Why You Should Stop Being Angry at RBG

I’ve been crisscrossing the country for the last few years talking about Justice Ruth Bader Ginsburg and some of the brave and brilliant women who inspired her during her lifetime. It’s been hard not to notice that in every audience there are increasing numbers of people who are furious at her or at least harbor mixed feelings. They are angry that she didn’t retire from the court while Barack Obama was still president, so he could choose a liberal justice to replace her. They blame her death from cancer, shortly before Donald Trump lost to Joe Biden in 2020, for the consolidation of a conservative supermajority on the Supreme Court and the loss of Roe v. Wade. “I’m so angry she didn’t resign,” they tell me in disgust, or “She had such hubris.” Others are kinder and sigh, “If only she had resigned,” or, frustrated, implore “What was she thinking?” or “Why didn’t she resign when she could?” In fact, I’ve been asked this last question so many times I am now considering beginning my talk with the answer. I want to defuse the tension before I discuss this remarkable woman and what she did for our country. 

And since it’s Women’s History Month, and the month of Justice Ginsburg’s birthday (she would have turned 91 March 15), I’ve decided it’s time to share what I say publicly. So, you ask, why didn’t she resign at a time when she could have been replaced by a justice who shared her values or at least some of them, which would have saved the liberal majority on the Supreme Court? Why didn’t she follow the suggestions that had been made to her, subtly and not so subtly, and that might have prevented the unraveling of decisions such as Roe and kept abortion a right under federal law?

First, this premise itself is a questionable one. There are myriad factors that led to the current makeup of the Court. Senate Majority Leader Mitch McConnell’s refusal in 2016 to allow the Senate to consider Obama nominee Merrick Garland to fill the seat of Antonin Scalia is one. Another is Trump’s successful campaign to get Justice Kennedy to resign in 2018. So, it is certainly unfair to only focus on Justice Ginsburg’s death at an inconvenient time. 

While 47.3 percent retired, 44.5 percent of all high-court justices have died before retiring.

We’ve all read that Obama gently brought the topic of retirement up over lunch in the White House in July 2013 and that she demurred. Justice Ginsburg was a mortal like the rest of us; she didn’t have the gift of hindsight. During the Obama years, many people felt as if the future had arrived to stay, and I’m sure Justice Ginsburg thought, as many of us confidently did, that Hillary Clinton would win the 2016 presidential election. I never discussed this with her, but I am quite sure that had Justice Ginsburg known the unexpected twist that history would take, she would have responded to Obama’s inquiry differently. A lot of us can say that about a lot of things. 

That said, she clearly didn’t want to resign at that point, after serving a mere 20 years on the Court. Since the 1970s the average court tenure has been 28 years, and some justices have served much longer: William O. Douglas was on the Court for more than 36 years, and Clarence Thomas has sat on it for more than 32. 

Justice Ginsburg was extraordinarily fit for and committed to her job and believed she had a lot to offer her colleagues, the Court and the nation. She loved the work, which appeared to have become an even bigger part of her life, if that is possible, after her husband Marty died in 2010. She told me once that she hoped to model herself on fellow justice John Paul Stevens, who retired at 90 in 2010, as the third-longest-serving justice in the history of the Supreme Court with 34 years and six months of service. And she had before her eyes the frustrating experience of Sandra Day O’Connor, who retired early to take care of her ailing husband, only to see him soon enter a full-time care facility for dementia (and become attached to a new partner there), at a time when her service on the Court could arguably have been invaluable. 

In the days before her death, she dictated a message to her granddaughter, Clara Spera: “My most fervent wish is that I will not be replaced until a new president is installed.”

Nowadays we are accustomed to looking at the Court through polarized political lenses, but it’s important to remember that the Court has not always viewed itself this way, and neither has the nation. It’s almost unimaginable to us now that 31 years ago Justice Ginsburg herself was unanimously approved by the Senate. UNANIMOUS. It’s a word rarely heard in the political realm anymore. Whatever their political leanings and the political expediency of the moment, justices have often stepped down when they were ready. The decisions were not always political. 

It’s also easy to forget that many justices, not just Justice Ginsburg and her friend Scalia, have died in office. A 2010 study by Ross M. Stolzenberg and James Lindgren, published in the journal Demography and titled “Retirement and Death in Office of U.S. Supreme Court Justices,” found that while 47.3 percent retired, 44.5 percent of all high-court justices have died before retiring. RBG may have looked tiny and frail as she aged, but I can assure you she wasn’t planning on dying in office. She had fought and beat cancer five times and was extremely diligent about her health. I met her personal trainer, Bryant Johnson, who she described a few years before her death as the most important person in her life. She was proud of her more than two decades of intense one-hour workouts, which Johnson wrote about in his 2017 book, The RBG Workout: How She Stays Strong and You Can Too. 

But cancer caught up with her in 2018 and again in 2020. She wrote to me during the spring of 2020 that it wasn’t easy to do all her work and stave off cancer. But she did, for a while. Even in that summer, just a couple of months before she died, she told me she was preparing for the 2020 term, while, by the way, juggling the book we were working on together. In the end, Justice Ginsburg, like many other human beings, overestimated her physical strength. 

Which brings me to perhaps my most important point. At the end of her life, Justice Ginsburg suffered for her decision not to resign in 2013. At a certain point she knew this time the cancer would win. She was cognizant that she likely wouldn’t live until Biden took office, and that Trump would be able to replace her on the Supreme Court—the third Supreme Court justice he would appoint—and that the court would tilt even farther to the right. She knew what that meant for the nation. Imagine the weight of this knowledge on a woman who had dedicated her life to fighting for women and other minorities. 

[Read: “Justice Ruth Bader Ginsburg, Inspired by Great Women of the Past, Was a Generous Mentor of Younger Women.”]

My last communication with her was a month or so before she died. But my friend Nina Totenberg, the author of Dinners with Ruth: A Memoir on the Power of Friendships, reported that as RBG’s strength waned in the days before her death, she dictated a message to her granddaughter, Clara Spera: “My most fervent wish is that I will not be replaced until a new president is installed.” Justice Ginsburg was a brilliant and practical jurist: She knew that this wish was unlikely to be granted but she asked for it anyway. I hope it helped her pass with peace.

So, even if you dissent from any or all my arguments above, it’s time for you to forgive Justice Ginsburg for being human and to move on and deal with the cards as they have been dealt. We need to do a better job of protecting abortion and other reproductive rights and enshrine women’s rights in the Constitution. We need to learn from her strategies and opinions and build upon the work she began as an attorney and defended as a justice. I am not sure we can move forward together until we set aside judgment and anger. 

Having had the opportunity to get to know Justice Ginsburg, and to have learned from her, it makes me sad that her legacy is being tarnished by this anger. Let us remember her for what she did for our nation, instead of the unfortunate timing of her death.