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Opinion Justice Ginsburg died believing that Trump is an “aberration.” Her death ensures that he won’t be.

03:26  19 september  2020
03:26  19 september  2020 Source:   vox.com

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Last October, while Justice Ruth Bader Ginsburg was speaking at Amherst College, she was asked how she thought people in the future would characterize this period in American history. Ginsburg’s answer: “as an aberration.”

Ruth Bader Ginsburg standing in front of a door: Supreme Court Justice Ruth Bader Ginsburg celebrating her 20th anniversary on the bench on August 30, 2013. © Nikki Kahn/The Washington Post via Getty Images Supreme Court Justice Ruth Bader Ginsburg celebrating her 20th anniversary on the bench on August 30, 2013.

And yet her death means that the age of Trump will almost certainly be our new normal. With Ginsburg on the Supreme Court, the power to shape our Constitution was split between four liberals, four archconservatives, and Chief Justice John Roberts — a conservative whose respect for institutions and for procedural regularity sometimes tempered his fellow conservatives’ tendencies.

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Justice Ginsburg’s death means a sixth Republican appointee and Trump’s third. On issues ranging from abortion to elections to health care, the Supreme Court will now be entirely dominated by conservatives.

In another era, Ginsburg spearheaded one of the most successful litigation campaigns in American history. Before the Court’s 1971 decision in Reed v. Reed, a case where Ginsburg co-authored the merits brief, the Supreme Court never held that the Constitution limits gender discrimination. That decision, and some of her cases that followed, sparked a feminist revolution.

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By the time she donned her black robe for the first time in 1980, appointed to the federal bench by Jimmy Carter, the Supreme Court agreed with her that all laws that discriminate on the basis of sex must be viewed with great skepticism.

a person posing for the camera: Ruth Bader Ginsburg in 1977, three years before being appointed as a federal judge by Jimmy Carter. © Getty Images Ruth Bader Ginsburg in 1977, three years before being appointed as a federal judge by Jimmy Carter.

Later in life, Ginsburg the Supreme Court justice became the avatar of a new cause: voting rights — although she enjoyed less success defending this cause to her younger colleagues on the Court. When asked during her Amherst visit to name which Supreme Court cases did the most harm during her tenure as a justice, Ginsburg listed three: the Court’s decision dismantling much of the Voting Rights Act in Shelby County v. Holder (2013); the decision in Rucho v. Common Cause (2019), holding that federal courts may do nothing to stop partisan gerrymandering; and the decision in Citizens United v. FEC (2010), which permitted corporations to spend unlimited money to influence elections.

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The common thread uniting these cases is that they are all about elections. Ginsburg spent her final years struggling in vain to preserve democracy against a Supreme Court majority that was often ambivalent towards it.

Indeed, the irony of Justice Ginsburg’s life is that her influence over American law seemed to recede even as she gained positions of greater prominence and official power. Ginsburg’s most transformative accomplishments came while she was still just a lawyer, convincing a panel of nine male justices to see the Constitution as a feminist document.

Over the course of her life, Ginsburg witnessed the full range of American possibility, from the New Deal and the Great Society to the death of Jim Crow and the rise of feminism. Her life traced the most hopeful era in American history; her death seems poised to usher in a new era of liberal pessimism about our future.

A dual identity

Near the end of her life, Justice Ginsburg took on a dual identity. By day, she was Ruth Bader Ginsburg, an almost excruciatingly rigorous lawyer. By night she was the Notorious RBG, a vessel for the frustrations of younger liberals fearful that the hopeful era Ginsburg helped build was dying.

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Ruth Bader Ginsburg was a former civil procedure professor, who would often seek out cases involving complex procedural issues because those were her favorite cases to write. Conversing with her was a slow, plodding experience, because she seemed to pause after each word to consider which, of all the words she could possibly say next, would most accurately convey her intended meaning.

Ruth Bader Ginsburg was the woman Chief Justice Roberts once praised for her “work ethic, intellectual rigor, precision with words and total disregard for the normal day-night work schedule adhered to by everyone else since the beginning of recorded history.”

Yet, while her colleagues knew her as the mild-mannered Ruth Bader Ginsburg, many Americans, especially progressive feminists, knew her as a superhero.

Ruth Bader Ginsburg sitting at a table with a laptop: Supreme Court Justice Ruth Bader Ginsburg sits in her chambers at the Supreme Court on August 7, 2002. © David Hume Kennerly/Getty Images Supreme Court Justice Ruth Bader Ginsburg sits in her chambers at the Supreme Court on August 7, 2002.

The Notorious RBG was a crusader, known for her sharp dissents defending liberal democracy. She threw zingers — she said of the Court deactivating much of the Voting Rights Act: “when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” And she became a vessel for the anger and disappointment of a generation of liberal feminists who saw the equal society they’d been promised slipping away from them.

