With the death of Justice Ruth Bader Ginsburg, the United States has lost a groundbreaking jurist and pioneer for equality and justice. Her legal career was enormously consequential for the legal liberation of women in the USA; her intellect, argumentative skill, and writing were shot through with brilliance and exactitude. Her friendships with those she mentored or counted as colleagues across the political spectrum yield remarkable anecdotes testifying to her tenacity and character, even before she found pop-culture stardom. Ginsburg’s biography is a story of the American dream, while also being one marked by an international perspective. The political and judicial consequences of her vacant seat on the Supreme Court of the United States remain to be seen.
Ruth Bader was a daughter of Russian Jews – an immigrant and a first-generation American – and was born in Brooklyn, New York. Her intellectually ambitious mother wasn’t permitted to go to college, and instead worked in the Garment District of Manhattan to support her family. She died while Ruth was a girl, before Ruth graduated from high school, from Cornell University, attended Harvard Law School, and graduated top of her class from Columbia Law School. While at Cornell, Ruth Bader met Martin Ginsburg, her future husband and life partner. They studied at Harvard Law together before moving to New York City for Martin’s career and her continued education at Columbia. Martin would remain her great champion and supporter for the rest of his life and their marriage, eventually following her to Washington for her career. Despite her achievements, Ruth initially could not get a job because of her gender.
From this foundation, Ruth Bader Ginsburg built her career. She returned to Columbia University to pursue a research project on civil law procedure in a comparative context, moving to Sweden for a time and learning Swedish in order to conduct the necessary research. All the while, Ginsburg was exposed to the burgeoning feminist movement in Sweden and witnessed how a society could permit women to have a family and a career without one precluding the other.
By the 1970s, Ginsburg was teaching law and working for the American Civil Liberties Union. She argued six cases in front of the Supreme Court, winning five of the cases in an impressive record for a litigator. Her first case – and her first victory – was Reed v. Reed (1971) the first gender discrimination case in American legal history. The Supreme Court of the United States ruled unanimously that a statute discriminating against women was unconstitutional. Ginsburg noted that in her co-authored brief filed in the case, she “contrasted two decisions in which the then West German Constitutional Court invalidated similar gender classifications” about arbitrary preference to males, and gender-based discrimination in inheritance law. “I did not expect our Supreme Court to mention the German decisions,” she noted, “but I thought they might have a positive psychological effect. Informed of the West German Court’s reasoning, US justices might consider ‘how far behind can we be?’”
Ginsburg joined the United States Court of Appeals for the District of Columbia Circuit in 1980 and was nominated by President Bill Clinton to the Supreme Court in 1993. She was confirmed and became the second woman to sit as a judge on the highest court in the United States.
Reflecting on her life in December 2019, Ginsburg remarked that “my story is hopeful. It leads one to be optimistic about the future. I have often repeated this question and response: ‘what’s the difference between a bookkeeper in the garment district and a Supreme Court justice? One generation.’ My own life bears witness, comparing the opportunities open to my mother and those open to me.”
While Ginsburg’s passing would be a loss to American jurisprudence and liberal causes whenever it came, the timing of her death 46 days before a Presidential election runs the risk of becoming both a policy as well as a ‘culture war’ flashpoint for voters and the Trump campaign. Justices on the Supreme Court are nominated by Presidents and confirmed by the Senate; justices receive lifetime appointments in an attempt to balance the cyclical nature of elected posts by insulating the court from political partisanship, thereby checking the executive and legislative branches of the government. While the court cultivates an image of being above the political fray, the reality is that the U.S. Supreme Court is not politically neutral. The court is always political but has always been independent of the legislative and executive branches – the question in this moment is whether the court will remain that way.
The political argument surrounding the court in an election year is intensified not only because Donald Trump has already named two justices to the court in his first term, nor because the filling of a third seat in a first term has not happened since Richard Nixon was president, but because of the way the Senate behaved in 2016 following the death of Justice Antonin Scalia in February of that year. President Obama nominated Merrick Garland, a moderate and chief justice of the United States Court of Appeals for the District of Columbia Circuit. Before the nomination could even be seriously considered, Senate Majority Leader Mitch McConnell (Republican of Kentucky) announced that the Senate would not hold confirmation hearings in an election year, and that any appointment made by the sitting president would be void. The details of the 2016 argument feature raw partisanship and dubious claims of precedence: not since 1895 had a Democratic president made a Supreme Court appointment with a Republican controlled Senate. In 2016 not even a perfunctory hearing was held in the event Garland appealed to Senate moderates, thus leading to his confirmation, but also as a motivator for conservative voters to elect the Republican nominee for President – who just happened to be Donald Trump, rather than a presumed establishment figure.
Now, with Republican control of the White House and the Senate – at least until November and operatively until January, regardless of who wins the election – arguments have been made by Republican Senators including McConnell that Ginsburg’s vacancy must be filled as quickly as possible, and because the Republican party holds both the executive and the relevant legislative house, there is ostensibly no reason for delay.
It is likely but as yet ultimately unclear whether McConnell will be successful in ramming through President Trump’s third nominee in his first term of office. The election season will only become more volatile with this development, despite Ruth Bader Ginsburg’s plea in her last public statement: "My most fervent wish is that I will not be replaced until a new president is installed.”
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