Ruth Bader Ginsburg’s Unexpected Legacy

By Jim Geraghty

Friday, June 24, 2022

 

Considering how overturning Roe v. Wade looked impossible, or extraordinarily unlikely, when Justice Antonin Scalia died on February 13, 2016, to many pro-lifers, today seems nothing short of miraculous.

 

Democrats who support abortion rights will point a lot of fingers in the weeks to come. They will blame Senate minority leader Mitch McConnell for refusing to hold confirmation hearings when Obama nominated Merrick Garland for the Supreme Court. They probably ought to assign some blame to Harry Reid for eliminating the filibuster for certain judicial nominees, which led to Republicans eliminating the filibuster for Supreme Court nominees. While his vote wasn’t decisive in either case, they will probably set aside some ire for Senator Joe Manchin of West Virginia for voting to confirm Neil Gorsuch and Brett Kavanaugh. They may well fume about the eleven Senate Democrats who voted to confirm Justice Clarence Thomas back in 1991.

 

But there’s one other figure whose decisions inadvertently but inevitably led to today’s decision: the late justice Ruth Bader Ginsburg. Back in 2013, President Barack Obama met with Ginsburg, with hopes that the then-80-year-old, two-time cancer patient could be persuaded to retire:

 

Mr. Obama had asked his White House counsel, Kathryn Ruemmler, to set up the lunch so he could build a closer rapport with the justice, according to two people briefed on the conversation. Treading cautiously, he did not directly bring up the subject of retirement to Justice Ginsburg, at 80 the Supreme Court’s oldest member and a two-time cancer patient.

 

He did, however, raise the looming 2014 midterm elections and how Democrats might lose control of the Senate. Implicit in that conversation was the concern motivating his lunch invitation — the possibility that if the Senate flipped, he would lose a chance to appoint a younger, liberal judge who could hold on to the seat for decades.

 

Senator Patrick Leahy reportedly had a similar conversation with Ginsburg, hoping to nudge her to retire, to ensure she would be replaced by a like-minded justice. At the time, Democrats effectively had 55 seats — 53 Democrats and Vermont’s Bernie Sanders and Maine’s Angus King. It was extremely likely that Obama could have gotten Garland or another philosophically aligned nominee confirmed by the Democratic-controlled Senate in 2013 or 2014.

 

But Ginsburg just wasn’t interested in retiring. After Ginsburg died in 2020, and President Trump and the GOP-controlled Senate replaced her with Amy Coney Barrett, many liberals realized Ginsburg had made a catastrophic mistake. By remaining on the court for another six or seven years, Ginsburg had denied Democrats their last, best chance to keep a majority on the Court that viewed the law the way she did.

 

Today’s decision was 6–3, but in his concurrence, Chief Justice John Roberts seemed significantly less enthusiastic about overturning Roe. It is more than fair to wonder if Roberts would have concurred with Thomas, Alito, and the rest if he was the deciding vote, and the other justices split four to four. In that scenario, it is likely Roberts would have attempted to find some narrowly tailored middle path.

 

In other words, Roe v. Wade probably wouldn’t have been overturned if Obama’s lunch with Ginsburg had convinced her to retire.