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It was always an awkward fit. The real Ruth Bader Ginsburg carried herself with Yoda-like calm. “Anger, resentment, envy. These are emotions that just sap your energy,” Ginsburg says in Irin Carmon and Shana Knizhnik’s Notorious RBG: The Life and Times of Ruth Bader Ginsburg. She attributes her success as an advocate to the fact that she fights “in a way that will lead others to join you.” As Carmon wrote in the New York Times, Ginsburg will only show her anger after she’s “tried everything else.”

Likewise, Ginsburg was never a radical, and she often cautioned against lawyers (and judges) who tried to do too much, too fast. One year before joining the Supreme Court, Ginsburg criticized the all-at-once approach the Court took to legalizing abortion in Roe v. Wade. Had the Court moved more gradually, Ginsburg told an audience at New York University School of Law, state legislatures may have moved forward with laws expanding abortion rights — building popular support for those rights in the process. Instead, Roe offered a focal point for “a well-organized and vocal right-to-life movement” that “rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.”

Indeed, Ginsburg was so committed to incrementalism that her preference for gradual change was sometimes confused with conservatism. When Ginsburg was nominated to the Supreme Court by President Bill Clinton in 1993, NARAL’s Kate Michelman warned that the future justice’s “criticisms of Roe raise concerns about whether she believes that the right to choose is a fundamental right or a lesser right.”

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Ginsburg may owe her opportunity to sit on the Supreme Court to Orrin Hatch, the staunchly conservative former Republican senator, who urged President Clinton to choose Ginsburg over other “likely candidates from a liberal Democrat administration.”

The most accomplished lawyer of her generation

Ginsburg was the most accomplished lawyer of her generation, and arguably the most accomplished lawyer of her lifetime next to Justice Thurgood Marshall, the civil rights lawyer who argued Brown v. Board of Education.

Like Marshall, however, Ginsburg never won the kind of transformative victories as a member of the Court that she achieved while arguing before it. The Court had a conservative majority during Ginsburg’s entire tenure as a justice, and it only moved further to the right with time.

Which is not to say that Ginsburg lacked accomplishments as a justice.

Ginsburg’s opinion in United States v. Virginia (1996), which held that the Virginia Military Institute (VMI) must admit women, was the culmination of her efforts to banish gender stereotyping from the law. In response to the state’s claim that “males tend to need an atmosphere of adversativeness,” like the military education offered at VMI, while “females tend to thrive in a cooperative atmosphere,” Ginsburg responded that the Constitution does not care what most men or most women prefer.

The state “may not exclude qualified individuals based on ‘fixed notions concerning the roles and abilities of males and females,’” Ginsburg wrote for her Court.

Justice Ginsburg also brought this insight — that we must be judged as individuals and not according to stereotypes — into other areas of the law.

Sandra Day O'Connor, Clarence Thomas, Harry Blackmun, Anthony Kennedy, William Rehnquist, David H. Souter, John Paul Stevens, Ruth Bader Ginsburg, Antonin Scalia standing in front of a curtain: The Supreme Court in 1993, the year Ginsburg was appointed by President Clinton. © Jeffrey Markowitz/Sygma via Getty Images The Supreme Court in 1993, the year Ginsburg was appointed by President Clinton.
Stephen Breyer, Neil Gorsuch, Clarence Thomas, Sonia Sotomayor, John Roberts, Elena Kagan, Ruth Bader Ginsburg, Brett Kavanaugh, Samuel Alito standing in front of a curtain: The Supreme Court in 2018. © Mandel Ngan/AFP/Getty Images The Supreme Court in 2018.

Take, for example, her opinion in Olmstead v. LC (1999), which held that the Americans with Disabilities Act often requires people with mental disabilities to be placed in community settings and not institutions. “Institutional placement of persons who can handle and benefit from community settings,” she wrote, “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.”

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Ginsburg’s greatest influence was often felt in the decisions she did not write — but that were nonetheless steeped in her feminist approach to the law. She loved to tell the story of Nevada Department of Resources v. Hibbs (2003), where the Supreme Court held that states must comply with the Family and Medical Leave Act’s unpaid leave requirements.

Chief Justice William Rehnquist, a staunch conservative who used to brag that “my wife became resigned long ago to the idea that she married a male chauvinist pig,” wrote the opinion in Hibbs. Yet his opinion sung with feminism. “Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men,” Rehnquist wrote in his opinion explaining why a universal right to family leave helps tear down these stereotypes.

Ginsburg’s punchline, when she told the story of this case, is what happened after she showed the Hibbs opinion to her husband, Marty — he asked her, “Did you write this?

