Gingsburg dying wish: “I will not be replaced until a new president is installed”

Justice Ruth Bader Ginsburg, the demure firebrand who in her 80s became a legal, cultural and feminist icon, died Friday. The Supreme Court announced her death, saying the cause was complications from metastatic cancer of the pancreas.

The court, in a statement, said Ginsburg died at her home in Washington surrounded by family. She was 87.

"Our nation has lost a justice of historic stature," Chief Justice John Roberts said. "We at the Supreme Court have lost a cherished colleague. Today we mourn but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her, a tired and resolute champion of justice."

Architect of the legal fight for women's rights in the 1970s, Ginsburg subsequently served 27 years on the nation's highest court, becoming its most prominent member. Her death will inevitably set in motion what promises to be a nasty and tumultuous political battle over who will succeed her, and it thrusts the Supreme Court vacancy into the spotlight of the presidential campaign.

Just days before her death, as her strength waned, Ginsburg dictated this statement to her granddaughter Clara Spera: "My most fervent wish is that I will not be replaced until a new president is installed."

She knew what was to come. Ginsburg's death will have profound consequences for the court and the country. Inside the court, not only is the leader of the liberal wing gone, but with the Court about to open a new term, Chief Justice John Roberts no longer holds the controlling vote in closely contested cases.

Though he has a consistently conservative record in most cases, he has split from fellow conservatives in a few important ones, this year casting his vote with liberals, for instance, to at least temporarily protect the so-called Dreamers from deportation by the Trump administration, to uphold a major abortion precedent, and to uphold bans on large church gatherings during the coronavirus pandemic. But with Ginsburg gone, there is no clear court majority for those outcomes.

Indeed, a week after the upcoming presidential election, the court is for the third time scheduled to hear a challenge brought by Republicans to the Affordable Care Act, known as Obamacare. In 2012 the high court upheld the law by a 5-to-4 vote, with Chief Justice Roberts casting the deciding vote and writing the opinion for the majority. But this time the outcome may well be different.

That's because Ginsburg's death gives Republicans the chance to tighten their grip on the court with another Trump appointment that would give conservatives a 6-to-3 majority. And that would mean that even a defection on the right would leave conservatives with enough votes to prevail in the Obamacare case and many others.

At the center of the battle to achieve that will be Senate Majority Leader Mitch McConnell. In 2016 he took a step unprecedented in modern times: He refused for nearly a year to allow any consideration of President Obama's supreme court nominee.

Back then, McConnell's justification was the upcoming presidential election, which he said would allow voters a chance to weigh in on what kind of justice they wanted. But now, with the tables turned, McConnell has made clear he will not follow the same course. Instead he will try immediately push through a Trump nominee so as to ensure a conservative justice to fill Ginsburg's liberal shoes, even if President Trump were to lose his re-election bid. Asked what he would do in circumstances like these, McConnell said: "Oh, we'd fill it."

So what happens in the coming weeks will be bare-knuckle politics, writ large, on the stage of a presidential election. It will be a fight Ginsburg had hoped to avoid, telling Justice Stevens shortly before his death that she hoped to serve as long as he did--until age 90.

"My dream is that I will stay on the court as long as he did," she said in an interview in 2019.

She didn't quite make it. But Ruth Bader Ginsburg was nonetheless an historic figure. She changed the way the world is for American women. For more than a decade, until her first judicial appointment in 1980, she led the fight in the courts for gender equality. When she began her legal crusade, women were treated, by law, differently from men. Hundreds of state and federal laws restricted what women could do, barring them from jobs, rights and even from jury service. By the time she donned judicial robes, however, Ginsburg had worked a revolution.

That was never more evident than in 1996 when, as a relatively new Supreme Court justice, Ginsburg wrote the court's 7-to-1 opinion declaring that the Virginia Military Institute could no longer remain an all-male institution. True, said Ginsburg, most women — indeed most men — would not want to meet the rigorous demands of VMI. But the state, she said, could not exclude women who could meet those demands.

"Reliance on overbroad generalizations ... estimates about the way most men or most women are, will not suffice to deny opportunity to women whose talent and capacity place them outside the average description," Ginsburg wrote.

