Federal Courts and Nominations

Court icons Scalia and Ginsburg: Together at the peak

By Richard Wolf

February 13, 2015


WASHINGTON – The oldest and, some would argue, wisest justices on the Supreme Court are at the top of their game – and are fast approaching their day of reckoning.


It’s not their health that’s at issue, though together Justices Ruth Bader Ginsburg and Antonin Scalia have lived more than 160 years. Nor is it their acumen; Ginsburg still works assiduously into the wee hours of the night, while Scalia writes and rails more provocatively than his colleagues.


What looms ahead for these two legal icons is a political reckoning. They must balance their roles as leaders of the court’s conservative and liberal wings against the risks involved in sticking around too long – or leaving too soon.


Ginsburg has faced down suggestions that she retire while President Obama, who she admires, can nominate her successor. Scalia, safely ensconced during a Democratic administration, would come under similar pressure if a Republican is elected in 2016.


The two responded matter-of-factly to the retirement question during a 90-minute Smithsonian Associates forum at George Washington University last week. “I’ll get out as soon as I’m not doing the job that I’m supposed to do,” Scalia said. Ginsburg has said the same, but she acknowledged that in many court systems, they would be forced out by dint of age.


It’s not that simple, however. The crude actuarial calculation for any aging justice: mis-time your departure, and the wrong president could write the epilogue to your legacy.


Not since 1991, when President George H.W. Bush replaced Thurgood Marshall with Clarence Thomas, has a potential Supreme Court vacancy carried such potential significance:


• If Scalia or his fellow 78-year-old colleague, Anthony Kennedy, departs under a Democratic president, the entire court could swing to the left. Both were named by President Reagan, in 1986 and 1988.


• If Ginsburg or her 76-year-old colleague, Stephen Breyer, leaves under a Republican president, the current right-of-center majority could become entrenched. The pair came to the court under President Clinton in 1993 and 1994.


“Obviously, an incredible amount rests on this next presidential election,” says Curt Levey, president of the conservative Committee for Justice. “The Supreme Court could take a dramatic turn in either direction.”


The last six vacancies illustrate how most presidential nominations have only a minimal impact on the court’s composition. Clinton’s nominees, President George W. Bush’s choices of John Roberts and Samuel Alito, and President Obama’s choices of Sonia Sotomayor and Elena Kagan all replaced justices of relatively similar ideological persuasions.


Two of those changes were more significant than the others: Ginsburg replaced Byron White, who had become a more moderate voice after his nomination by President Kennedy. Alito replaced Sandra Day O’Connor, another Reagan nominee, who had become the swing vote on the court.


But if any of the four justices now between 76 and 81 years of age were to depart under a president of the opposite party – particularly Ginsburg or Scalia – the ideological swing could be much more dramatic.




Ginsburg has said she wants to emulate the late Justice Louis Brandeis, who retired at 82 after 23 years on the court. She is rapidly approaching both goals.


“Of course, I would want someone who views the Constitution the way I do to pick my successor,” she told USA TODAY in 2013. The founder of the Women’s Rights Project at the American Civil Liberties Union is well aware the next president could be a woman – the wife of the man who nominated her.


“Yes,” she said during the 2013 interview, “and wouldn’t that be fantastic.”


For two years, Ginsburg has beaten back pressure from some liberals in the legal community to step down while Obama remains in office. Now that Republicans control the Senate – and the confirmation process – those calls have subsided.


Still, her health remains a concern. She had colon cancer in 1999, pancreatic cancer in 2009 and a stent implanted during a heart procedure in November. She has yet to miss a day on the bench.


At the same time, Ginsburg has become the darling – if not a diva, her true goal – of the left. Tiny and soft-spoken, she is at the peak of her power as the high court is inundated with high-profile cases: Obamacare. Voting rights. Same-sex marriage.


Recent years have elevated Ginsburg’s profile to the point where there are bobbleheads, a Ruth Bader GinsBlog, and T-shirts emblazoned with the moniker “Notorious R.B.G.”


“When all this started, I had to ask my law clerks, ‘What is this Notorious R.B.G.?'” she told third-year law students at Georgetown University last week. She also warned that the poor will be hurt most by abortion restrictions, and that campaign spending is “reaching the saturation point.” They gave her a standing ovation.




Scalia has faced none of the retirement talk that has pestered Ginsburg while Obama occupies the White House. And for good reason.


He is the intellectual leader of the nation’s conservative legal theorists. His twin pillars of originalism and textualism, involving strict adherence to the Constitution and the letter of the laws as written, have gained adherents over the years.


To Scalia, that means “giving the Constitution the meaning it had when it was adopted” and “bringing the court back to the task of interpreting a text fairly, not injecting policy views into it,” he said during an appearance in Mississippi in December.


Kagan, his hunting buddy and ideological opposite, acknowledged at the same event that Scalia’s theories have had an “enormous” impact. “He has won that battle,” she said.


On the bench, Scalia is one of the most active and incisive questioners. And as he does every year, he leads his fellow justices in quips that elicit laughter in the courtroom – 26 times over 21 days since October, according to tabulations by Boston University law professor Jay Wexler.


Like Ginsburg, Scalia is a hot ticket on the speaking circuit. Since last summer, he has given at least 20 speeches to Ginsburg’s 27, according to the web site SCOTUS Map, which tracks the justices’ public appearances. Only Sotomayor has kept up a similar pace.


For now, it seems, neither Ginsburg nor Scalia is giving retirement much thought. Scalia will be the subject of a new play, The Originalist, that opens in Washington, D.C., next month. The two of them will be feted in a comic opera, Scalia/Ginsburg, opening in Virginia in July.


“These guys are sort of becoming part of pop culture,” says Doug Kendall, president of the liberal Constitutional Accountability Center. “They do have, at this point, enormous influence on the court’s jurisprudence and the court as an institution, and their legacy is still being made.”

More from Federal Courts and Nominations

Federal Courts and Nominations
January 17, 2024

The Leadership Conference on Civil and Human Rights Sign-On Letter Prioritizing Diverse Judges

Dear Senator, On behalf of The Leadership Conference on Civil and Human Rights and the...
Federal Courts and Nominations
July 31, 2023

Liberal justices earn praise for ‘independence’ on Supreme Court, but Thomas truly stands alone, expert says

Fox News
Some democrats compare Justice Clarence Thomas to ‘Uncle Tom’ and house slave in ‘Django Unchained’
By: Elizabeth B. Wydra, By Brianna Herlihy
Federal Courts and Nominations
July 7, 2023

In Her First Term, Justice Ketanji Brown Jackson ‘Came to Play’

The New York Times
From her first week on the Supreme Court bench in October to the final day...
By: Elizabeth B. Wydra, by Adam Liptak
Federal Courts and Nominations
July 8, 2023

The Supreme Court’s continuing march to the right

Major legal rulings that dismantled the use of race in college admissions, undermined protections for...
By: Elizabeth B. Wydra, by Tierney Sneed
Federal Courts and Nominations
June 25, 2023

Federal judge defends Clarence Thomas in new book, rejects ‘pot shots’ at Supreme Court

A federal appeals court judge previously on short lists for the Supreme Court is taking the rare...
By: Elizabeth B. Wydra
Federal Courts and Nominations
May 1, 2023

Supreme Court, done with arguments, turns to decisions

Roll Call
The justices have released opinions at a slow rate this term, and many of the...
By: Brianne J. Gorod, By Michael Macagnone