By Cameron Spencer |
US Supreme Court Justice Ruth Bader Ginsburg passed away at her home in Washington D.C. yesterday at the age of 87. Appointed to the court by President Clinton in 1993, she has become a larger than life figure, known endearingly as ‘The Notorious R.B.G.’ and has left a legacy as a champion of women’s rights and a principled Justice. She was widely respected, with tributes coming from leaders across America. Hillary Clinton tweeted that ‘Ginsburg paved the way for so many women, including me. There will never be another like her’. An unfortunate side effect of the job is that her now vacant court seat will become the basis of a controversial and deeply ugly political fight.
Ginsburg’s early life was defined by tragedy. She lost a sister at a young age and later her mother as she was preparing to enter law school. She studied at Columbia and Rutgers law schools in the 1950s as one of the few women in the field, finishing at the top of her class. Her formidable reputation was already being moulded. Despite her qualifications, she struggled to find a job due to her gender, Jewish faith and the expectation that she remain at home while her husband progressed with his legal career. She emphasised this as a motivation for the cases she later took on, which included work for the ACLU and the famous Reed vs Reed case which extended The Equal Protection Clause of the 14th Amendment to women, in essence outlawing sex-based discrimination.
She was the second woman to sit on the Supreme Court and was a leader on the ‘liberal wing’ of the court. She opposed the death penalty, supported legalisation of same-sex marriage, and strongly advocated to maintain Roe vs Wade, a historically contentious ruling which protects the right to abortion. In 1999, she was diagnosed with colon cancer but continued to work on the court, working out with a personal trainer and remaining in good health despite regular cancer scares up until her death. She was documented in the 2018 film ‘RBG’ and was depicted in the biopic ‘On the Basis of Sex’.
The morbid reality of a politicised Supreme Court has led to a culture in which Ginsburg’s survival had been seen crucial for the Left in preventing President Trump from being able to replace the fervent liberal with a conservative. If the President were to do so, it would be the first time a conservative candidate will have replaced a liberal out of of his 3 appointments. In 2017 Neil Gorsuch replaced the out-and-out conservative Antonin Scalia, and in 2018 Brett Kavanaugh replaced Anthony Kennedy, who counted as a swing vote (a judge who sided with both liberal and conservative decisions).
One of the most important powers of the presidency is the ability to appoint justices to the court, a process that has been fraught and divisive in recent years. The court of nine was tentatively balanced with five Republican and four Democratic appointees, the potential addition of a further conservative could threaten Roe vs Wade and even play a major role in the election if the decision is passed to the court, as it was in 2000.
The precedent of Supreme Court appointments was changed forever in February 2016. After the unexpected death of Justice Scalia, Republican Senate Majority Leader Mitch McConnell refused to allow President Obama to fill the vacancy by preventing votes for his nominee, Merrick Garland. McConnell claimed that the seat should remain vacant until the November 2016 election, allowing Donald Trump or Hillary Clinton to fill the seat, as Obama was constitutionally unable to return to the presidency and his party did not have control of the Senate. This broke with tradition and destroyed good faith between the parties.
Days before Ginsburg’s death she dictated to her granddaughter, ‘my most fervent wish is that I will not be replaced until a new president is installed.’ Despite McConnell’s claim that a Justice cannot be nominated in an election year, within two hours of the announcement of her death, he announced that he would push forward with placing a conservative on the court.
Democrats have warned that this action will undermine the court, while others have gone so far to suggest that it could be radically reformed if Joe Biden were to win the presidency in November, seemingly in backlash against McConnell for twice breaking the rules that he had written himself. Moderate Republican Senators have begun to voice concerns about confirming a new Justice given the political consequences they may face, perhaps, suggesting that McConnell’s strategy could backfire.
This is yet another contentious issue that President Trump and former Vice President Biden will battle over in the coming weeks as election day rapidly approaches. In 2016, Trump worked to maximise his appeal to socially conservative Republican voters by promising to fill Scalia’s vacant seat with a judge who would vote to repeal Roe vs Wade and to legally enshrine religious liberties. He will likely attempt this again and it could be a vote winner amongst some wavering voters.
Meanwhile, Biden will make the case that his political agenda will be unlikely to pass if the court has a substantial conservative majority. Furthermore, as a 36-year veteran of the Senate, he will be very critical of the actions of Republican leadership.
Even before her appointment to the Supreme Court, Ruth Bader Ginsburg had already built a legacy in the arena of American civil rights. Her position on the court only increased her reputation and allowed her to widen her impact by scrutinising the law that she had previously sought to change. Undoubtedly, Justice Ginsburg leaves a legacy larger than her five-foot frame.