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Why Ruth Bader Ginsburg Refused to Step Down

It was important to Ginsburg to be on the court to welcome Sotomayor and, a year later, Justice Elena Kagan. “She had a lot to give them as new justices,” her friend Judith Resnik, a Yale law professor, told me over the weekend. “She understood completely the centrality of critical mass.”

In 2010, Ginsburg’s husband, Martin Ginsburg, died after his own battle with cancer, and her focus on her work at the court became even more consuming. “Her life revolved around love of her work,” Newman remembers. “If you had a camera trained on her 24/7 the year I was a clerk, you would have seen her during almost all her waking hours reading, writing, editing, giving speeches — immersed in the law and the craft of judging.”

A few years later, when Ginsburg was in her early 80s and President Barack Obama was in his second term, calls for her to retire sounded mostly from male academics and writers. But Ginsburg by then had new celebrity status as the Notorious R.B.G.; in 2013, Shana Knizhnik, then a law student, started a Tumblr by that name to honor Ginsburg’s memorable dissent in the voting-rights case Shelby County v. Holder. In that case, Ginsburg compared the majority’s decision to stop requiring states and counties with a history of racial discrimination to get the approval of the Department of Justice before changing local voting rules, for example by closing polling places, to “throwing away your umbrella in a rainstorm because you are not getting wet.”

“She was a great framer of the issue in dispute, and she only became better at it over time,” says Goodwin Liu, another former clerk and a justice on the California Supreme Court. “The Shelby County dissent is the best version of that.” Ginsburg was suddenly the court’s chief popularizer, the role model for little girls that she never had for herself, a character on ‘‘Saturday Night Live,’’ the face on boxes of Judgmints and T-shirts (which she sometimes gave as gifts). “She had more freedom to craft her message because of her public status,” Liu says.

After interviewing people who knew Ginsburg, I wrote an article for Slate in late 2013 arguing that the public calls for her to retire then, however sensible (and now prescient), wouldn’t work. She was the senior member of the court’s liberal bloc, with the power to assign and more often write important dissents. She reached the pinnacle of her profession by refusing to let other people tell her what she could do. “The impression I got from her was that it was presumptuous for someone else to decide how and when you should end your judicial career,” says Margaret McKeown, a friend and a judge on the U.S. Court of Appeals for the Ninth Circuit. “That is such a personal decision. And when you have a mind as sharp as hers, why wouldn’t you continue?”

To some liberals, the answer seemed straightforward. Erwin Chemerinsky, dean of the law school at the University of California at Berkeley, wrote an op-ed for The Los Angeles Times in March 2014 urging Ginsburg to step down. “I feared the Republicans would retake the Senate in November 2014, and it seemed so unknown what would happen with the presidential election in 2016,” he told me recently. “If she wanted someone with her values to fill her seat, the best assurance was to leave when there was a Democratic president and Senate. Obama could have gotten anyone he wanted confirmed at that point.” Ginsburg’s decision to stay “was a gamble.”

In an interview with Elle Magazine in the fall of 2014, Ginsburg said that “anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided.” No one as liberal as she was could get confirmed, she suggested. She noted that her work production hadn’t slowed. “She had beaten the odds every day of her life and had weathered serious illness in 1999 and 2010,” Resnik says. “Fairly, from her perspective, she saw herself as able to manage the health challenges of aging.”

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