Writing in the New Republic, Harvard Professor Randall Kennedy suggests that Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer should consider retirement in the interest of the long-term survival of the more progressive wing of the court.  Kennedy calls retirement “the responsible thing to do.”  Looking ahead to the 2012 election and the prospect, however slim, of the beginning of a new eight-year Republican administration, Professor Kennedy fears that the two moderate progressives wouldn’t be able to wait eight years to retire, and “they will have contributed to a disaster.”

Kennedy, who clerked for Justice Thurgood Marshall, recalls the retirement of Justice Marshall as just such a disaster for the court and progressive jurisprudence.  Justice Marshall, after intending to serve out his entire life tenure on the court, was forced by failing health to retire during the administration of the first President Bush, allowing the Bush administration to appoint Justice Clarence Thomas.   To say that Justice Marshall would disagree with Justice Thomas’s view of the Constitution is a grand understatement.  Justice Thomas has espoused the opinion that “the minimum wage, child labor laws, and the federal ban on whites-only lunch counters all violate the Constitution.

For Justice Ginsburg in particular, who has been a strong voice for women on the Court, the prospect of being replaced by a conservative jurist should be particularly frightening.  Surely Justice Ginsburg doesn’t want to spend the last few years of her life (she is 78) watching the court roll back protections for the rights of women that she has spent a career fighting tirelessly to ensure.  Though the possibility of Obama losing in 2012 may be a remote one, the possibility is there, and the future of progressive jurisprudence, already a philosophy most commonly found in dissent, may hang on that possibility.