One hates to say it, but Wednesday's Supreme Court decision to let a Texas antiabortion law stand — for now — must be seen as part of former Justice Ruth Bader Ginsburg's legacy, a glaring lapse that must be considered alongside all her genuine accomplishments in fighting for women's rights.
Ginsburg, of course, isn't on the court: She died last year. But Justice Amy Coney Barrett, a Donald Trump appointee, is on the court; she provided the crucial fifth vote to let the Texas law go into effect. And Barrett is on the court as a result of Ginsburg's own choice not to retire back when President Obama and a Democratic-controlled Senate could have named and confirmed her replacement, respectively.
In 2013 — at the age of 80, having twice survived cancer — Ginsburg said she had no plans to retire. "It really has to be, 'Am I equipped to do the job?'" she said. "I was so pleased that this year I couldn't see that I was slipping in any respect." What this assessment neglected, of course, was any planning for the possibility that by delaying her retirement, her seat on the then-closely divided court might eventually go to a conservative and create an open field for the court to reverse Roe v. Wade. That is exactly what has happened.
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You don't need the benefit of hindsight to arrive at this conclusion. The possible ramifications of Ginsburg's choice were apparent at the time. "Resigning would be a selfless gesture that would only burnish her progressive legacy. Staying could help push the Court further to the right," James Oliphant wrote for National Journal that year. "It's time for her to fly." Mostly, though, those sensible nudges were buried under a wave of RBG iconography and suggestions that Ginsburg's left-of-center critics were being sexist.
One hopes Stephen Breyer has taken notice.
Breyer, 83, is the oldest of the court's three remaining liberal justices. Democrats hold the White House and the Senate, for now, and progressives have been pushing for his retirement while it's still possible for the party to fill his seat. If not — if, somehow, Republicans get to appoint his replacement — the result could be a 7-2 court stacked in favor of conservatives. Breyer has been making sounds about stepping down. Ginsburg's example should be a warning to him.
