Joe Biden and Ruth Bader Ginsburg had a meaningful disagreement back in 1993, during her confirmation hearing before the Senate Judiciary Committee. Biden chaired it at the time. They were discussing societal change, and specifically how it should come about. Should a court move ahead of a populace’s attitudes and its regressive laws to expand constitutional protections, or should it be more prudent?
Biden seemed perplexed by Ginsburg’s predilection for moderate judgment, which was understandable. Others have done far better than I could in eulogizing the late Supreme Court justice, who died Friday, at 87. But even purveyors of the memes popularizing her know that she remains one of the more consequential civil rights attorneys ever. Ginsburg won court victories in the 1970s that paved the way for exponential expansion of gender rights in the United States. By the time President Bill Clinton had nominated her, Ginsburg was already a historical figure.
Why, then, Biden asked, would the soon-to-be justice advocate judicial restraint?
Alluding to an assertion earlier in the session from Carol Moseley Braun, the first black woman ever elected to the U.S. Senate, Ginsburg responded that “the spirit of liberty must lie in the hearts of the women and men of this country.” It would be really easy, Ginsburg continued, to appoint “platonic guardians who would rule wisely for all of us — but then we wouldn’t have a democracy, would we?”
While Ginsburg’s cautious approach helped win over the Republicans who suspected her to be an agent for liberal change, it also reflected a respect for both elections and the courts — two institutions that have continued to repeatedly neglect certain Americans. After her death, many began to grieve the potential loss of that very democracy under a president willing and able to appoint a sixth conservative to the Supreme Court. We have another systemic failing to thank for that.
The hope was that by giving Supreme Court justices lifetime appointments, they would indeed be platonic. Doing so would theoretically insulate them from political obligations. But that is either folly or sabotage, depending upon your perspective. Considering how nakedly partisan the Court has become, typically making rulings that are predictable before a case is even heard, the danger surfacing in the wake of Ginsburg’s death is palpable.
Our charlatan president is all too happy to team up with his party to complete the generations-long conservative project to pack the courts with ideologues. They have been waiting so long for this chance. Appointing far-right judges has always taken precedence in Mitch McConnell’s Senate, and Donald Trump saw fit to brag about this in his conversations with Bob Woodward. Now, this thoroughly undemocratic legislative body, dominated largely by white men who represent predominantly whiter, sparsely populated states, stands to regress decades of progress against white hegemony and patriarchy with one fell swoop. Never mind McConnell’s invented rule prohibiting appointments to the Supreme Court in a presidential election year. You see, the late Antonin Scalia was a conservative who died during a Democratic presidency. Neither those circumstances, nor apparently the rule itself, apply now. Reports indicate that Republicans may already have the votes for a nominee who hasn’t yet been nominated.
There has been a lot of bellyaching, since before Friday night’s news, over Ginsburg’s decision not to retire during the Obama presidency. Perhaps that may have prevented the current, unforeseen circumstances. Two things, though: First, the late justice, who suffered from a variety of cancers until the one in her pancreas eventually took her life, had every right to serve on the Court until her death — and did so excellently. Second, the lifetime appointments are the problem, not Ginsburg’s decision to serve. The late justice bore on her shoulders the weight of our democracy and the hopes of all who seek to preserve civil rights, and that was not her fault. Neither should it have been her responsibility.
We should not blame Ginsburg for the fact that we mourn not merely her passing, but the possibility that it may trigger a more precipitous demise of civil rights. Ginsburg’s death should tell us that never again should we allow the American project to be contingent upon one person’s mortality.
How do we go about changing that? Start with being as aggressive as the conservatives. First, electing both a Democratic Senate and president are essential. The party needs a net gain of three or four seats, since a Vice President Kamala Harris would preside over the Senate if she and Biden win. Congress can change the number of judges both on the federal bench and on the Supreme Court, and it should do so if Biden is in the White House. (The GOP would never give Trump empty seats to fill, so it isn’t worth discussing.) Four is a good number of additions to the nine-member Court, as it would provide the closest approximation to ideological balance — six who are conservative, seven who are not — should Trump succeed in appointing his new justice. Congress has changed that count several times before. Why not now?
Lifetime appointments to the Supreme Court, or any other seat on the federal bench, should also be eradicated. For one, it’s also something Congress can do, and term limits have been consistently popular among the majority of American voters polled in recent years. So if those elected are shy about losing support, they shouldn’t worry too much.
