Supreme Court Justice Ruth Bader Ginsburg turns 81 in March, just as the court starts the really heavy lifting.
Barring the unexpected, the widow and two-time cancer survivor will still be pulling her judicial weight.
With the high court set to begin its new term Monday, Ginsburg, like her eight black-robed colleagues, used the court’s summer recess to both refresh from past labors and position for the future. Some taught classes in swell locations. Some lectured to the public. Some, like Ginsburg, clarified career plans and cast a well-aimed stone or two.
“As long as I can do the work full steam, I will stay on the court,” Ginsburg told National Public Radio on Sept. 12. “But when I feel myself slipping, when I slow down in my ability to write opinions with fair dispatch, when I forget the names of cases that I once could recite at the drop of a hat, I will know.”
The oldest current justice, Ginsburg used multiple interviews since June to dampen the retirement speculation that now inevitably shadows her. Pointedly, she also used the interviews and public appearances to criticize decisions by the court’s slim conservative majority. These included, she said, the 2012 term’s “worst” decision: knocking out a crucial plank of the 1965 Voting Rights Act
“That’s an example of striking down legislation on a subject that the people in the political arena are better informed about than the court is,” Ginsburg said at the National Constitution Center in Philadelphia in early September.
It’s rare for members of the court to settle scores in public. More typically, summer is a time to heal wounds from hard-fought legal battles. Classrooms, in particular, can rejuvenate the justices, particularly when they are in exotic locations.
Chief Justice John Roberts Jr. spent two weeks in Prague teaching a class about the Supreme Court. Justice Elena Kagan joined Justice Anthony Kennedy in Salzburg, Austria, in July to teach a three-week class on “Fundamental Rights in Europe and the United States.” The course, sponsored by the University of the Pacific’s McGeorge School of Law, gave Kagan, a 53-year-old Democratic appointee, and Kennedy, a 77-year-old Republican appointee, an off-Capitol Hill chance to bond.
“Their collaboration was extremely effective, and from what I could see they really enjoyed working together in this way,” John Cary Sims, a McGeorge law professor who served as on-site director of the Salzburg program, said in an email interview. “One afternoon, they stood together and smiled, smiled, smiled while each student had a picture taken with them.”
Kagan and Kennedy are “both extremely gifted teachers,” Sims noted. At the same time, he observed that the possibility that summer bonding could lead to easier judicial collaboration, while a “sensible hypothesis,” is also “not one that outsiders are likely to be able to evaluate.”
Court watchers, whether professional or amateur, must often seize on small observations in hopes of understanding the relationships among justices. In June, for instance, conservative Justice Samuel Alito upset court decorum when he visibly rolled his eyes and shook his head while listening to Ginsburg read a dissent. During her summer interviews, Ginsburg brushed off the episode.
On a more congenial note, Kagan told a University of Kentucky audience in mid-September that she has been bonding with conservative Justice Antonin Scalia over hunting. The two ideological opposites began by shooting clay pigeons together and have since graduated to game, including pheasant and antelope.
“I’ve enjoyed it,” Kagan said. “I enjoy spending time with him. He’s a great guy.”
Enjoyment, though, doesn’t necessarily translate to agreement. Kennedy and Kagan disagreed in 28 percent of the cases decided last year, while Kagan and Scalia disagreed 32 percent of the time, according to figures compiled by Scotusblog.com, a nonpartisan website that closely monitors the court. Kagan and Ginsburg, by contrast, disagreed in only 4 percent of the cases.
Ginsburg, too, stressed during the summer how she has been able to find common ground with her ideological opposites, like Scalia. Both are opera buffs.
She told a New York state audience in July that a recent law school graduate is currently writing a comic opera, titled “Scalia/Ginsburg,” built around the theme that two people with notably different views can, nonetheless, respect and genuinely like each other.
“Collegiality of that sort is what makes it possible for the court to do the ever-challenging work the Constitution and Congress assign to us,” Ginsburg told the New York audience.
A liberal Democratic appointee who has served since 1993, Ginsburg is presumed to be timing her eventual retirement so her replacement will be selected by President Barack Obama. She has suggested that she might want to surpass the nearly 23-year tenure of the court’s first Jewish justice, Louis Brandeis. That would peg her retirement to mid-2016.
At the same time, Ginsburg has cited the 2006 departure of former Supreme Court Justice Sandra Day O’Connor as a potential cautionary tale. O’Connor was 75 and dealing with an ailing husband at the time of her retirement. Ginsburg’s husband has since passed away, and O’Connor has given some public indication that she misses the stimulating work at the high court.
During an interview this summer with Reuters, Ginsburg mused: “I wonder if Sandra regrets stepping down when she did?”