By Jessie Seigel
With the passing of Justice Ruth Bader Ginsburg, an event feared by her liberal allies for years, we are living in the center of a maelstrom that may portend the death of democracy. The Republicans are using immense power to purge voter rolls. President Donald Trump is deliberately slowing down the mail to hamper absentee voting necessary because of COVID-19, and claiming that absentee ballots will be fraudulent. Worse yet, Trump is claiming that any election result that does not keep him in office is illegitimate—this, even before the election has taken place. And he is refusing to commit to a peaceful transfer of power if he loses.
Trump’s handpicked henchman, Attorney General William Barr, has called protests against the police murders of black citizens “domestic terrorism.” Meanwhile, Trump encourages armed right-wingers to intimidate state legislators and governors, makes excuses for violent actions by hate groups, and defends those who have killed protesters.
Trump attacks cities and states not run by Republicans, while Barr, following in step, is designating some Democratic cities as “anarchist jurisdictions,” because they have refused to let federal law enforcement enter to “counter criminal activites.”
In addition, Barr has the Justice Department investigating the investigators of the president’s many alleged crimes.
These are the moves a would-be dictator makes when attempting a coup.
Now that Ruth Bader Ginsburg has died, Trump and Senate Majority Leader Mitch McConnell are rushing to replace her within spitting distance of the 2020 election. With Ginsburg not even yet in her grave, Trump has selected ultra-conservative Judge Amy Coney Barrett as his nominee. McConnell is that same character who hypocritically refused to give Merrick Garland, President Obama’s nominee, even a hearing. McConnell’s contrived excuse? That it was the beginning of an election year, and the next president should make the choice.
Under these circumstances, it is not at all fanciful to speculate that Trump and his minions are rushing to put someone on the Court who will make sure any legal contest Trump manufactures concerning the election will be decided in his favor.
With the presidency, the Senate, and the head of the Justice Department thus corrupted, it is a very inconvenient time to have lost this champion for honesty and justice. I think Ginsberg must have felt this herself; thus, her “most fervent wish” that she would not be replaced until a new president is installed.
Ultimately, we have no control over how long we live or when we die. But Justice Ginsburg stayed with us, working away, with her quiet brilliance, for as long as she could. In doing so despite serious illness, Ruth Bader Ginsburg was valiant to her last breath.
Justice Ginsburg has been eulogized all week as the champion of women’s rights, and rightly so. But she was the champion of so much more.
Of her sense of purpose in the world, Ginsburg said, “To make life a little better for people less fortunate than you, that’s what I think a meaningful life is. One lives not just for oneself but for one’s community.” That sense of purpose permeated her work on the Supreme Court. She was nothing if not forthright: whether in the majority or in dissent, Ginsburg addressed the law in relation to humanity and human needs, as well as, when necessary, adroitly pointing out the illogic of her colleagues’ positions.
Ginsburg’s views stood in the majority in some cases, such as United States v. Virginia (where she wrote the majority opinion holding a military institute’s male only policy to be in violation of the Constitution’s equal protection clause); Olmstead v. L.C. (protecting disability rights of the mentally ill and mentally challenged); Friends of the Earth v. Laidlaw Environmental Services (affirming the standing of residents to sue industrial polluters); and Safford Unified School District v. Redding (applying the Fourth Amendment’s protection against unreasonable search and seizure to school children).
But Ginsburg’s dissents when she was in the minority were equally, if not more, important.
In Bush v Gore, the Court’s majority refused to permit the Florida Supreme Court to require a manual ballot recount in the 2000 presidential election. Amongst the paper-thin reasons given, the majority opined that a constitutionally adequate recount would be impractical. By its action, the Court—rather than the people—chose George W. Bush to be President of the United States. Ginsburg’s dissent emphatically stated the “conclusion that a constitutionally adequate recount is impractical is a prophecy the Court’s own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States.”
In Shelby County v. Holder, the majority struck down a Voting Rights Act requirement that certain states obtain U.S. Department of Justice approval for all changes to their voting laws and practices. This was based on the states’ records of voter discrimination. To justify striking down the requirement, the majority opinion held that it was no longer needed. Ginsburg dissented, writing acerbically that throwing out these requirements, which were working, was “like throwing away your umbrella in a rainstorm because you are not getting wet.” The extreme voter suppression we have been experiencing since the Shelby County decision has proved Ginsburg correct.
In Ledbetter v. Goodyear Tire and Rubber Company, the majority of the Court held that Lilly Ledbetter could not sue her employer for its discriminatory pay practices (paying her less than her male colleagues) because her claim was raised after she retired and outside the 180-day deadline for filing. In her dissent, Ginsburg noted that comparative pay information is often hidden from employees, and pointed out the Catch-22 of requiring someone to file a claim before they’ve discovered that the discriminatory practice occurred. Ginsburg’s dissent called upon Congress to change the law, which it did in The Lilly Ledbetter Fair Pay Act of 2009. Although this particular case addressed pay discrimination against a woman, the Lilly Ledbetter Fair Pay Act strengthened such protections for all workers. In this instance, Ginsburg lost the battle but won the war.
Justice Ginsburg perceptively said, “Dissents speak of a future age…the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that’s the dissenter’s hope: that they are writing not for today, but for tomorrow.”
In thinking of Justice Ginsburg’s view of dissents, I am reminded of Clarence Darrow—my personal inspiration for becoming a lawyer. The two were very different in style and temperament, and I am certain that Ginsburg’s analytic ability was much greater. But Darrow, who lost many of his most notable cases, used all of his cases to educate the public. He did this concerning unionism (defense of labor leader Eugene Debs); science and freedom of ideas (defense of teaching Darwinism in the Scopes trial); the wrongness of capital punishment (the Leopold and Loeb sentencing trial), and racism (the Dr. Sweet trial), among others.
Ginsburg and Darrow both had the long battle in mind—the battle for humanity and progress that is not won in a day, but can take decades, a lifetime, or even many lifetimes. With Ginsburg gone, we must pick up her mantle and carry that fight, each in our own way.
Jessie Seigel is a fiction writer, an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. She has twice received an Artist’s Fellowship from the DC Commission on the Arts and Humanities for her work. But, Seigel also had a long career as a government attorney, in which she honed her analytic skills. Of this double career, Seigel would say, “I guess my right and left brains are well balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.