Justice Ruth Bader Ginsburg said in an interview Tuesday that she does not favor proposals put forth by some Democratic presidential candidates who have advocated changing the number of Supreme Court justices if the Democrats win the presidency.
Ginsburg, who got herself in trouble criticizing candidate Donald Trump in 2016, this time was critical not of any particular Democratic contender, but of their proposals to offset President Trump’s two conservative appointments to the court.
“Nine seems to be a good number. It’s been that way for a long time,” she said, adding, “I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”
Several Democratic candidates have indicated an openness, if they were to win the presidency, to adding to the number of justices on the Supreme Court to reduce the power of the current conservative majority. Some would also like to enact term limits for Supreme Court justices.
The term-limits proposal doesn’t worry Ginsburg because she sees it as unrealistic, given that the Constitution specifies life terms for federal judges and because, as she puts it, “Our Constitution is powerfully hard to amend.”
Indeed, it takes the votes of two-thirds of the Senate and the House, and three-quarters of the state legislatures.
But, in contrast, as Ginsburg notes, there is no fixed number of justices specified by the Constitution, and the court over the course of history has had as few as five justices and as many as 10.
Roosevelt’s proposal would have given him six additional Supreme Court appointments, expanding the court to 15 members. And Ginsburg sees any similar plan as very damaging to the court and the country.
“If anything would make the court look partisan,” she said, “it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’ ”
That impairs the idea of an independent judiciary, she said.
“We are blessed in the way no other judiciary in the world is,” she noted. “We have life tenure. The only way to get rid of a federal judge is by impeachment. Congress can’t retaliate by reducing our salary, so the safeguards for judicial independence in this country, I think, are as great or greater than anyplace else in the world.”
But the whole notion of the country’s independent judiciary hinges on public trust, she noted.
“The court has no troops at its command,” Ginsburg pointed out, “doesn’t have the power of the purse, and yet time and again, when the courts say something, people accept it.”
She recalled Bush v. Gore, the controversial case in which the Supreme Court stopped a Florida recount in the 2000 presidential election.
“I dissented from that decision,” Ginsburg said. “I thought it was unwise. A lot of people disagreed with it. And yet the day after the court rendered its decision, there were no riots in the streets. People adjusted to it. And life went on.”
Ginsburg’s interview with NPR was wide-ranging, discussing, among other things, her health. She has had three major bouts with cancer over the past 20 years. In 1999, she underwent surgery for colorectal cancer, followed by nine months of chemotherapy and radiation. In 2009, she underwent surgery for pancreatic cancer, and late last year, for lung cancer.
Outlasting the naysayers
Ginsburg’s iconic status with women, in particular, and her leadership of the liberal wing of the Supreme Court mean any health news involving the tiny, 86-year-old justice can cause something of a panic in certain quarters.
Ginsburg is not oblivious to health concerns, but she waves away worries about her future.
“There was a senator, I think it was after my pancreatic cancer, who announced with great glee that I was going to be dead within six months,” she recalled. “That senator, whose name I have forgotten, is now himself dead, and I,” she added with a smile, “am very much alive.”
That said, most cancer patients do worry. Some view one cancer, never mind three, as a sword of Damocles over their heads. So how does Ginsburg manage? She said she has followed the advice of the opera singer Marilyn Horne, who was asked about her pancreatic cancer diagnosis in 2005.
“And she said, ‘I will live,’ not that ‘I hope I live,’ or ‘I want to live,’ but ‘I will live.’ ”
But fighting cancer is wearing and hard. How does she manage her work?
“The work is really what saved me,” she said, “because I had to concentrate on reading the briefs, doing a draft of an opinion, and I knew it had to get done. So I had to get past whatever my aches and pains were just to do the job.”
Her lung cancer last year, however, was the first time she did not have her beloved husband, Marty, with her. He died in 2010, and she said she misses him every day, maybe especially now.
Her children have visited frequently to lift her spirits, but her husband, she said, always was there before, taking care of her, sleeping next to her on some uncomfortable cot or couch in the hospital, despite his bad back.
He looked after her so completely that at one point, when she was getting a blood transfusion, he ripped out the IV because he noticed that one of the antigens did not match.
“I might not have lived if he hadn’t been there,” she said.
And then there were the more subtle ways that he buoyed her spirits and goaded her to do the physical therapy that she needed to get stronger again. Famous for his culinary skills, he would make meals for her. He would entertain her, reading her short stories, and he served as her news clipping service, she said.
He would find the articles in the newspaper that would interest and amuse her. With a wistful smile, she said, “I miss him every morning.”
She added, “I have no one to go through the papers and pick out what I should read.”
The late-Justice Stevens to Ginsburg: “Stay longer” than he did
The interview followed Ginsburg’s speech earlier in the day at the private funeral for Justice John Paul Stevens, who died July 16 at the age of 99.
Just days before, Ginsburg had been with him at a conference in Portugal.
Stevens retired from the court in 2010 at age 90, and, as the two traveled in a car together less than two weeks ago, Ginsburg told him her dream.
“I said that my dream is that I will stay at the court as long as he did,” she said. “And his immediate response was, ‘Stay longer!’ ”
Rebutting the partisan label for the Supreme Court
Like other members of the current Supreme Court, liberal and conservative alike, Ginsburg rebuts the notion that the court is a partisan institution.
Yes, it is definitely more conservative than she would like, and, yes, she has strong disagreements with some of her colleagues on some issues. But overall, she maintains that the justices are working well together.
She notes with a grin that President Trump’s two appointees to the court — Neil Gorsuch and Brett Kavanaugh — were law clerks in her early years as a justice. And she points out that this term she assigned each of them important opinions to write in cases where she was the senior justice in the majority and the chief justice was in dissent.
No “going back to old ways”
Interestingly, when the justice was asked to name her greatest accomplishments, she cited not her work on the court, but her work as a lawyer in the 1960s and ’70s, leading the legal fight for gender equality in the law.
Asked whether she worries that the current conservative court majority will retrench on questions of gender equality, she replied, “I don’t think there’s going to be any going back to old ways.”
And she noted that the late Justice Byron White, who was one of the two dissenters in Roe v. Wade, the landmark case that made abortion legal in the United States, voted on her side in all the gender parity cases.
“The world has changed really in what women are doing,” she said, and there’s no going back.
Does she have any regrets?
Regrets? she asked, in amazement.
“I do think I was born under a very bright star,” she said. “I get out of law schools with top grades; no law firm in the city of New York will hire me; I end up with a teaching job and time to devote to evening out the rights of women and men.”
And on and on, Ginsburg thinks she has led a very lucky life.
Editor’s note: The author interviewed Ginsburg in connection with a speech she will be giving before the American College of Surgeons. At that event, Ginsburg’s surgeon will be sworn in as the organization’s new president.