Ginsburg’s death should serve as yet another reminder that the people who made up these rules, once upon a time, never anticipated this president nor our current politics. There have been few weaknesses in America’s systems and bureaucracies that Trump and his fellow Republicans have been unwilling to exploit, and the Court is a primary example. McConnell saved what was Merrick Garland’s seat for Neil Gorsuch, after all.
Thanks to that — and later, to Brett Kavanaugh’s contentious confirmation — five conservatives on the Court remain in their majority. Only three liberals remain. There will likely be no 4-4 tie, such as the one in the months after Scalia’s death that led to a big victory for unions. Think the opposite.
Let’s say Democrats do manage to prevent President Trump from installing a replacement for Ginsburg before November. Both Sen. Susan Collins and Sen. Lisa Murkowski have come forward to state that they won’t vote to approve a nominee before the election, though they didn’t mention what they’d do should Biden win and Trump enter a lame-duck period. But say they follow through, and a few others decide to join them.
Miracles can happen, but they do not always save us. The Court, as of now, still plans to hear a case in the weeks after the election that threatens to neuter or possibly invalidate the entirety of the Affordable Care Act. A 5-3 decision would deprive as many as 25 million Americans of their health insurance, to say nothing of doing so in the midst of a lethal pandemic that has claimed the lives of 200,000 of our family members and neighbors.
The health care law would likely be just the first casualty. Just about everything Ginsburg herself fought for is now in jeopardy of being wiped away by men (and potentially a woman, as Trump has indicated) whose decisions only make white hegemony and patriarchy more permanent.
The rejection of abortion rights no longer need wait for Chief Justice John Roberts to side with conservatives on a case that he finds substantial on legal grounds. The far-right hardliners beside him on the Court, by themselves, may soon be the majority. Given the dubious logic behind rulings on such matters as Congressional access to Trump’s tax returns, I doubt that they would not hesitate to once again criminalize abortion in America. No threat to reproductive rights is too small, in my view — but legislators of the most extreme, legally questionable bills may now see an opportunity with a new 6-3 conservative Court to challenge Roe v. Wade.
A new Trump justice could also help throw the election his way, should the count be contested before the Roberts Court. Bush v. Gore may be the relevant precedent, but the decision to maim the Voting Rights Act in 2013 with its Shelby County v. Holder decision is what truly signals how this may go. Now a harbinger of the potential civil rights regression to come, that 5-4 ruling held that formulas for pre-clearance of state voting laws were outdated, scoring a victory for those who believe racism is about intent, not effect. It paved a road for a bevy of intentionally discriminatory laws that have been passed since.
Ginsburg, for all her cautious jurisprudence, was known for her stinging dissents. Of the Shelby County decision, she wrote that “throwing out pre-clearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
After her death, many see the hurricane coming and feel as though we are without shelter. Some are now lashing out at Ginsburg, posthumously, blaming her for our current predicament. This aims at the wrong target, blaming someone who is gone for what the faulty system has wrought. The burden should never have been hers to begin with. We should be able to just mourn Ginsburg, to offer condolences to those who knew and loved her, and to imagine, perhaps, her celestial rewards. We can still celebrate her preternatural kindness and grace, and be thankful for her patriotic dedication to making America a more equitable place to live. In recent nights, crowds have assembled at the steps of the Supreme Court to do just that. But in their faces, we see the concern for a country on the precipice, thanks to a dangerous president eager to use American jurisprudence like a time machine, sending all back to when many of us had no future.
Trump denied — then doubted — Ginsburg’s dying wish not to be replaced until after the next inauguration. The illegitimate part of this is not just the hypocrisy with regards to Garland, but the indications that Trump, McConnell, and other Senate Republicans intend to rush this pick, possibly staging a vote before the November election.
But as much as I agree with those seeking to hold this pick for whomever is inaugurated in January, we should recognize that for once, Trump is following the Constitution. As even Mitt Romney recognized on Tuesday morning, the president has this power.
In a statement explaining his decision to join with McConnell and all but ensure that a floor vote on a theoretical Court nominee will happen, the Utah Senator retreated to the rules. Romney wrote that “it is based on the immutable fairness of following the law, which in this case is the Constitution and precedent,” which he intends to follow “in considering the President’s nominee.”
We can lament Romney recently saying “black lives matter” before helping cement a regressive Court for decades. But the rules are the problem, not just the game. Deploying politics to delay Trump and McConnell may be useful for a time. Ultimately, though, systemic change is necessary to ensure that no other justice encounters Ginsburg’s fate — serving our own umbrella, the last bulwark against the storm.