On Moral Cowardice: A Brief Riposte

To quote the 5-4 podcast, a preeminent legal investigatory show, there is no doubt that Ruth Bader Ginsburg was a “titan… a hero to many, and among her many incredible accomplishments there was a big mistake.” When I said in my review that Ruth Bader Ginsburg made a choice at the end of her life that endangered abortive rights, and indicted that act as moral cowardice, it was obviously not an indictment of her entire career. It would be impossible to sum up the incredible accomplishments of not only one of the most prolific female justices, but, in fact, one of the greatest liberal justices in American history in just a few points; but, to attempt the impossible is often my role as a writer. I am not a journalist, I do not imagine it would be a noble enterprise to be such a thing, I cannot say it would be particularly intellectually stimulating nor of value to society. But I can summate for you the power of her life in public service, in law, and why this critical decision of not retiring in 2013 when it was apparent that Democrats would no longer hold the House & the Whitehouse is worthy of critique.

The response is correct that Ruth Bader Ginsburg was one of very few women in her class at Harvard Law, as a matter of fact, she was pregnant and gave birth to her first child right before attending. Her first husband fought cancer while they both attended law school. Dealing with all of that, she still graduated top of her class. To call her a monumental and inspirational figure is an understatement. In her tenure as a litigant before the Supreme Court Ruth Bader Ginsburg served, as the respondent points out and no one denies, to absolutely help open the doors for women by articulating how holding women back in society also harmed men. In particular, in her final case before the Supreme Court (For clarity’s sake: her final case argued in front of the court instead of a case wherein she was serving on the court), she fought for women's rights to be obligated for jury duty. Nothing about that legacy is being disputed,saying that her decision not to step down in 2013 when Democrats held the Senate endangers her legacy and was cowardly.

In modern history, justices regularly step down when it becomes apparent that their opportunity to ensure their party gets to appoint an ideologically sufficient successor has arisen. This underscores a basic belief in the edifice of public office as a station separate from one’s personal life. It is, in fact, the most important value underscoring public service, as a divorce from the separation of self and role is the principal issue in the inane jurisprudence of such thinkers as Clarence Thomas. Justice Stephen Breyer also should have retired in 2013, he was only five years Ginsburg’s junior, and was already over 70 at the time. Under Obama’s first term, liberal Justices David Souter and John Paul Stephens stepped down, Stephens just ahead of critical 2010 midterms wherein the democrats would likely lose. In 2018, conservative justice Kennedy stepped down to keep his seat in GOP hands. So, in 2013, when public calls asked for Ruth Bader Ginsburg to step down, she made a statement that she intended to do the job until she couldn’t anymore. Furthermore, she asked rhetorically, and I quote from Reuters, “So tell me who the president could have nominated this spring that you would rather see on the court than me?” I am describing that statement as cowardice. As a matter of fact, I mean to imply that that statement was and is an affront to the numerous highly educated well principled female jurists that served America ten years ago and serve it well now. What else would it be called?  Unprincipled antifeminism? 

Not a word that I said could be construed as attacking her long legacy of public service, save of course for that final act. Ruth Bader Ginsburg had two extremely lethal types of cancer; pancreatic and colon cancer. First diagnosed in 1999 with colon cancer, the terror of pancreatic cancer assailed her from 2009 on. It was that eleven-year battle with pancreatic cancer that finally ended her life at 87. I am simply suggesting that powerful public servants that work for the public good deserve as much questioning at the end of their tenure as they receive earlier on. If we cannot question decision-making, how precisely are we supposed to learn to enact good judgment in our own lives? Ginsburg actively points out in the same interview with Reuters quoted above that the issue of her legacy is something that prevails upon “my own good judgment.” Thankfully, judgment is something we can critique and investigate. Her jurisprudence set women ahead and her vigor at defending it is not being questioned here, aside from the obvious fact that she stopped looking to defend it in the most obligatory way, thinking of her station as a trustee of the public good and instead imagining it as her sole sacrifice endangered her very good legacy. That legacy is actively being eroded before our eyes.

If we believe in liberal values of service, then we understand that the people appointed or elected to service are obligated towards their constituents. When one is serving as a member of a nine-person panel who have the powers of life and death, (do not forget, a predominantly Catholic and conservative Supreme Court is regularly upholding death penalty sentences wherein the defendant has been found innocent), one’s primary opportunity is to ensure ideological succession in defense of and deference to the rule of law one envisions as being proper. By not stepping down in 2013, Ruth Bader Ginsburg left America, a country she was a public servant of, in such a position that a man who lost the popular vote used a senate that also lost the popular vote (in comparison to their democratic minority party counterparts, Republican senators at the time had less actual votes in their favor) to appoint three Supreme Court Justices. Meaning, an inordinate number of people were put into lifetime positions against popular will. 

I have a very hard time fathoming how my criticism of a singular decision made by a Justice, someone we have endowed with the pinnacle of power in our nation, is meant to mar her entire legacy. I did not accuse her of some moral imperfection. And, in fact, if I had done so, that would be well within any understanding of liberal politics. It’s more surreal to imagine that an individual gets to be package wrapped with a bow of their highest accomplishments, never to be opened post mortem, but instead to be placed upon the unhappy hearth of a home where no gift recipients shall ever arrive. To seek perfection out of mortals, is not, and has never been, the goal of our nation's values. However, in assessing judgment, we are asked to call balls and strikes.