RUTH BADER GINSBURG isn’t planning on going anywhere any time soon.
“Now I happen to be the oldest,” the 81-year-old justice said in the tone of a person who has answered a whole lot of questions about her possible retirement plans. Sitting in her Supreme Court chambers on a dreary afternoon in late January, she added, “But John Paul Stevens didn’t step down until he was 90.”
Until recently, when Ginsburg was asked about retiring, she would note that Justice Louis Brandeis had served until he was 82.
“That’s getting a little uncomfortable,” she admitted.
Over the past few years, she’s been getting unprecedented public nagging about retirement while simultaneously developing a massive popular fan base. You can buy T-shirts and coffee mugs with her picture on them. You can dress your baby up like Ruth Bader Ginsburg for Halloween. A blog called Notorious R.B.G. posts everything cool about the justice’s life, from celebrity meet-ups (“Sheryl Crow is a Ruth Bader Ginsburg fangirl”) to Twitter-size legal theory (“Justice Ginsburg Explains Everything You Need to Know About Religious Liberty in Two Sentences”). You can even get an R.B.G. portrait tattooed on your arm, should the inclination ever arise.
Supreme Court justices used to be known only through their opinions, but in the 21st century they can be celebrities, too. In court, Ginsburg makes headlines with her ferocious dissents against conservative decisions. Outside, the public is reading about her admission that she dozed off at a State of the Union address because she was a little tipsy from wine at dinner. (Plus, she told MSNBC’s Irin Carmon, she had been up all the night before, writing: “My pen was hot.”) This summer, Ginsburg will attend the premiere of “Scalia/Ginsburg,” a one-act opera that the composer Derrick Wang describes as a comedy in which two justices “must pass through three cosmic trials to secure their freedom.” Pieces of it have already been performed, and both Ginsburg and the über-conservative justice Antonin Scalia, a fellow opera lover, are apparently really, really pleased.
Hard to imagine any of that happening to John Roberts.
The retirement talk started around 2011, when the Harvard Law School professor Randall Kennedy wrote an essay in The New Republic arguing that both Ginsburg and Justice Stephen Breyer should quit while there was still a Democratic president to nominate replacements. “What’s more, both are, well, old,” he added uncharitably.
As time moved on, the focus shifted almost exclusively to Ginsburg (“Justice Ginsburg: Resign Already!”). Perhaps that’s simply because she is older than Breyer, who is now 76. Or perhaps there’s still an expectation that women are supposed to be good sports, and volunteer to take one for the team.
From the beginning, Ginsburg waved off the whole idea. (“And who do you think Obama could have nominated and got confirmed that you’d rather see on a court?”) Anyway, since Republicans took control of the Senate in January, it’s become pretty clear that ship has sailed.
“People aren’t saying it as much now,” she said with what sounded like some satisfaction.
Obviously, a time will come. But as far as clarity on the bench, productivity and overall energy go, that time doesn’t at all seem to be at hand. Her medical history is studded with near disasters — colon cancer in 1999, and pancreatic cancer 10 years later. Both times she returned to the bench quickly. (In the latter case, Senator Jim Bunning of Kentucky apologized for predicting she’d probably be dead within nine months.) Last year she had a stent placed in one of her coronary arteries. That happened on a Wednesday, and the court’s public information officer quickly told reporters that Ginsburg “expects to be on the bench on Monday.”
HER physical fierceness is legend. Scalia, her improbable good friend, once recounted a summer when he and Ginsburg had both snagged a gig teaching on the French Riviera. “She went off parasailing!” he told The Washington Post. “This little skinny thing, you’d think she’d never come down.” She has since given up that sort of recreation, but she still works out twice a week in the Supreme Court gym with her personal trainer. Plus there are the daily stretching exercises at home. At night. After work.
It’s the combination of Ginsburg’s woman-hear-me-roar history, her frail-little-old-lady appearance and her role as the leader of the Supreme Court’s dissident liberals that have rallied her new fan base, particularly young women.
The second woman to be appointed to the Supreme Court, she’s part of the generation who came of age after World War II and led a revolution that transformed women’s legal rights, as well as their role in the public world. There’s a famous story about the dean at Harvard Law inviting Ginsburg and her tiny group of fellow female law students to dinner, then asking them how they’d justify having taken a place that could have gone to a man. Ginsburg was so flustered she answered that her husband, Marty, was a law student and that it was very important for a wife to understand her husband’s work.
