‘Notorious RBG’ and a liberal Supreme Court disaster

The last year has shown the power of a 6-3 conservative majority on the Supreme Court. Conservatives had a 5-4 majority for years and were not able to overturn Roe v. Wade or get rid of affirmative action. Now, with a six-member majority, half of them appointed by former President Donald Trump, the conservative bloc on the Court has done both those things and more.

Liberals are furious, they outraged, they are depressed, they are hysterical — they are experiencing any number of intense emotions as they realize they are helpless to stop a united conservative majority. Some are angry at Trump and Senate Republican Leader Mitch McConnell, who strong-armed Trump’s nominees through the Senate.

But angry liberals should direct at least some of their anger in another direction — at the most celebrated liberal member of the court in a generation: the late Justice Ruth Bader Ginsburg.

In 2013, when Ginsburg was 80 years old, the oldest member of the Supreme Court, and had been through two serious bouts with cancer, many Democrats hoped she would retire while a Democratic president, Barack Obama, could choose her replacement and a Democratic Senate could confirm that replacement. That would keep Ginsburg’s seat in the liberal camp for another generation.

It was an extremely important moment for the liberal cause, which has relied on the court to implement policies that Democratic leaders would not or could not enact through legislation. Nearly every Democrat, including Obama, hoped Ginsburg would step down and allow the party to keep the liberal seat safe for another 20 or 30 years.

But Ginsburg refused. Some reasons were personal. “Her life revolved around love of her work,” a former clerk told the New York Times, adding that that became even more true of Ginsburg after the death of her husband in 2010. Other reasons were more political, especially in Ginsburg’s anticipation of the 2016 presidential election. “I think that Mother, like many others, expected that Hillary Clinton would win the nomination and the presidency,” Ginsburg’s daughter told the Times, “and she wanted the first female president to name her successor.”

It didn’t work out that way. The moment to replace Ginsburg with another liberal justice was lost. It was a particular disappointment for Obama, who invited Ginsburg to lunch at his private dining room in the White House in July 2013 to gauge her openness to retirement.

According to reports, Obama did not specifically discuss retirement but instead mentioned the 2014 midterm elections, then four months away, and his concern that Democrats might lose the Senate, meaning he might no longer be able to count on a friendly confirmation process for a Supreme Court nominee. Obama was oh-so diplomatic, but his words had no effect at all on Ginsburg’s determination to stay in her job.

“The effort did not work, just as an earlier attempt by Sen. Patrick Leahy, the Vermont Democrat who was then Judiciary Committee chairman, had failed,” the Times reported. “Justice Ginsburg left Mr. Obama with the clear impression that she was committed to continuing her work on the Court.”

The next few years were satisfying for Ginsburg. Liberal admirers started calling her “Notorious RBG,” as if she were a gang-banger blasting away at the right wing on their behalf. Those same admirers distributed photos of her lifting weights, implying that Ginsburg, then in her mid-80s, was in such great shape that she might go on forever. In 2017, Politico published an article headlined, “I Did Ruth Bader Ginsburg’s Workout. It Nearly Broke Me.” It was written by a man in his 20s.

But the fact was, Ginsburg was a woman approaching 90 with a long history of serious cancer. In late 2018, the pancreatic cancer she suffered nearly a decade earlier reappeared. She died on September 18, 2020 at age 87.

President Trump was ready to nominate Ginsburg’s successor, 48-year-old Amy Coney Barrett, and Sen. McConnell was ready for the confirmation. Democrats cried foul, accusing Republicans of rushing things, but the deal was done. Ginsburg had made a bet that she would be replaced by a Democrat, and she lost.

The consequences for the Supreme Court were enormous. A 5-4 conservative majority that empowered a swing voter to make things more equal — a role often played by Republican appointee Anthony Kennedy — became a 6-3 majority that reversed Roe and ended affirmative action. Angry Democrats are lashing out at Republicans. But Ginsburg’s decision helped create this catastrophe for liberals.

This content originally appeared on the Washington Examiner at washingtonexaminer.com/opinion/notorious-rbg-and-a-liberal-supreme-court-disaster.

Byron York is chief political correspondent for The Washington Examiner.