Ken Jost writes on his blog that Justice Ginsburg’s legacy will be defined by her decision to step down.

Fresh from celebrating her 80th birthday, Ruth Bader Ginsburg will take her place on the Supreme Court bench this week as the twelfth justice in history to serve past that milestone. Completing her 19th term, Ginsburg walks slower these days, but her age has not visibly affected her work as a justice, either in her questions on the bench or in her written opinions.

Still, Ginsburg must by now be contemplating her legacy . . .

To safeguard her legacy, Ginsburg must now make the right decision about when to retire from the court. …

Ginsburg told Toobin that she would stay on the court “as long as I can do the job full steam.” By her own words, however, her stamina is not the only relevant consideration. Ginsburg’s legacy will depend in part on whether she makes the right decision about the best time to step aside.

We saw similar calls for RBG to step down before the 2012 election, such as this piece from Stephen Carter.

It seems that the en vogue way of influencing the decision of the Supreme Court is to preemptively write about their legacies. Last year, in the run-up to NFIB v. Sebelius, countless pundits charged that Chief Justice Roberts would not want his legacy to be tarnished by a partisan 5-4 opinion striking down the ACA. Recently, Jack Balkin has said that the Justices (perhaps one in particular whose first name is Tony) should decide the SSM cases not in terms of the law today, but based on how history will see them (my critique of these “future arguments” is here).

I remain slightly disappointed by the transparency of these “legacy” arguments. The very same people who today write that a legacy will be harmed will be the same people who tomorrow write that the legacy was harmed. This is one hand washing the other.  Pundits are merely telegraphing what they will write about a Justice in the future if they don’t play ball.

The Justices are very, very smart people. They know what they are doing. No one needs to tell them how to define their legacy. More importantly, no one knows what their legacy will be. To quote Doc Brown from Back to the Future, “It means your future hasn’t been written yet. No one’s has. Your future is whatever you make it. So make it a good one, both of you.” (The highlight of my district court clerkship may have been citing that line in an argument about prospective standing).

Indeed, I could use Justice Stevens as an example. He retired when “he was supposed to.” He waited out George W. Bush’s term, gave his pal David Souter a chance to get out of dodge first, then stepped down the following term. And what’s happened since? He won’t stop talking about how he was right in all of his dissents, and how many of his colleagues still on the Court are absolutely wrong. I have labelled this the John Paul Stevens Rehabilitation Tour, and I think that description is apt–he is rehabilitating his own legacy. Bill Clinton is still trying to define his legacy by saying signing DOMA was a mistake. I’m sure his wife will soon do the same. President Obama routinely called passing the ACA his “legacy.” Yet, I imagine historians could see his presidency very differently.

No one can write their own legacy. Neither Jeff Rosen nor Stephen Carter nor anyone else can define what a person’s legacy will be. Far too often, people try to act with how history will see them, of how they’ll be viewed. These seems such an unfulfilling way to live one’s life. Live for the moment, and do the right thing. Let history be the judge of everything else.

My advice to Justice Ginsburg (whom I am a HUGE fan of): do what your heart tells you is right. Your judgment and wisdom have gotten you to this amazing station in life. Only you can continue to define your own legacy. And for those who will criticize you for continue doing the job you love. “In the end, your legacy “survives largely unscathed,” and those criticisms are mere “blips.”