(Photo: The Economist)
By Daniel Wright-Mason – Editor-In-Chief
Many across the United States and the wider world were saddened and disheartened at the recent loss of Supreme Court Justice Ruth Bader Ginsburg (RBG), who died at the age of 87 on the 18th September. Ginsburg, who had served on the Supreme Court since 1993, left a towering legacy as a champion of legal equality, particularly in the field of sex-based discrimination within the law. Throughout her almost three-decade long service to the highest U.S court, she became especially renowned for her frequent dissensions against decisions made by her colleagues, and her objections to these were often long and passionate, earning her the nickname of the ‘The Great Dissenter’. One particular oral dissenting speech after the 2007 Ledbetter v. Goodyear pay discrimination case was heavily praised by many in Congress, and led to the passing of the ‘Lilly Ledbetter Fair Pay Act’ of 2009, which strengthened the laws on gender discrimination of pay in the U.S. In a 2015 speech at the University of Michigan, she was famously quoted as saying, “I like to think most of my dissents will be the law someday.”
Ginsburg was also a strong voice on the winning side of many Supreme Court cases during her tenure, perhaps most notably on the landmark 1996 case, United States v. Virginia. This verdict, which ruled that Virginia Military Institute’s ‘male-only’ admission policy was unconstitutional, set a strong judicial precedent against classification based on sex, something that is celebrated as a sizeable victory for gender equality.
However, despite the late Justice having a career illustrious enough to fill numerous obituaries, it is the situation regarding Ginsburg’s replacement, and thus legacy, that is now of great concern to many. Following the death of Antonin Scalia in 2016 and the retirement of Anthony Kennedy in 2018, President Donald Trump has been able to cement the ‘conservative majority’ of 5-4 on the Supreme Court, with the appointments of Neil Gorsuch and Brett Kavanagh. With the death of RBG, he has the chance to increase this majority to 6-3, which would make the court the most conservative in decades. To non-Americans, the importance put on the Supreme Court may seem strange, but its place in the U.S legal system theoretically gives it ultimate decision-making power on constitutional questions, meaning it can essentially set legal and political precedent for decades to come. The main areas that would likely be under threat if this 6-3 majority was to be created and upheld, would most probably be surrounding the legality of the Affordable Care Act, or ‘Obamacare’, and much more controversially, the legality of abortion. Whilst it is unlikely that a stacked conservative court would attempt to fully overturn Roe vs Wade (the 1973 case that first legalised abortion in the U.S), it is possible that they may allow specific states to ban it on an individual level. This, to many, is not only an incredibly regressive and dangerous possibility, but a slap in the face to the legacy of RGB, who spent her entire life fighting for the right for women to have autonomy over their own bodies.
It would appear that Trump’s replacement for RGB is someone who would have fundamentally disagreed with her in life. His preferred choice, announced September 26th, is Indiana Judge Amy Coney Barrett, a controversial Conservative with ties to a fringe religious group known as ‘People of Praise’. The group, which descends from Catholicism, reportedly maintains a strictly fundamentalist interpretation of religious texts, whilst members are encouraged to live communally, and female members are encouraged to obey and give portions of their salary to their husbands, or other male “heads” of the group. In a 2006 speech at Notre Dame University, when she was asked about her inspirations as a Professor, she said “If you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love and serve God, you truly will be a different kind of lawyer.” As a Judge, Barrett is described as a textualist and an originalist, a style favoured by conservatives, and is based on interpreting the Constitution as plain text, from the perspective of those who wrote it, regardless of any societal change since then. Whilst there are some who celebrate this as judicial ‘purity’, others fear that it closes the door on any judicial activism that could help bring about needed change within U.S law. As well as concerns over abortion rights and the legality of Obamacare, Barrett has also received criticism for verdicts made in favour of Trump’s controversial 2017 immigration bill, as well as numerous rulings that undermined gun safety laws, and environmental regulations.
Unfortunately for opponents of Judge Barrett’s record, or worthiness, for a Supreme Court position, the current composition of the U.S Senate means that there should be enough votes to confirm the Republican nominee, if the process can be pushed through in a truly unprecedentedly short period of 38 days. This is due to recent changes made by both Democrats and Republicans in 2013 and 2017, which lowered the required threshold for voting from 60 to 51, and eliminated the filibuster on Supreme Court nominations. With Senate Majority Leader Mitch McConnell holding a seat majority of 53-47, it would require 4 Republican Senators to break the party line in order for the selection to be delayed, or halted – a number that will most likely not be met. Whilst Maine’s Susan Collins and Alaska’s Lisa Murkowski have publicly stated that they will not be voting for Judge Barrett, other Senators such as Utah’s Mitt Romney, despite refusing to endorse Trump in November’s election, have stated they will be voting in favour.
Despite this, it is difficult for many to look past the apparent levels of hypocrisy amongst the Republican party in the Senate. This is due to the many parallels that can be drawn with a similar occurrence in 2016, in which the death of Judge Antonin Scalia (a well-documented life-long friend of RGB) prompted a similar scenario. Then President Barack Obama proposed Judge Merrick Garland for the role, and presented the selection to the Republican controlled Senate. However, despite the process beginning in February, which would have given it more than six times longer a period to be discussed and confirmed than the selection of Amy Coney Barrett, the Senate refused to grant Garland a single hearing, let alone start the selection process. In 2016, Mitch McConnell claimed that he couldn’t confirm a new Justice in an election year, as “The American people should have a voice in the selection of their next Supreme Court Justice.” In 2020, he has begun the process for his own candidate, a little more than a month before an election. In even more striking hypocrisy, the Senate Judiciary Chairman Lindsey Graham, who recently released his planned timeline for Barrett’s nomination, publicly stated in 2016:
“I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, let’s let the next president, whoever it might be, make that nomination, and you could use my words against me and you’d be absolutely right.”
It is no secret that Mitch McConnell views the ‘culture war’ in the Judiciary as his ultimate political goal. In an interview with Bob Woodward in 2019, President Trump claimed that judges were McConnell’s “biggest thing in the whole world”, which has led to over 150 new judges being added to the Federal courts since 2016. With large aspects of legal authority, this could result in decisions being made with heavy conservative leanings for decades to come.
Although this may seem like a disheartening takeaway for supporters of RBG and her political beliefs, it would be best to remember that constitutional law is far more complicated than is often framed, and there are always different avenues that can be followed. As former Obama advisor David Litt suggests, McConnell may end up losing his political crusade of ‘constitutional hard ball’ in the long run. As Litt advocates, the Republican party have benefited from a heavily skewed political structure for decades, allowing them to achieve vastly disproportionate power to their popularity, given that the majority of American citizens disagree with their message on most major issues. For example, due to the ‘rural bias’ in the Senate, it is predicted that its makeup is over seven points ‘more Republican’ than the country as a whole. But, if they win the Presidency in November, the Democratic Party will have many options to change the balance if they so wish, from voting rights and comprehensive immigration reform, to increasing the number of Supreme Court Justices and giving Puerto Rico and Washington D.C. their own Senators. But, for the average American who wishes to uphold and live by the values in which Ruth Bader Ginsburg fought her entire life for, the best solution would be to vote on November 3rd, and make a definitive statement on how the country is currently being run. Change, especially in a country as cumbersome are the United States, is always a slow process, but as Ginsburg herself famously said, “Real change, enduring change, happens one step at a time.”