Justice Ruth Bader Ginsburg
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| Ruth Bader Ginsburg (1933–2020) |
The evening of Friday, September 18, 2020, began normally. I attended my virtual class on the history of German literature and had just finished dinner when my phone vibrated, indicating a new message from a friend. It was one of my roommates, who had just sent the following message to a group chat: "Wtf". For a moment, there was an air of confusion; my roommate wasn't sure if what he had just read on the Internet was accurate, and none of us were sure what he was talking about. Then, a few seconds later, the fog of doubt cleared away as my roommate sent three small yet devastating words: "RBG passed away".
In her eulogy of a late colleague, Justice Ruth Bader Ginsburg recounted how Justice Antonin Scalia was once asked how he and Ginsburg could be friends, given their nearly diametrical opposite opinions on the law. Scalia had answered: "I attack ideas. I don’t attack people." Her remarkable friendships with even those whom she vehemently dissented against should serve as a reminder to all Americans on civility in divided government. An ardent defender of equal justice under law, truly no single human life was more critical to the current state of American constitutional law.
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It is difficult to understate the magnitude of the ramifications that will follow from the death of Justice Ginsburg at this time of year in this moment in the history of the Supreme Court of the United States. The Court has heretofore been in a tenuous state of ideological balance. On one side of the scale sat Ginsburg, along with Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan—together, they formed the liberal bloc of the Supreme Court. On the other side of the scale sat Chief Justice John Roberts, and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—these five formed the Court's conservative bloc.
Although this balance did grant the Court a conservative majority, the five conservative justices do not always share the same opinions, and some have even shown willingness to work with the Court's liberal bloc. In particular, Chief Justice Roberts is generally considered to be the current Court's ideological center. He broke from the conservative wing to join the liberal wing in cases such as National Federation of Independent Business v. Sibelius (2012), which in a 5–4 decision upheld the "individual mandate" of the Affordable Care Act (also known as "Obamacare"), which requires Americans to purchase health insurance or otherwise pay a penalty. Justice Neil Gorsuch is relatively new on the Court—he joined in 2017 as President Donald Trump's first appointee, succeeding the late Justice Antonin Scalia—but nevertheless he has also demonstrated a willingness to break from his fellow conservatives at times. One recent example is the case Bostock v. Clayton County (2020), which held that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of "race, color, religion, sex, or national origin", also prohibits employment discrimination on the basis of sexual orientation and gender identity (the Chief Justice also joined Justice Gorsuch's opinion in Bostock). Another recent example is McGirt v. Oklahoma (2020), which held in a 5–4 decision that because Congress never formally disestablished the Creek Indian reservation that was promised to that tribe by a treaty with the federal government in 1832, that land today remains Indian country.
The landmark result in each of these cases was made possible because at least one conservative justice decided to join the liberal side of the Court. However, with the death of Ruth Bader Ginsburg, the Court's liberal wing is down to just Breyer, Sotomayor, and Kagan, and we've already started to see Senate Majority Leader Mitch McConnell (R-KY) and Donald Trump move quickly to appoint a new conservative justice to succeed Ginsburg. Even though the presidential election is in November, Trump will remain president until at least January, meaning there is plenty of time for the Senate to confirm a new justice nominated by Trump. With a new conservative voice on the Court, that would mean that in order for the liberal bloc to form a majority, two of the conservative justices would need to both join the liberal justices. Because U.S. Supreme Court justices serve for life, vacancies are rare. This all but guarantees that for much of the rest of our working lives, American jurisprudence will now be shaped primarily by the opinions of the Court's conservative wing. It is unequivocally the end of an era.
I would be remiss, of course, if I did not at least mention the circumstances surrounding the previous vacancy created by the unexpected death of a sitting justice. To fill the vacancy created by Scalia's death in February 2016, President Barack Obama nominated Merrick Garland, who was at the time the Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit. Although Article II, Section 2 of the U.S. Constitution gives the President the authority to nominate new candidates to the Supreme Court, the nominee may only be appointed "by and with the Advice and Consent of the Senate". At the time, the Republican Party led by Majority Leader Mitch McConnell controlled the U.S. Senate. In an act that is without precedent in the history of the United States, McConnell refused to even consider Obama's nominee, not even for a vote. McConnell justified his view by stating that because 2016 was an election year, it was only fair that the people should decide who Scalia's successor should be via the election.
Well, here we are again. The year is 2020, we are within weeks of a presidential election, and there is now another vacancy on the Supreme Court. Given McConnell's prior reasoning, it would seem only fair that the people should again decide who Ginsburg's successor should be. Just hours after her death was announced to the world, NPR reported that Justice Ginsburg had expressed a dying wish to her granddaughter: "My most fervent wish is that I will not be replaced until a new president is installed." Indeed, it would disrespect her legacy on the Court not to honor this request. It is, however, almost certainly not going to happen. In the current Congress, Mitch McConnell is still the Majority Leader of the Senate, and as I mentioned earlier in this post, he has already indicated his intent to move quickly to appoint whomever Trump nominates to fill Ginsburg's vacancy. Although this indisputably exposes his hypocrisy from 2016, this is also indisputably a golden opportunity for Republicans to finally obtain a reliably conservative Supreme Court. The deal is simply too good to pass up.
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Ruth Bader Ginsburg was a remarkable jurist whose life inspired and encouraged generations to stand up to injustice and defend the Constitution by honoring its promise of liberty to all Americans and their posterity. In one of her most famous opinions, Justice Ginsburg invalidated the century-old male-only admission policy at the Virginia Military Institute (VMI) in a case called United States v. Virginia (1996). Towards the end of her life, she wrote impassioned dissenting opinions that future jurists will surely return to for guidance. "Dissents speak to a future age," Ginsburg once said in an interview with NPR. "It's not simply to say my colleagues are wrong, and I would do it this way. The greatest dissents do become court opinions. And gradually over time, their views become the dominant view. So that's the dissenter's hope that they aren't writing that for today but for tomorrow."
It is no exaggeration to say that the Court will never be the same. Justice Ginsburg, I hope that you may rest in peace. I hope beyond hope.