Should liberals root for Ruth Bader Ginsburg to retire?

If she sticks around till 2017 and there's a Republican in the White House...

Justice Ginsburg
(Image credit: Kevork Djansezian/Getty Images)

In a unanimous 1-0 ruling, Supreme Court Justice Ruth Bader Ginsburg declared over the weekend that she has no plans to retire.

Ginsburg, 80, is the oldest member of a relatively old court, and some on the left have suggested that the reliably liberal justice ought to step down while President Obama still runs the White House so he can appoint a like-minded successor. Should she stay too long, she would risk leaving the bench under a Republican president whose choice for the top court could tip it to the right for years to come.

Back in 2011, Harvard Law Professor Randall Kennedy wrote in The New Republic that Ginsburg — and liberal Justice Stephen Breyer — should do the "responsible thing" and retire lest their legacies be "besmirched" should a Republican beat Obama in 2012 and then tap conservatives to replace them.

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"There is nothing wrong in principle with such a calculation," Kennedy wrote. "A justice should have a deep, even passionate, commitment to his or her judicial philosophy and therefore act within his or her lawful powers to advance that perspective."

This March, political scientist Jonathan Bernstein made a similar argument at Salon, saying that "just as [Ginsburg] was a liberal hero before serving on the Supreme Court, she can be a liberal hero again by leaving it."

Ginsburg, however, told the New York Times this weekend that she is unconcerned with electoral whims and is instead committed to doing her job as long as she is mentally fit to do so.

"There will be a president after this one, and I'm hopeful that that president will be a fine president," she said, adding that the current court was "one of the most activist courts in history," and that she wanted to remain as its liberal counterweight.

Last term, the court closed with a flurry of major decisions, including two landmark cases, each decided by a 5-4 ruling, on marriage equality. Looking ahead, several big cases are coming on affirmative action and religion — including one dealing with prayer as part of governmental activity, and another asking whether religious businesses can refuse service to homosexuals.

Ginsburg is slightly older than the average retirement age for modern justices. A 2006 study in the Harvard Journal of Law and Public Policy concluded justices since 1971 have retired at an average age of 78.7. The average retirement age of justices prior to that was 68.3.

And Ginsburg, who has served for 20 years on the high court since being appointed by President Bill Clinton in 1993, has served longer than the historical average tenure of 16 years.

Still, she has another 10 years to go before she would match Justice Oliver Wendell Holmes, Jr. as the oldest member ever to sit on the court. (Holmes was 90 when he retired.) And Ginsburg, who has survived two bouts with cancer, told the Times that though she has had to curtail some of her physical exertion in recent years, she remains in good health overall.

"I haven't gone horseback riding in four years," she said. "I haven't ruled that out entirely. But water-skiing, those days are over."

Questions about Ginsburg's future resumed earlier this summer when the justice fell and broke several ribs. But Ginsburg said then, as she did again this past weekend, that retirement should be based solely on the question, "Am I equipped to do the job?"

"As long as I can do the job full-steam, I would like to stay here," she told USA Today earlier this month. "Last term was a good example. I didn't write any slower. I didn't think any slower. I have to take it year by year at my age, and who knows what could happen next year?"

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