It is January of 2013. President Obama was just inagurated for a second term. You are Supreme Court Justice Ruth Bader Ginsburg. We say you should resign from your position as a justice on the court.
To provide some context: Ginsburg is a liberal justice who has become an icon. She is especially known for her work on women’s rights issues. The court is ideologically even. There are 4 liberals and 4 conservatives, with one moderate who tends to learn conservative.
The president nominates canidates to be supreme court justices and the senate confirms them. At this time the senate was democractic by a relatively small margin.
Ginsburg is 81 years old, and has had health issues in the past. Currently she appears to be healthy. In real life it was widely speculated that she would resign. When asked about it, she said that she had no plans to and she is still on the court today. We say that instead she should have resigned after President Obama’s inauguration.
Case:
- philosophically, judges ought to retire to reflect changes in generations
a) the court should reflect the makeup of the country to ensure just decisions
i) this is important because as much as we want to imagine that justices just consider cases on the legal merits, their own life experiences inevitably come into play
(1) for example, Sotomayor has talked about how growing up as a Latina woman affects the way she looks at justice and injustice in the legal system
ii) When the court doesn’t reflect the current makeup of the country, it is more likely that decisions are made which are unjust
(1) simply because the justices can’t relate to the issue
(a) For example, Scalia’s dissents on sodomy laws. He has written comparing same sex relations to bestiality and incest
(i) fundamentally he grew up at a time when homosexuality was considered to be a great evil
- so he can’t conceive of a country where LGBT individuals are accepted
a. We can also see this in the fact that younger people support same sex marriage at much higher rates than the rest of the population
iii) even though Ginsburg herself isn’t necessarily bigoted, philosophically, she should set the precedent that justices should retire to allow younger justices who better represent the country to take over
b) there are issues, like technology, which older justices are unable to fully grasp
i) thus they should resign to allow younger justices to take over
(1) fundamentally, no matter how smart the justices are or how adept they are at learning new material, it is near impossible for them to truly understand modern technology cases
(a) we can see this in cases where a supreme court justice asked why anyone other than a criminal would have two cell phones
(b) or another case where
c) constitutional intent
- actor analysis
a) doesn’t want conservatives
b) wants to leave on a high note
c) can be an advocate
her politics
philospohy on justices
response to politicization:
- already political, no meaningful change
- she is political, so she doesn’t care about politicizing the court → she cares more about not getting conservatives on the court
- but even if you don’t buy this and you think the philosophical argument about politicization in an actor case is legitimate, her replacement is probably going to be less political than her -- so in the long term the court has less politics