She was an unlikely pioneer, a diminutive and shy woman, whose soft voice and large glasses hid an intellect and attitude that, as one colleague put it, was "tough as nails."

By the time she was in her 80s, she had become something of a rock star to women of all ages. She was the subject of a hit documentary, a biopic, an operetta, merchandise galore featuring her "Notorious RBG" moniker, a Time magazine cover, and regular Saturday Night Live sketches.

On one occasion in 2016, Ginsburg got herself into trouble and later publicly apologized for disparaging remarks she made about then-presidential candidate Donald Trump.

But for the most part Ginsburg enjoyed her fame and maintained a sense of humor about herself.

Asked about the fact that she had apparently fallen asleep during the 2015 State of the Union address, Ginsburg did not take the Fifth, admitting that although she had vowed not to drink at dinner with the other justices before the speech, the wine had just been too good to resist. The result, she said, was that she was perhaps not an entirely "sober judge" and kept nodding off.

Born in Brooklyn, N. Y., Ruth Bader went to public schools, where she excelled as a student — and as a baton twirler. By all accounts, it was her mother who was the driving force in her young life, but Celia Bader died of cancer the day before the future Justice would graduate from high school.

Then 17, Ruth Bader went on to Cornell on full scholarship, where she met Martin (aka "Marty") Ginsburg. "What made Marty so overwhelmingly attractive to me was that he cared that I had a brain," she said.

After her graduation, they were married and went off to Fort Sill, Okla., for his military service. There Mrs. Ginsburg, despite scoring high on the civil service exam, could only get a job as a typist, and when she became pregnant, she lost even that job.

Two years later, the couple returned to the East Coast to attend Harvard Law School. She was one of only nine women in a class of over 500 and found the dean asking her why she was taking up a place that "should go to a man."

At Harvard, she was the academic star, not Marty. The couple was busy juggling schedules, and their toddler when Marty was diagnosed with testicular cancer. Surgeries and aggressive radiation followed.

"So that left Ruth with a 3-year-old child, a fairly sick husband, the law review, classes to attend and feeding me," said Marty Ginsburg in a 1993 interview with NPR.

The experience also taught the future justice that sleep was a luxury. During the year of Marty's illness, he was only able to eat late at night; after that he would dictate his senior class paper to Ruth. At about 2 a.m., he would go back to sleep, Ginsburg recalled in an NPR interview. "Then I'd take out the books and start reading what I needed to be prepared for classes the next day."

Marty Ginsburg survived, graduated, and got a job in New York; his wife, a year behind him in school, transferred to Columbia, where she graduated at the top of her law school class. Despite her academic achievements, the doors to law firms were closed to women, and though recommended for a Supreme Court clerkship, she wasn't even interviewed.

It was bad enough that she was a woman, she recalled later, but she was also a mother, and male judges worried that she would be diverted by her "familial obligations."

A mentor, law professor Gerald Gunther, finally got her a clerkship in New York by promising Judge Edmund Palmieri that if she couldn't do the work, he would provide someone who could. That was "the carrot," Ginsburg would say later. "The stick" was that Gunther, who regularly fed his best students to Palmieri, told the judge that if he didn't take Ginsburg, Gunther would never send him a clerk again. The Ginsburg clerkship apparently was a success; Palmieri kept her not for the usual one year, but two, from 1959-61.

Ginsburg's next path is rarely talked about, mainly because it doesn't fit the narrative. She learned Swedish so she could work with Anders Berzelius, a Swedish civil procedure scholar. Through the Columbia Law School Project on International Procedure, Ginsburg and Berzelius co-authored a book.

In 1963, Ginsburg finally landed a teaching job at Rutgers law school, where she at one point hid her second pregnancy by wearing her mother-in-law's clothes. The ruse worked; her contract was renewed before her new baby was born.

While at Rutgers, she began her work fighting gender discrimination.

Her first big case was a challenge to a law that barred a Colorado man named Charles Moritz from taking a tax deduction for the care of his 89-year-old mother. The IRS said the deduction, by statute, could only be claimed by women, or widowed or divorced men. But Moritz had never married.

The tax court concluded that the internal revenue code was immune to constitutional challenge, a notion that tax lawyer Marty Ginsburg viewed as "preposterous." ... (Read more)

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