The death of Ruth Bader Ginsburg has been yet another blow in a year of tumult, and endless, lacerating upheavals, not only because of the sheer magnitude of her contributions but because her death exacerbates the vulnerability of the supreme court, which often stands as the last barrier and defence against crucial civil rights.
Her death is followed by intense debates surrounding the next nomination. Ginsburg’s last wish was that a nomination be delayed before the election but unsurprisingly, Trump is pushing for a nomination as early as next week, a move that could usher in a “conservative majority.”
Ginsburg was an undeniable icon to many, a champion for feminism, reproductive rights and sustainability. Prior to her appointment as Supreme Court justice, Ginsburg served as the Director of the Women’s Rights Projects of the American Civil Liberties Union. During the course of this position, she fought several cases on gender discrimination before the Supreme Court. Having faced gender discrimination her entire life, Ginsburg’s fight for advocacy was undoubtedly inspired by her own experience of entering the legal profession, which at the time, was the classic old boy network.
After her appointment, she helped propel the first application of the Equal Protection Clause in order to strike down an Idaho law that was discriminatory against women and purported that men be given preference over women for issues of estate management in the case of Reed v Reed.
In the case of Ledbetter v. Goodyear Tire & Rubber Co., Ginsburg famously dissented, arguing for the importance of equal pay and compensation for women in the workplace. In one of her most radical moves, Ginsburg spoke and wrote passionately about reproductive rights and the importance of women having governance over their own bodies when it came to issues such as pregnancy and abortion.
In a groundbreaking dissent, she vehemently argued against the majority decision which allowed states to uphold the Congress’ Partial-Birth Abortion Ban Act of 2003, a move which effectively allowed the banning of a procedure that was deemed necessary by many doctors and gynecologists at the time. In a scathing dissent, she said, “In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court — and with increasing comprehension of its centrality to women’s lives.”
The fact that Ginsburg was a pioneer and an icon cannot be denied. Her influence over the court and this nation was momentous, however, there have also been criticisms surrounding her work, specifically in terms of her “legacy on race.”
She called the NFL player Colin Kaepernick’s protest against police brutality by refusing to stand for the national anthem “dumb and disrespectful,” comments which she later apologized for. She also supported the Trump Administration’s measure to expedite deportations of “undocumented workers…with little or no review.”
While these claims do hold some validity, critiques of Ginsburg should focus on her entire body of work and career. She vehemently dissented in the case of Shelby County v Holder, a decision which upturned Section 4 of the Voting Rights Act, a decision that adversely affected Black communities and “set the stage for a new era of white hegemony.”
She is also critiqued for joining the majority in a decision that allowed the construction of an oil pipeline through the Appalachian trail, another devastating blow to the environment in an era of increasing natural disasters and volatile conditions. Ginsburg chose not to join the dissent of Justice Sonia Sotomayor and Justice Elena Kagan who argued against the decision on the basis that the “trail cannot be separated from the underlying land” and therefore, the Forest Service did not have the right to grant permission for the construction of the pipeline.
While the decision was a controversial one, in Massachusetts v. EPA, she stood with the majority in determining that the Clean Air Act gave the EPA the ability to regulate emissions from automobiles. She also supported decisions that increased the scope of the Clean Water Act and helped protect a regulation that helped limit air pollution and hold large polluters accountable. In Rapanos v. United States, she also argued for “sweeping federal jurisdiction over virtually any water feature.”
Another critique being aired is that she stayed on the bench while Obama was in office. If she had stepped down, we wouldn’t be in the perilous position that we are today. However, her commitment to staying on the bench was indicative of her zeal for her work. After all, no one could have predicted the madness that is prevailing today.
Criticisms against her need to be contextualized and used for the scaffolding we need to build moving forward. More importantly, these critiques say less about her personage and more about the Supreme Court itself, the way it operates and functions and the systemic complexities surrounding it. Indeed, the very fact that her death is causing such turmoil surrounding the next nomination and the ideological make up of the supreme court should, in themselves, open up a conversation about the problematic politicization of the supreme court as an institution.
In an interview in 2011, Ginsburg said, “What I care most about I think most of my colleagues do, too, is that we want this institution to maintain the position that it has had in this system, where it is not considered a political branch of government.”
While impartiality and an apolitical nature are the official designations of the Supreme Court, asserting that it is not a political entity borders on the absurd. SCOTUS may have been designed to be apolitical and impartial, but that is not how it operates.
The fact is that presidents appoint judges based on their own political agenda. Justices are far from politically neutral, they often have demonstrated partisan interests that they advocate for prior to being appointed, which is frequently the basis for their appointment in the first place.
Indeed, this is the reason that SCOTUS appointments are so controversial and hotly contested — because we understand that the political orientation of justices has an inviolable impact on their decisions. Therefore, the makeup of the Supreme Court determines the nexus of power and establishes which rights are upheld and which interests are promoted.
SCOTUS has been a historically unpredictable court, wildly swinging between upholding certain rights and dismantling others. Part of this is based on the complexity of the law itself—the role of SCOTUS is to apply the law, but the legal system itself is a complex body of legislation and case law. While there are instances where the law is clear on issues and rights, many times, interpretation lies at the crux of decisive powers.
Constitutional interpretation is such a key aspect of the US SCOTUS. It is one of the reasons that politics can and do enter the equation. This is what gives SCOTUS so much power, majority and dissenting opinions on major cases indicate that the law is highly open to interpretation. And, if we accept this premise, we also cannot avoid the fact that while impartiality is a key component of being a justice, personal opinion and partisanship invariably whittle their way into decisions.
It is apparent that while SCOTUS was never meant to be political, it is. In the United States, almost every SCOTUS appointment is fraught with partisan tensions. Of course, the benefit of appointments is that even if a judge may be perceived as “conservative” or “liberal,” the independence of the judiciary and the tenure that the position comes with means that there is really no telling how a justice will act during the course of their appointment or how their political affiliations may shift.
In spite of this, SCOTUS is perceived as being and often acts as “a political creature.” How can we enforce the intentional, conceptual neutrality of SCOTUS? Part of the issue is cultural. In Canada, for example, the culture does not support highly politicized appointments. Canada as a society is also much less polarized than the United States. Furthermore, appointments in the US are influenced by key organizations and think tanks, further leading to the complexity of the process.
Perhaps what is required is a systemic shift, an additional layer of checks and balances. However, what this nation is crying out for, and what is far more difficult to achieve, is a cultural shift. Our affiliations, identities and beliefs are so established that partisanship permeates where it clearly shouldn’t.
Ginsburg’s death is as untimely as it is tragic. The controversy surrounding the next appointment is reflective of a culture so embroiled in party lines that it has marred the sanctity of the judiciary, which as a branch, is supposed to exist outside the realm of politics and in itself operate as a safeguard against politics.
Similarly, mindless criticisms that do not examine Ginsburg’s legacy in their entirety are not constructive, neither are blind idealizations of her personage She was a colossus, multifaceted and trailblazing. Any gaps in her work need to be used as building blocks for what we seek in our next candidate instead of tools of division.
And, while we’re here, we need to use her death and the rhetoric surrounding her replacement to examine why the integrity of SCOTUS is being corrupted by partisanship and American culture, which is so intent on identity politics that it fails to envisage the broader vision of this nation.