In August 2013, Ruth Bader Ginsburg was 80 years old, Barack Obama was president and reporters were asking the justice directly why she wouldn’t retire. Her answer was characteristically assured: she would remain as long as her health and intellect permitted. There would be another president after Obama, she reasoned, and she was optimistic about whoever came next.
It was an understandable calculation for someone who had spent her career overcoming improbable odds. It was also, in retrospect, a spectacularly unfortunate wager on American politics. Ginsburg died in September 2020.
Donald Trump nominated Amy Coney Barrett to replace her and a Republican Senate confirmed Barrett 52-48, cementing a 6-3 conservative majority that remains unchanged today. Six years later, Ginsburg's predicament has returned, albeit with a reversal of political fortunes. The Democrats' victory in Tuesday's midterm elections means Republicans will lose control of the Senate in January.
And, suddenly, the two oldest Supreme Court justices, Clarence Thomas, 78, and Samuel Alito, 76, have become the subjects of an uncomfortable calculation for conservatives: if either justice leaves the bench when Democrats control the Senate, Republicans could lose their chance to preserve the Supreme Court's 6-3 conservative majority, potentially putting decades of conservative judicial dominance at risk. The party that benefited so enormously from Ginsburg's refusal to retire now faces the possibility of experiencing its own version of her succession gamble. The irony is rich because Republicans have spent decades developing a sophisticated apparatus for shaping the federal judiciary, turning judicial appointments into an exercise in ideological vetting, institutional coordination and long-term political planning.
Yet the entire enterprise remains vulnerable to a perennially unmanageable variable: the life span and personal preferences of nine justices. Back to Thomas and Alito, who had an opportunity to retire under a Republican president with a Republican Senate: both indicated earlier this year that they intended to remain. Alito went further in October, saying he would serve through the current Supreme Court term, even if Democrats captured the Senate.
While observers may applaud the same judicial independence that Ginsburg exercised, a reflection of a system in which justices’ tenures are insulated from the electoral needs of political parties, the parallels are worthy of thought. Ginsburg passed up the opportunity to retire under a Democratic president, allowing Republicans to claim her seat. Thomas and Alito now risk repeating what many consider to have been a mistake on her part, potentially jeopardizing the conservative majority that Republicans gained from it.
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