Justice Ruth Bader Ginsburg died on Friday at the age of 87. Ginsburg spent her life promoting a vision of the Constitution that guarantees equal justice to women, racial minorities, and LGBTQ people, while defending government programs that protect the less fortunate from poverty, exploitation, and discrimination. She was a hero to millions. Ginsburg served on the federal bench for 40 years, working tirelessly through seven presidencies and five bouts of cancer to help create a more just nation. Her death triggers one of the most consequential swings in the court’s balance of power less than two months before the election.
Ginsburg was born in Brooklyn in 1933. She attended Harvard Law School, where she was one of just nine women, then transferred to Columbia Law School when her husband, Marty Ginsburg, got a job in New York City. In 1972, Ginsburg co-founded the ACLU’s Women’s Rights Project, which brought multiple cases to the Supreme Court. Arguing before the justices, Ginsburg persuaded an all-male court to invalidate laws discriminating on the basis of sex under the equal protection clause. In 1980, President Jimmy Carter appointed her to the U.S. Court of Appeals for the District of Columbia Circuit. Thirteen years later, President Bill Clinton elevated her to the Supreme Court. During her Senate confirmation hearing, Ginsburg did not conceal her support for women’s rights, including abortion access. She was confirmed 96–3.
During her 27-year tenure on the Supreme Court, Ginsburg authored several watershed opinions expanding, as she put it, our understanding of who counts as “We the People” striving toward a more perfect union. Perhaps most notably, she wrote the majority opinion in United States v. Virginia invalidating the Virginia Military Institute’s policy against female enrollment, heightening judicial scrutiny against laws that discriminate because of sex. Ginsburg also joined the majority in countless liberal victories, including Whole Woman’s Health v. Hellerstedt, striking down targeted regulation of abortion providers, and Obergefell v. Hodges, extending same-sex marriage to every state. She penned dissents in Shelby County v. Holder, which gutted the Voting Rights Act, and Burwell v. Hobby Lobby, which allowed corporations to deny female employees contraceptive coverage. For these dissents, Ginsburg was celebrated as the Notorious R.B.G., an image that never quite fit the quiet, intellectual justice but amused her nonetheless. After the pop culture legend fades, she will likely be remembered as a giant of the judiciary who entrenched her progressive constitutional theories in the supreme law of the land.
Ginsburg died of metastatic pancreatic cancer at her home in the Watergate surrounded by loved ones. “Our Nation has lost a jurist of historic stature,” Chief Justice John Roberts said in a statement. “We at the Supreme Court have lost a cherished colleague. Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her—a tireless and resolute champion of justice.”
What happens to her seat may now be the most important question in the presidential election. After Justice Antonin Scalia’s death in 2016, Senate Republicans refused to consider President Barack Obama’s nominee, Merrick Garland, insisting the seat remain vacant until “the American people decide” who should appoint Scalia’s replacement. By doing so, Republicans established a new rule: no Supreme Court confirmations during a presidential election year.
In the days before her death, the justice dictated a statement to her granddaughter, Clara Spera: “My most fervent wish is that I will not be replaced until a new president is installed.”
Democrats should now have no compunction about holding Republicans to their rule, especially when the stakes are so high, even though they have no power to prevent a confirmation vote. If Trump replaces Ginsburg, he will pull the Supreme Court farther right than it has been since the 1930s. The court will pose a clear and present danger to reproductive rights, LGBTQ equality, labor and environmental regulations, lifesaving social programs like the Affordable Care Act, and so much more. If Donald Trump fills Ginsburg’s seat, he will remake the court for generations to come.
Trump is all but certain to nominate Amy Coney Barrett, an extremely conservative judge he put on the U.S. Court of Appeals for the 7th Circuit, as her replacement. Senate Majority Leader Mitch McConnell—who held Scalia’s seat open for more than a year—has already said he would fill a vacant seat this year. Barrett’s confirmation would create a 6–3 conservative supermajority. Ideologically, Justice Brett Kavanaugh would sit at the center of the court. Chief Justice John Roberts might occasionally join the remaining liberals, as he did last term, but his defections would not change the outcome of any case.
This new court would drag the judiciary far outside the mainstream legal establishment. Next term, the new majority could accept red states’ invitation to eradicate the entire Affordable Care Act, stripping health insurance from more than 20 million people. In the near future, Barrett could cast the fifth vote to eviscerate Roe v. Wade and allow states to ban abortion, or at least regulate abortion clinics out of existence. She could expand states’ power to disenfranchise voters and hobble the remnants of the Voting Rights Act. The court’s current conservatives are already eager to strike down federal regulations on pollution, employment, banking, and more, while abolishing the independence of agencies tasked with enforcing those regulations. Barrett’s presence would give them a solid fifth vote for these goals in case Roberts defects. She would also shore up a five-justice majority to strike down broad swaths of gun control legislation.
It is difficult to see how the Supreme Court’s institutional prestige could survive this conservative assault on the laws and precedents that form the bedrock of American governance today. McConnell already altered the size of the court to stop Obama from filling one seat. Now he is poised to fill another in the waning days of Trump’s first term, a total (and predictable) reversal of his putative principle that the American people should decide who gets to fill a vacancy in a presidential election year. But it is not clear if Democrats have any real power to shield the court from the wolf at the door.
No matter what happens over the next few months or years, Ginsburg should not be remembered primarily for setting off the political equivalent of an atomic bomb less than two months before an election. She deserves to be exalted as the visionary that she was. It’s nearly impossible for young people today to understand the extent to which sex discrimination was ubiquitous and ingrained in American life and law before Ginsburg launched her Women’s Rights Project. She saw the possibility of a different world and made her vision a reality through ceaseless toil. Ginsburg’s clerks often tell stories about the justice’s renowned work ethic, her habit of staying up all night to finish an opinion with superhuman speed. During her many cancer treatments, she rarely complained or slackened her pace, voting and participating in oral arguments from her hospital bed. As a court reporter, I often felt like Ginsburg was racing toward a better future that she could help create while the rest of us tried, breathlessly, to catch up.
Above all else, Ginsburg was an optimist. She had an unceasing faith in humankind’s ability to better itself, to shed irrational bigotries, to come together in the pursuit of the greater good. Less than a year ago, the justice said she believed our current period of history will be remembered as an “aberration.” It is now up to us to prove her right.
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