Yesterday, the legendary Andrew Malcolm published a piece here which speculates about other Supreme Court seats which may come up for grabs while Donald Trump is in office and what the fallout from such a turn of events might be. This is a grim game at the best of times because pondering an opening on the Supreme Court is frequently only thought of as meaning one thing, and it involves six people carrying a casket. But that’s not the reality in most cases. Many of us tend to think that accepting a seat on that court winds up turning into a life sentence that’s nearly as certain as the one Charles Manson received. However, as Zachary Goldfarb and Lydia DePillis wrote shortly after the death of Antonin Scalia, it’s actually a rarity. Chief Justice William H. Rehnquist died in office in 2005, but the last time it happened before that was in 1954. All the other ex-justices in the intervening half century left the building under their own power.
With that optimistic outlook in mind, it’s still worth considering whether any of the current crop are considering spending their golden years doing anything more relaxing. We would generally expect that sort of decision from the oldest members which means the Notorious RBG (83), Kennedy (80) or Breyer (78). The oldest conservative justice (Thomas) is still in his sixties. This has progressives and their liberal allies in the media in a panic at the moment. Two examples cropped up at the WaPo this week, with the first being a plaintive cry from Ruth Marcus for Anthony Kennedy to stick around until the last dog is hung or risk seeing his legacy go up in smoke.
Justice Kennedy, if you’re reading this, my message is simple: Please don’t retire. It could put your legacy at risk; even more, it would be terrible for the country at a moment that demands healing, not another bitter fight ripping at the seams of national unity.
It’s natural, of course, that stepping down would be on your mind. At 80, you are the court’s longest-serving justice — 29 years this month. Appointed by a Republican president, you might decide that a Republican president should have the chance to name your successor.
That one is actually fairly tame when compared to a stunning offer made by Rachel Manteuffel to Associate Justice Ruth Bader Ginsburg. Rather than appealing to the tiny cancer survivor’s better angels in terms of retirement, Manteuffel cuts straight to the chase and lets Ginsburg know that she’s ready to go under the knife and donate her bodily organs if it will keep RBG on the bench until Trump is gone.
I just wanted you to know that I admire you very much and have some tokens of my esteem that you might enjoy. Such as blood. If you have any need for blood, you can have the eight or so units of A-positive that are right here in my body. There’s also a gently used liver in here, lobes of it just lying around if you need them…
My kidneys function well. I have two. Either one is yours for the taking. Both, if need be. ..
I have scads of nerves that you can have. Just take them. My skin would graft onto you beautifully. Bones, stem cells, a whole eyeball I don’t need, feet of intestines, feet. Just a ridiculous amount of health, way more than should rightly belong to someone with my standing in the world. It is not just. And I know you like justice…
I am somewhat bigger than you are, so my heart might not be a perfect fit. Have it cut to size.
I realize that Manteuffel’s essay is ostensibly written tongue in cheek, but these are not the thoughts of a rational person. That last line in particular about having her heart “cut to size” summons up images of an Aztec high priest plunging an obsidian blade into the chest cavity of a sacrificial captive on an ancient pyramid. This isn’t comedy… it’s a desperate plea from the truly unhinged, convinced that a monster (Trump) has risen up from the depths of Mordor to take over the world and there are no hobbits with magic rings of power to be found anywhere. It is, in short, thinly disguised religious fervor.
I suppose that’s understandable to a certain degree. Younger political activists are facing the very real possibility of witnessing something which has almost never happened in their adult lifetime… the swing of a SCOTUS seat from the far left to the far right. Kagan and Sotomayor replaced Stevens and Souter respectively… both were reliably liberal. (Souter was appointed by Bush 41, but wound up voting almost exclusively with the liberal block.) Roberts replaced Rehnquist, a Nixon appointee who was considered a conservative federalist. Breyer replaced Harry Blackmun who was another Nixon appointee but went on to become one of the most liberal justices in the modern era, eventually authoring Roe v. Wade. And RBG (appointed almost a quarter century ago) replaced Byron White, a JFK appointee. In fact it could be argued that the only real ideological shift of note which younger liberals have witnessed was Alito replacing Sandra Day O’Connor. Even there, O’Connor was viewed as more of a swing vote and was a Regan appointee.
Now, the three members most likely to retire (or, God forbid, expire) are the current swing vote and two of the most reliable liberals on the court. If one of them is replaced by someone on Trump’s current list of possible nominees it will be a seismic shift to the Right which liberals are simply not prepared to witness. And that shift would most likely continue to resonate until the current crop of liberal protesters are ready to collect Social Security. (Assuming the program lives that long without going broke.)
With all that in mind, perhaps Manteuffel’s offer won’t bee seen as such a crazy bargain after all. And I’m taking her at her word that she has a simply lovely liver to offer. Lord only knows that nobody would want mine.