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You thought God was an architect, now you know


Looking through this thread of very smart people — and they were far from the only ones — trying to convince themselves that people were wrong to criticize Ruth Bader Ginsburg for not retiring before the 2014 midterms is grimly fascinating:

The second piece is highly representative of the genre — start out with a concise, unanswerable argument for why she should obviously resign, and then pivot to a bunch of mystical gobbledygook, but concluding by declaring the latter the winner by fiat. I don’t think it’s hard to see what was going on here — intelligent liberals who (for good reason!) greatly admired RBG knew perfectly well what the right thing to do was, but who also knew by this point that she wasn’t going to do it, and so had a felt need to rationalize it. It’s very human response if not a rationally defensible one.

The first-cited Lithwick piece, however, contains some specific information that I think helps explain why RBG made her deeply tragic decision not to retire strategically, with the O’Connor quote being crucial. Here’s the sequence of events for those who don’t remember:

  • O’Connor is reported to have expressed dismay when Gore was declared the winner because it would prevent her from retiring strategically. This did not stop her from casting the deciding vote declaring his opponent the winner of the election based on a theory so specious the Court declared it should never be used as precedent.
  • In part because her Election Day comments were reported and in part of some measure of disillunionment with the Bush regime, O’Connor did not resign during Bush’s first term.
  • Meanwhile, William Rehnquist’s health — which had been bad for quite a while — got even worse, as he suffered from throat cancer and had to get a tracheotomy. Rehnquist made a reckless gamble identical to RBG’s, and it was 150,000 or so votes in Ohio from the same result, but he rolled the dice and hit the point.
  • O’Connor, whose husband’s dementia was rapidly accelerating, decided to retire after the election, but expected Rehnquist to retire first and for her to follow in 2006.
  • Rehnquist, however, remained stubborn and refused to retire, compelling O’Connor to do so after the conclusion of the 2004-5 term.
  • Before John Roberts could be confirmed as her replacement, however, Rehnquist died, leading to Roberts being confirmed as Chief and Alito as O’Connor’s replacement.
  • During this time, John O’Connor’s health had deteriorated so rapidly that Sadra could only spend time with him in a physical sense. By all accounts, as Lithwick says, she therefore felt she retired too early and resented Rehnquist for forcing her hand. It is very possible, although not certain, that had Rehnquist resigned in July 2005 she would have been replaced by Obama. (We should also remember that when it comes to pro-Roe people who could have saved Roe but didn’t, O’Connor is also at the very top of the list!)

I think when Ginsburg suggested to friends and writers that O’Connor’s retrospective regret played a significant role in her decision she was telling the truth, and it’s likely that at least subconsciously things working out for Rehnquist probably did too. This is not a defense — she should have known better — but I think it’s a significant part of the explanation. Alas, history is no more respectful of stare decisis than Sam Alito.

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