The U.S. Supreme Court’s eldest liberal member, Justice Ruth Bader Ginsburg, believes she and her colleagues will decide the issue of same-sex marriage—once and for all—within the next two years. In an interview Thursday with The Associated Press, Ginsburg said attitudes have shifted in favor of gay marriage, and predicted the court would rule on the matter either next summer or in 2016.
What’s more, she plans to be around when it happens. The 81-year-old justice pooh-poohed any notion that she was ready to resign: “Right now, I don’t see any sign that I’m less able to do the job.”
Ginsburg, appointed to the Supreme Court by President Bill Clinton, has since 1993 supplied a reliable liberal vote from the court’s left wing. Ginsburg joined the majority of justices who overturned state partial-birth abortion bans in the 2000 case Stenberg v. Carhart, and later wrote the dissent when the Supreme Court, led by Chief Justice John Roberts, in 2007 reversed course and upheld the federal Partial-Birth Abortion Ban Act, a law Ginsburg called “irrational.”
In the case this June that pitted craft retail chain Hobby Lobby against the Obamacare contraceptive mandate, Ginsburg dissented from the court’s decision to protect the right of certain for-profit corporations to decline paying for abortifacients that violate the employers’ religious beliefs. The other liberal members of the court—Justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer, also objected in that case.
“I have no doubt that if the court had been composed of nine women the result would have been different in Hobby Lobby,” said Ginsburg, a former women’s rights attorney for the American Civil Liberties Union, in this week’s interview.
The contentious social issue of homosexual marriage has been tumultuous in recent months for state legislatures, clerks’ offices, and federal courts, with judges striking down same-sex marriage bans in multiple states, declaring them in violation of the U.S. Constitution. Appeals courts in Denver and Richmond, Va., have upheld such rulings, and the time seems ripe for the Supreme Court to weigh in. A ruling on the constitutionality of same-sex marriage could either leave the issue to the states to decide, or make such marriages legal across the nation, regardless of state laws.
Ginsburg would likely favor nationwide legalization. In June 2013, she joined the Supreme Court majority that struck down part of the federal Defense of Marriage Act, which had recognized marriage as between a man and woman. At the same time, she joined the majority of justices declining to rule on the merits of California’s gay marriage ban, Proposition 8. (The state ultimately began issuing same-sex marriage licenses anyway.)
On Thursday, Ginsburg suggested the high court was unlikely to kick the gay marriage can down the road again. As other liberals have done, she compared the situation to the civil rights battles of the 1960s, including interracial marriage. “I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation,” Ginsburg said. “If a [same-sex marriage] case is properly before the court, they will take it.”
Some liberals, concerned about Ginsburg’s age, have called on her to resign from the Supreme Court while Obama still has a chance to fill her vacancy with another liberal nominee. Last year, Ginsburg suffered cracked ribs after falling in her bathroom, but stayed on the job, saying in a subsequent interview that she was in excellent health and was lifting weights regularly.
Erwin Chemerinsky, dean of the University of California at Irvine law school, wrote in a Los Angeles Times op-ed in March that Ginsburg should retire this summer, while Democrats still hold a majority in the Senate, which is responsible for confirming the president’s Supreme Court nominees.
“If Ginsburg waits until 2016 to announce her retirement, there is a real chance that Republicans would delay the confirmation process to block an outgoing president from being able to fill a vacancy on the Supreme Court,” Chemerinsky wrote.
Ginsburg countered Thursday: “So who do you think could be nominated now that would get through the Senate that you would rather see on the court than me?”
The previous eldest liberal justice, John Paul Stevens, did not retire until 2010, at age 90. Obama ultimately replaced him with Kagan.