Supreme Court Associate Justice Ruth Bader Ginsburg has died, at 87 years old, of complications from pancreatic cancer. Chief Justice of the United States John Roberts said: “Our Nation has lost a jurist of historic stature. We at the Supreme Court have lost a cherished colleague.” The societal and political implications of Ginsburg’s death less than two months before election day, and amid the global health pandemic will be of immense magnitude. Ginsburg’s death puts incendiary issues like abortion, gun control, and affirmative action onto the front burner of the election now. She was the most reliable liberal vote on the court since her appointment in 1993 after being nominated by Bill Clinton.
Justice Ginsburg enjoys a near rock-star status on the left and stands as a feminist icon. While she is the author of hundreds of judicial opinions, she made her most significant impact on the law at the Supreme Court before she ever wore a robe there as a Justice. Ginsburg helped start and then helmed the Women’s Rights Project at the ACLU, where she argued six sex discrimination lawsuits before the Supreme Court. She won five of those cases – a remarkable achievement, and one that changed forever how men and women were regarded under the law.
Ruth Bader Ginsburg gave her husband Martin credit for an idea she thought helped her win. She chose male plaintiffs, hoping they would be more sympathetic. Her success in the litigation came both from plaintiff selection and an excellent presentation of the arguments themselves, in written and oral advocacy. In Craig v. Boren, for example, she successfully argued that an Oklahoma law allowing women to purchase beer at 18, but forbidding men from doing so until 21, was impermissible gender-based discrimination, in violation of the Equal Protection Clause.
Speaking last year, Justice Ginsburg said:
“If I am notorious, it is because I had the good fortune to be alive and a lawyer in the late 1960s [and into the 1970s, when it] became possible to urge before courts, successfully, that equal justice under law required all arms of government to regard women as persons equal in stature to men.”
She went on to say that, although we “have not reached Nirvana” in terms of equality, “the progress I have seen in my lifetime makes me optimistic for the future.”
Point Guard On The Court
As a Supreme Court Justice, she was a reliable vote for the left-wing – writing blistering dissents or powerful majority opinions. A few short years after she joined the high court, she would author the 7-1 opinion on government facilities or programs that discriminate on the basis of sex. Justice Ginsburg’s majority opinion struck down the sex-based exclusion of women from the Virginia Military Institute, a public school. She wrote:
“Neither federal nor state government acts compatibly with equal protection when a law or official policy denies to women, simply because they are women, full citizenship stature – equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.”
Ginsburg’s career on the court is marked by little deviation from fidelity to left-wing jurisprudence and political ideology. She was so committed to advancing it on the court that she refused to step down during the Obama administration for fear that any replacement he could get through the Senate would be insufficiently leftist. The Justice told an interviewer: “Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court.”
NPR reports: “Just days before her death, as her strength waned, Ginsburg dictated this statement to her granddaughter Clara Spera: “My most fervent wish is that I will not be replaced until a new president is installed.” In hindsight, the Justice might have wished she allowed President Obama to advance her replacement rather than Donald J. Trump.
Anyone nominated by President Trump is likely to rule the opposite of how Justice Ginsburg would have on most wedge issues dividing left and right. As the Supreme Court often decided rules on major society-changing issues with 5-4 rulings, the consequences of replacing her with a Trump appointee cannot be understated. The right to gay marriage, gun ownership, and independent campaign speech were all recent issues decided by 5-4 rulings, for instance.
The Ballad of Merrick Garland – The Sequel
Senate Majority Leader Mitch McConnell wasted no time declaring his support for a Trump nominee to fill the late Justice’s seat this fall. McConnell successfully delayed President Obama’s nomination of Merrick Garland to replace Justice Antonin Scalia in 2016, citing the presidential election. Garland was nominated in March of that year. Republicans successfully blocked a vote on the nomination citing what they called the “Biden Rule,” recalling a quote from Joe Biden, who was, at the time, the Chairman of the Senate Judiciary Committee: “It would be our pragmatic conclusion,” Biden said, “that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.”
The first female Justice on the Supreme Court was Sandra Day O’Connor. She was nominated to replace the retiring Potter Stewart on August 19, 1981, and was confirmed by the Senate just 33 days later.
Ruth Bader Ginsburg was famously friends with Antonin Scalia, a Supreme Court Justice she seldom agreed with on law or politics. She was by all accounts, a devoted wife and mother. She met her husband as an undergrad at Cornell. As Ginsburg herself put it: “He was the first boy I ever knew who cared that I had a brain.”
Read more from Scott D. Cosenza.