And yet, as the Court lurched even further right due to the weight of Bush and Trump appointees, Ginsburg’s influence on her conservative colleagues began to wane. And she became more and more known for her sharp dissents.

On occasion, these dissents inspired legislative action, as was the case after the Court held, in Ledbetter v. Goodyear Tire & Rubber (2007), that certain women victims of pay discrimination have just a narrow window to challenge their employer’s decision to pay them less than their male colleagues — or else those claims are lost.

Ginsburg closed her Ledbetter dissent with a call to action. “This is not the first time the Court has ordered a cramped interpretation of” a landmark employment discrimination law, Ginsburg wrote before citing a pair of decisions that were later overruled by a 1991 federal law. “As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.”

And so it did. The very first bill that President Obama signed into law was the Lilly Ledbetter Fair Pay Act, which overturned Ledbetter.

For every dissent ending in triumph, however, there were far more that ended only in frustration. Consider her dissent in Vance v. Ball State University (2013), a case that stripped many victims of sexual and racial harassment of their ability to hold their employer liable for this harassment. Ginsburg ends her Vance dissent with a conclusion similar to the one she wrote in Ledbetter — “The ball is once again in Congress’ court to correct the error into which this Court has fallen.” Congress has not taken Ginsburg up on this charge.

Ginsburg won her greatest victories by helping men understand that sexism hurts them too

Much of Ginsburg’s genius arose from her ability to see cases through the eyes of someone who was skeptical of her position, but who was also capable of persuasion.

On the day the Supreme Court decided Reed v. Reed (1971), the first Supreme Court decision holding that the Constitution restricts discrimination on the basis of sex (and for which Ginsburg co-authored the merits brief), only nine women had been appointed to the federal bench in all of American history. None of these women sat on the Supreme Court, which meant that she had to convince a panel of nine men to start tearing down the patriarchy.

She did so in part by showing them that sexism hurts men too, often in very obvious and direct ways. Ginsburg often said that her favorite client was Stephen Wisenfeld, a stay-at-home father who successfully challenged a law that denied widowers benefits that Wisenfeld would have received if he were a woman that lost her husband.

Similarly, Ginsburg wrote a seminal amicus brief in Craig v. Boren (1976), a Supreme Court decision holding that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” The plaintiff in Craig was a man who challenged an Oklahoma law permitting women to buy low-alcohol beer at age 18, but not men.

Ginsburg’s goal was to convince the Court to hold — as it eventually did in Virginia — that the government “must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females” when it makes law. She achieved this goal, in no small part, by confronting male judges with cases where an overbroad generalization about the capacities of men or women cut against men.

As an advocate, she understood that she often must meet the court where it already was, rather than trying to yank it into an unfamiliar future. Ginsburg’s insight was that male judges, rooted in a society that was so sexist that many of them had never had a female colleague, could be convinced to dismantle that sexism.

And she won.

Justice Ginsburg stood against her colleagues as they dismantled voting rights

Ginsburg’s best known voting rights opinion is her dissent in Shelby County, the decision dismantling much of the Voting Rights Act.

The fully functional Voting Rights Act required many states and local governments with a history of racial voter discrimination to “preclear” any new voting laws with federal officials in Washington, D.C. This preclearance regime was one of the most important provisions of the law because it addressed the fact that white supremacist lawmakers are often more nimble than courts.

Without preclearance, these lawmakers could enact a voter suppression law, run an election or two under that law before the courts eventually struck it down, and then enact a new one shortly thereafter. This cycle could repeat forever, locking voters of color out of power.

a person standing in front of a door: Ginsburg arrives at a lecture on Supreme Court decisions from the 2017-2018 term at Georgetown University Law Center on September 26, 2018. © Alex Wong/Getty Images Ginsburg arrives at a lecture on Supreme Court decisions from the 2017-2018 term at Georgetown University Law Center on September 26, 2018.

The premise of Chief Justice Roberts’s majority opinion in Shelby County is that America simply isn’t racist enough to justify a fully operational Voting Rights Act. In a distant past, Roberts wrote, “voting discrimination against African-Americans was so entrenched and pervasive in 1965 that to cite just one example, less than 7% of African-Americans of voting age in Mississippi had been able to register to vote.” But now, “our country has changed,” and this progress means that the “extraordinary measures” contained in the Voting Rights Act are no longer needed.

In dissent, Ginsburg offered a very different explanation for why racial voter suppression declined after the Voting Rights Act became law — it declined because of the Voting Rights Act. “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes,” Ginsburg clapped back at Roberts, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”

An even clearer window into who Ruth Bader Ginsburg was, both as a person and as a justice, is Ginsburg’s more obscure dissent in Veasey v. Perry (2014).

