Ruth Bader Ginsburg: Why the death of the ‘Notorious RBG’ leaves so much at stake for US - Dani Garavelli

When the news filtered through late on Friday night that feminist icon and Supreme Court justice Ruth Bader Ginsburg had succumbed to pancreatic cancer it felt as if one of the last remaining stars lighting the US skies had been snuffed out.

Sunday, 20th September 2020, 8:59 am
Supreme Court Justice Ruth Bader Ginsburg died on Friday
Supreme Court Justice Ruth Bader Ginsburg died on Friday

This was a woman who spent her life fighting for sexual equality, who played a key role in landmark rulings from the striking out of Virginia Military Institute’s male-only admission policy to the over-turning of same sex marriage bans, whose dissenting opinion on Shelby County v Holder - a ruling that upended voting rights - inspired a law student to bestow upon her the enviable title, the Notorious RBG.

It says something about her personality that the nickname - a play on the rapper, the Notorious BIG - spread. She revelled in her kickass reputation.

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For a short period after her death, scrolling through the tributes on social media was a fillip. After weeks in which our timelines have been dominated by idiot celebrities - Ian Brown, Noel Gallagher, Van Morrison - peddling their mask-refusing manifestos of death it was cheering to be reminded of convictions worth defending.

In a country attempting to recast itself as a real-life Gilead, Ginsburg was a one-woman rebellion, the embodiment of those progressive values sneered at by Trump and his army of alt-right followers.

Having grown up in a working class neighbourhood in Brooklyn, she exemplified the American dream, but she was also a totem for efforts to increase diversity, and an antidote to suggestions that such efforts result in tokenism. Bill Clinton picked her out from an array of male contemporaries, not so much because she was a woman but because she was a Jewish woman. But, boy, did she justify his faith in her, going on to make an indelible mark on US history.

To re-read her most famous quotes - “Women belong in all places where decisions are being made” or “Women will only have true equality when men share with them the responsibility of bringing up the next generation” - was to be transported to a time when solidarity was cherished and few believed liberty lay in flouting rules brought in to protect the welfare of others.

But the rush of endorphins caused by the celebration of Ginsburg’s life soon yielded to a sense of loss, and the realisation that the timing of her death - six weeks before the US election - put all she achieved at risk.

No-one was more aware of this than Ginsburg herself. Not long ago, she dictated this note to her grand-daughter: “My most fervent wish is that I will not be replaced until a new president is installed,” she said.

She knew dying now would hand Trump the opportunity to tilt the Supreme Court further to the right, and row back on rights that at one time would have been perceived as unassailable.

Those who attended the impromptu candle-lit vigil outside the Supreme Court came to honour her contribution, but also to highlight what’s at stake: reproductive rights, voting rights, the rights of immigrants, and healthcare for America’s poorest - and that’s just for starters.

Even with Ginsburg there, the Supreme Court was finely balanced; four liberals, four hardline conservatives along with Chief Justice John Roberts who is also conservative, but closer to the centre and not guaranteed to vote with the others.

Trump has already made two appointments, Neil Gorusch and Brett Kavanaugh. Those were controversial choices - particularly Kavanaugh who seemed to personify the male entitlement at the heart of the presidency - but they replaced previous Republican nominations. They pushed the court to the right, but they didn’t reduce the overall number of liberals.

Replacing Ginsburg with a conservative would alter its ideological make-up, with all that could mean for issues such as abortion. In recent years, fears about the overturning of Roe v Wade, the landmark 1973 ruling that legalised terminations in the US, have formed a constant thrumming soundtrack to a presidency uninterested in sexual equality.

Senator Josh Hawley has proffered the ruling as a Supreme Court litmus test, saying he would only vote for nominees who explicitly acknowledge that Roe v Wade was wrongly decided and “an act of judicial imperialism”.

In his first election campaign, Trump said he believed the landmark ruling would “naturally” be overturned as a result of the justices he appointed to the court. Replacing Ginsburg with a conservative would increase that likelihood and be one of the biggest legacies.

He is expected to announce his nomination for Ginsburg’s successor imminently. The frontrunners include Amy Coney Barrett, who has seven children and belongs to a group of Catholic charismatics called People of Praise, and senator Tom Cotton who tweeted he would get rid of Roe v Wade if confirmed. On Friday night, during a campaign speech in Bemidji, Minnesota, unaware of Ginsburg’s death, Trump declared Senator Ted Cruz would be the appointment he would make if given the opportunity.

Cruz is that contradiction in terms: a politician who describes himself as Pro-Life while backing the death penalty and opposing the tightening up of gun laws.

Whoever he picks, there is no guarantee Trump will get his way. Any appointment he makes will have to be confirmed by a straight majority in the senate. The Republican hold on the senate is slim - 53:45, with two independents - and the confirmation would be contentious due to a precedent set at the tail-end of Barack Obama’s second term.

Back then, senate majority leader Mitch McConnell blocked the appointment of Merrick Garland - Obama’s choice to replace Antonin Scalia who died in February 2016, a full seven months before the election. Scalia was a conservative, Garland a moderate liberal; so Obama’s pick, like Trump’s, had the potential to alter the balance of the court for years to come.

For McConnell to allow a confirmation hearing for Trump’s nominee is clear hypocrisy. It would be guaranteed to enrage the Democrats, potentially robbed of two Supreme Court appointments in five years.

But McConnell doesn’t seem to care. He has already pledged that whoever Trump picks will be given a vote on the senate floor. With the White House confirming there would be no time before November, the fight looks set to take place in the months between the election and the inauguration in January.

American commentators say the row over Ginsburg’s successor could influence the election, although they are divided over which candidate will benefit: Trump because securing the Supreme Court for the right would play well with his supporters; or Biden because setting a precedent and then breaking it is so manifestly unfair.

Few would dispute that much of what Ginsburg stood for is now in jeopardy. Yet she continues to influence activists like Kalina Newman, who took flowers to the candle-lit vigil.

Asked what the judge had meant to her, Newman, eastern regional communications co-ordinator of the AFL-CIO, the largest federation of unions in the US, answered: “As a young woman with a passion for progressive politics, she taught me to never take no for an answer.”

It’s a source of hope. It shows a lifetime’s campaigning cannot be easily nullified; that the values Ginsburg embraced will live on through those she inspired.

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