“That’s what I said,” she nodded.
The dean, Ginsburg said, told her later that he had asked only because “there were still doubting Thomases on the faculty and he wanted the women to arm him with stories.” You have to wonder if the dean was trying to rewrite history. Or maybe joking. But Ginsburg believed the explanation: “He was a wonderful man, but he had no sense of humor.”
During law school Marty Ginsburg developed testicular cancer. Ruth helped him keep up with his work by bringing him notes from his classes and typing up his papers, while also taking care of their toddler, Jane. Plus, she made the Harvard Law Review. This is the kind of story that defines a certain type of New Woman of Ginsburg’s generation — people whose gift for overachievement and overcoming adversity is so immense, you can see how even a nation of men bent on maintaining the old patriarchal order were simply run over by the force of their determination. (Ginsburg herself isn’t given to romanticizing. Asked why the women’s rights revolution happened so quickly, she simply said: “Well, the tide was in our favor. We were riding with winners.”)
Ginsburg was married for 56 years — Marty died in 2010. She has a son, a daughter and four grandchildren, one of whom called and said “Bubbe, you were sleeping at the State of the Union!” after the cameras caught her famous nap. She travels constantly. The day we talked, she was preparing to go off to a meeting of the New York City Bar, where she would introduce Gloria Steinem, who would deliver the Justice Ruth Bader Ginsburg Distinguished Lecture on Women and the Law. A few weeks earlier, at a gathering of the Association of American Law Schools, Ginsburg had introduced her old friend Professor Herma Hill Kay, recipient of the Ruth Bader Ginsburg Lifetime Achievement Award. When you reach this kind of stature, there are lots of echoes.
She’s spent much of her life being the first woman doing one thing or another, and when it comes to the retirement question, she has only one predecessor to contemplate — her friend Sandra Day O’Connor, the first female Supreme Court justice, who left the bench at 75 to spend more time with her husband, John, who was suffering from Alzheimer’s disease.
“She and John were going to do all the outdoorsy things they liked to do,” Ginsburg recalled. But John O’Connor’s condition deteriorated so swiftly that her plans never worked out. Soon, Ginsburg said, “John was in such bad shape that she couldn’t keep him at home.”
O’Connor has kept busy — speaking, writing, hearing cases on a court of appeals and pursuing a project to expand civics education. But it’s not the same as being the swing vote on the United States Supreme Court. “I think she knows that when she left that term, every 5-4 decision when I was in the minority, I would have been in the majority if she’d stayed,” Ginsburg said.
Besides not retiring, another thing Ginsburg is planning not to do is write her memoirs. “There are too many people writing about me already,” she said. There’s an authorized biography in the works, along with several other projects to which she has definitely not given a blessing.
“But now — this is something I like,” she said, picking up a collection of essays, “The Legacy of Ruth Bader Ginsburg.” The justice also seems to be looking forward to an upcoming “Notorious R.B.G.” book, written by Shana Knizhnik, who created the blog, and Irin Carmon of MSNBC. The name started as a play on the name of the Brooklyn gangsta rapper Notorious B.I.G., but it’s taken on a life of its own as a younger-generation tribute to Ginsburg.
“The kind of raw excitement that surrounds her is palpable,” Carmon said. “There’s a counterintuitiveness. We have a particular vision of someone who’s a badass — a 350-pound rapper. And she’s this tiny Jewish grandmother. She doesn’t look like our vision of power, but she’s so formidable, so unapologetic, and a survivor in every sense of the word.”
So Ginsburg is planning to be on the bench when the Supreme Court decides mammoth issues like the future of the Affordable Care Act and a national right for gay couples to marry. She says she doesn’t know how the health care case will turn out. But like practically every court observer in the country, she has a strong hunch about which way gay marriage will go: “I would be very surprised if the Supreme Court retreats from what it has said about same-sex unions.”
The speed with which the country has already accepted gay rights was, she theorized, just a matter of gay people coming out, and the rest of the country realizing that “we all knew and liked and loved people who were gay.” She recalled Justice Lewis Powell, who told his colleagues he had never met a gay person, unaware that he’d had several gay law clerks. “But they never broadcast it.”
The National Organization for Marriage, a conservative group, recently demanded that Ginsburg recuse herself from the case since she had said that it would not be difficult for the American public to accept a ruling in favor of a national right to gay marriage.
Don’t hold your breath.