Associate Supreme Court Justice Ruth Bader Ginsburg died yesterday of pancreatic cancer complications. I had been expecting this; the Supreme Court had gotten very quiet in August. If you want to know who she was or how she lived her life outside the law, there are books, movies, and now, obituaries.
For myself, the most important fact about her passing is that the cancer that killed her was discovered in 2009. Pancreatic cancer kills in less than a year in a concerto of different agonies. When Ginsburg’s diagnosis was first announced, Rand Paul’s predecessor in the Senate, a Major League pitcher named Bunning, predicted that she would die within nine months; Ginsburg struck him out over 11 years.
A devout Shakespearean commentator, quoter, and actor, Ginsburg would have many Shakespearean epigrams on mortality to ponder. But the one forced upon her by legal briefs was this: whether a lawsuit was “ripe.” Literary lawyers reading this boilerplate checklist item hears in the inner ear a very different usage: the exchange of a son seeking to lead his dying father to the future after King Lear’s England:
Edgar: Give me thy hand; come on.
Gloucester: No further, sir; a man may rot even here.
Edgar: What, in ill thoughts again? Men must endure
Their going hence, even as their coming hither:
Ripeness is all. Come on.
Gloucester: And that’s true too.
Ripeness is all; timing is everything. For Ruth Ginsburg, her reputation as a lawyer rested on her brilliance as a tactician who knew when to fight a battle as much as whom to fight for. She knew when to raise 'em, when to hold ‘em, and occasionally, when to fold ‘em. Ginsburg’s strategy was described as building bedrock of precedent until she had created a tower, and that’s a matter of figuring out what goes where and when.
As a jurist, Justice Ginsburg’s most artful opinions addressed timing: WHEN. So in Exxon-Mobil Corp. v. Saudi Basic Industries Corp., she laid out the timing for how to get a federal court to stop a state court from violating constitutional rights. This turned out to be a decision with such overwhelming power that the Ninth Circuit Court of Appeals has refused to accept it for a decade.
Earlier this year, Ginsburg was presented with a petition from the Ninth Circuit Court of Appeals, which had decided a case regarding a law that penalized someone for helping a person threatened with deportation. The Ninth Circuit judges wanted to declare the entire law unconstitutional, rather than deciding whether the accused was guilty or innocent. It was clear that there were at least four votes to uphold the law, so Ginsburg convinced the court to condemn the Ninth Circuit’s “abuse of discretion” while opening the door for someone else to attack the law with a stronger case.
Ginsburg's most famous dissent, in the Lily Ledbetter pay discrimination case, also hinged on the issue of WHEN. The majority of justices in this case thought that Ledbetter had to complain at least once a year to the Equal Opportunity Commission about being shortchanged on pay to be eligible for compensation. But to Ginsburg, once you knew the IF, you only needed one WHEN.
Ginsburg's greatest strategy, however, had to be the one she adopted after she was told of her pancreatic cancer diagnosis. She knew it was not IF, but WHEN; and her plan was simple: not this nor the next decade.
In the end, time defeated her. “We are all times subjects, and time bids be gone” was urged upon her in 2009, so that she could make way for a successor congenial to her. She declined, and her last expressed hope was, it has been reported, that she not be succeeded till next year.
Another battle of timing has been joined, one of succession. Shakespeare was, of course, the playwright of succession: the question of who inherits power drives the plot in his history plays, and so Ginsburg’s death is truly Shakespearean in theme.
The fight over Ginsburg’s replacement is thought to be about one question: if abortion is to be legal. Certainly there is far more at stake, but the play turns on that dilemma. In reality, that's already decided; it’s not IF abortions are legal, it’s WHEN.
How many days does a woman have to decide? How many hours to get to the clinic? How many weeks before the door is closed? In the U.S., half the states by population and by acreage want women to have the right amount of time; all that can result is that the journey is made longer, and the hourglass to be filled with less sand. So long as there are states that protect it and railroads to get there, choice remains; it’s just fewer hours to make the right decision.
Within two hours of Ginsburg’s death announcement, Kentucky’s other Senator and the leader of the Republicans, explained there would be no IF; “President Trump’s nominee will receive a vote on the floor of the United States Senate.” But when?
Two Republican senators have stated they opposed a vote before the election. Democrats will do whatever they can to block a nomination, but for Republicans facing re-election , WHEN to decide overwhelms all else.
So again, it’s not IF, it’s WHEN. Some vote will occur, even if it is a vote to vote, but a decisional vote on a Trump nominee before the election will be the soggiest electoral wet blanket in history. If a justice is chosen, and confirmed, this single-issue voters’ incentive will evaporate. The victors’ bender and the losers’ depression will be legendary.
Thus, whatever the vote, it will be after the election, in November, December or January, during the ignominious lame duck session. As votes are counted and the Electoral College hangs out, Congress punches its last checklist items. Trump and his lackeys, if they call the timing, can make a recess appointment of a new justice, to ensure the vote occurs in the lame duck session.Those two months between November and January is the WHEN that will matter.
Of the four Senators who gave up their run, only Lamar Alexander’s intentions are unknown; meanwhile every Senator who lost a race will be asked to follow the will of their state, the nation, or conscience.
I hope someday we know what words of her favorite playwright and poet kept her spirits to the last. Personally, I like to think of her explaining that “of all the wonders that I yet have heard, it seems to me most strange that men should fear; Seeing that death, a necessary end, Will come when it will come."
Cyrus Sanai is a lawyer in private practice in Beverly Hills. He has written for Slate, The Washington Post, The Chronicle of Higher Education, and LA Weekly, among others.