reputation, which took a dagger to the heart when Senate Majority Leader Mitch McConnell (R-Ky.) refused to grant Merrick Garland so much as a hearing eight months before an election, and met its demise when Brett M. Kavanaugh snagged a post even after ranting and raving before Congress about a left-wing conspiracy.
All the while, Democrats fiddled and fussed about, saying that surely at least the best members of the Grand Old Party would honor the very principle they’d established should a seat become vacant ahead of the 2020 election. Surely? They also said that the only thing to do in the face of such perfidy was to vote, vote, vote — even though this president lost the popular count in 2016, and even though the Senate is set up such that Democrats need a national landslide to win it.
The much-memed Notorious RBG was the great dissenter, a position that depends on saying an awful lot while accomplishing only a little. Her most withering salvos drew plenty of triumphantly toned Twitter time. But no number of bon mots was ever going to protect our politics from the corruption of dark money; no stunning and spiky jabot could serve as recompense for the refusal to entertain Garland’s nomination, or for the installation of a man credibly accused of assault.
If only Ginsburg could have hung on, progressives could have kept telling themselves that everything would turn out okay in the end — because the play-dirty Republican project to take over might have faltered. Now that McConnell looks likely to have managed in the space of four years to pack the court without the bother of adding seats to the bench, liberals will either have to admit that they got burned or burn something down themselves.
No institutionalist wants to see an end to the filibuster; no norm-loving legislator wants to pack a court when, for all their lives, nine has been the magic number; no establishmentarian wants to bid goodbye to the electoral college, much less hello to a unicameral legislature with only proportional representation. Yet what else are we supposed to do besides bow to permanent minority rule?
We may have wished that the rules, written and unwritten, that have greased our governance would survive today’s trials — just as we wished that Ginsburg would go on doing push-ups with her personal trainer as long as we needed her to. As it turns out, our national bargain based on goodwill and fair play was exactly as endangered as a tiny woman of advanced age and brittle bones who “weighed 85 pounds soaking wet.”