Veasey involved Texas’s voter ID law, the strictest in the country. A federal trial court found that Republican lawmakers passed this law to “gain partisan advantage by suppressing” the “votes of African-Americans and Latinos.” And yet a conservative appeals court blocked that decision, relying on a 2006 Supreme Court decision saying that courts should be cautious about altering election procedures close to an election because such late-breaking decisions can foster “voter confusion.”

After a majority of her colleagues voted to let this appeals court decision stand, the octogenarian Ginsburg pulled an all-nighter writing a dissent that the Court released shortly after 5 am on a Saturday. In it, she firmly rejected the notion that voters should should be disenfranchised because of vague fears that some of them might be confused. Or that Texas should be rewarded for its own failure to prepare for a decision striking down its law.

“Texas knew full well that the court would issue its ruling only weeks away from the election,” and it “had time to prepare for the prospect of an order barring the enforcement of” the voter ID law. Thus, Ginsburg wrote, “any voter confusion or lack of public confidence in Texas’ electoral processes is in this case largely attributable to the State itself.”

This one dissent, perhaps more than any other opinion, is a microcosm for Ruth Bader Ginsburg’s entire career. Here we see her indignation in the face of inequality. We see Ginsburg the civil procedure professor picking apart the ways that a seemingly sensible procedural rule can lead to great injustice. We see Ginsburg’s “total disregard for the normal day-night work schedule” as she labored almost until dawn to produce her opinion.

And we also see Ginsburg’s optimism. Justice Ginsburg worked that sleepless night because she believed that her dissent could matter. She believed that, by sheer force of her reason, she could convince her nation to be more respectful of voting rights next time.

An optimism that didn’t see catastrophe on the horizon

Ginsburg’s final years were gravid with warnings that perhaps this optimism was unwarranted. She not only witnessed the election of Donald Trump, she also read the dissenting opinions in Department of Commerce v. New York (2019).

If you want to know what the future without Ruth Bader Ginsburg will look like, read those opinions. New York involved the Trump administration’s effort to add a question to the 2020 Census’s main form asking if respondents were citizens — a question that hasn’t been asked since the Jim Crow era. The Census Bureau’s own experts determined that such a question was likely to reduce response rates in noncitizen households by more than 5 percent.

Sonia Sotomayor, Stephen Breyer, Ruth Bader Ginsburg standing in front of a crowd: Supreme Court Justice Ruth Bader Ginsburg arrives for President Barack Obama’s State of the Union address in the Capitol on January 20, 2015. © Bill Clark/CQ Roll Call Supreme Court Justice Ruth Bader Ginsburg arrives for President Barack Obama’s State of the Union address in the Capitol on January 20, 2015.

As a leading Republican expert on gerrymandering revealed in files uncovered after his death, this question “would clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites.” It would have shifted House representation and federal resources away from immigrant communities and toward white communities dominated by Republicans. And yet, the Trump administration made the unbelievable claim that the question was added to the form to help enforce the Voting Right Act’s protections against race discrimination.

Chief Justice Roberts, to his credit, called the Trump administration out on this lie — although he used the more polite word “pretext” to describe the administration’s effort to couch voter suppression as voter protection. But Roberts was the only Republican on the Court willing to do so. (The Court’s decision in New York effectively prevented Trump from adding the citizenship question to the 2020 Census, but it also left the door open for a future Republican president to revive this question in a future census.)

In the coming years, as we watch the conservatives of the Court — Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and whoever Trump appoints — remake American law, progressives might find themselves agonizing over Justice Ginsburg’s decision to hang on to her Supreme Court seat instead of retiring when President Obama could have appointed her replacement. Why didn’t she see the urgency in beating back the right-wing revolution? After Trump took power, why did she believe his regime would be an aberration?

Perhaps part of the answer is that Justice Ginsburg’s life spanned the most hopeful period in our nation’s history. She was one of America’s greatest public intellectuals, someone who did more than any other lawyer to write feminism into our constitutional law.

She spent her career surrounded by many of her nation’s brightest minds, but when asked who the smartest person she ever knew was, she named Celia Amster Bader — her mother. “What’s the difference between a bookkeeper in New York’s garment district... and a Supreme Court justice?” Ginsburg asked in her Amherst talk. “The difference is one generation.”

Ginsburg saw President Franklin Roosevelt lift America out of the Great Depression. She saw Nazism crushed and she saw Jim Crow beaten into submission. She saw her mother, alive with talent but unable to use it in a sexist age, and she swore to free women from that existence. And then she did it.

Justice Ginsburg died an optimist because she’d seen the impossible happen. She made much of it happen herself.

May the memory of that age of optimism be a blessing.

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