Ruth Bader Ginsburg was right to keep working until the end

U.S. Supreme Court Justice Ruth Bader Ginsburg participates in taking a new family photo with her fellow justices at the Supreme Court building in Washington,…
U.S. Supreme Court Justice Ruth Bader Ginsburg participates in taking a new family photo with her fellow justices at the Supreme Court building in Washington,…
Image: Reuters/Jonathan Ernst
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Supreme Court justice Ruth Bader Ginsburg died from complications of pancreatic cancer today at age 87. She leaves behind a legacy as a fierce advocate for gender equality and women’s rights, as well as a decisive voice on the highest US court for progressive causes ranging from immigration to accessible healthcare and affirmative action.

For the many Americans who admired Ginsburg, the news of her death is painful on multiple levels. Not only has the nation lost a woman widely regarded as a boundary-shattering feminist icon, her loss also puts into immediate question the future of the Supreme Court, which at the time of her death had four judges appointed by Democratic presidents (including Ginsburg) and five appointed by Republicans. If Donald Trump and Senate majority leader Mitch McConnell are able to push through a nomination before the November election in the US, or if Trump is re-elected, the next justice will almost certainly be conservative, determining the court’s ideological makeup for many years into the future.

The stakes are incredibly high, as Ginsburg herself was well aware: “My most fervent wish is that I will not be replaced until a new president is installed,” she said just days before her death. In the days and weeks to come, the public discourse may well return to the question of whether Ginsburg was right in refusing to succumb to the pressure to retire during Barack Obama’s second term, which critics say would have cleared the way for another liberal judge to be appointed in her place.

Ginsburg was skeptical about that logic. “When that suggestion is made, I ask the question: Who do you think the president could nominate that could get through the Republican Senate? Who you would prefer on the court than me?” she told NPR’s Nina Totenberg in 2019. Indeed, it’s worth remembering that Republicans led by McConnell successfully blocked Obama’s second-term Supreme Court pick, Merrick Garland, from joining the bench, refusing to consider a new appointment until the 2016 presidential election. McConnell indicated earlier this year that he’d have no such scruples under Trump. Within hours of the announcement of Ginsburg’s death, he vowed that her replacement would get a vote on the Senate floor.

There may have been a gendered element to the calls for Ginsburg to give up her spot on the court. She observed in interviews that people hadn’t leaned hard on justices John Paul Stevens and Stephen Breyer to step down, despite their advanced age, and she purportedly thought that justice Sandra Day O’Connor had effectively been forced out of the court before O’Connor was ready to leave. “I think that story is playing in the back of Ginsburg’s head when she’s like, No man is going to tell me it’s my time, because I saw that happen to a person who really, I think, in many ways was her sister at the Supreme Court,” journalist Dahlia Lithwick explained last year.

Beyond these considerations, Ginsburg’s decision to stay on the Supreme Court and continue working right up until her death—all while dealing with five episodes of cancer over the years—was deeply personal. “The work is really what saved me, because I had to concentrate on reading the briefs, doing a draft of an opinion, and I knew it had to get done,” she told Totenberg in 2019, discussing her dedication to the court even as her health suffered. “So I had to get past whatever my aches and pains were just to do the job.”

Ginsburg’s energy and resilience were among the many traits that made her so beloved. As a 2017 article in Politico describing the octogenarian judge’s arduous daily workout routine recounts, she famously said after her husband’s death that the most important person in her life was her personal trainer. This July, announcing that she’d undergone treatment for a recurrent cancer, she emphasized that she had no plans of going anywhere. “I have often said I would remain a member of the court as long as I can do the job full steam,” Ginsburg said. “I remain fully able to do that.”

Ginsburg was far from alone in her instinct to continue working through cancer and into her late eighties. As clinical psychologist Wendy Lichtenthal recently explained, for those who are ill and contemplating the end of their lives, “Your work can be a legacy, and your choice to work can be a legacy.”

Ginsburg found great meaning in her work, and staying on the Supreme Court until her death empowered her to continue fighting for what she thought was right. As recently as this July, she wrote a scathing dissent to a majority opinion that allowed employers to refuse contraceptive coverage for workers on religious or moral grounds, writing that the decision “leaves women workers to fend for themselves.” Ginsburg stayed on the court because the only person she could fully trust to keep fighting for Americans’ rights was herself. She didn’t want to leave anyone to fend for themselves.