by Emerson Morley, Maddie Dewhirst, & Sofia Rossi
On Fri., Sep. 18, liberal Supreme Court Justice Ruth Bader Ginsburg died at age 87 after experiencing a recurrence with metastatic pancreatic cancer in July. Ginsburg, appointed in 1993 by President Bill Clinton, was the second woman in history to sit on the United States Supreme Court. Her tenacity inside and out of the courtroom earned her the nickname “the Notorious RBG.” In her 27 years as a justice, many viewed her as a beacon of hope for gender justice, reproductive rights, and LGBTQ+ equality. Ginsburg, the first female Jewish justice, passed away on the first day of Rosh Hashanah, making her a tzaddik, a righteous and saintly person, according to Jewish tradition.
Throughout her career, Ginsburg was lauded as a “progressive feminist icon.” In 1956, she was one of the only nine women accepted into Harvard Law School’s, where she was also a first-time mother, before transferring to Columbia where she graduated top of her class in 1959. In 1969, she also became the first female law professor to receive tenure at Columbia Law School. During her time at the ACLU, Ginsburg founded the Women’s Rights Project, which took on cases in an effort to advance the rights of women around the country. Unique in her approach, Ginsburg often took on men as plaintiffs in order to fight gender inequality. Referring to patronizing male judges, Ginsburg joked: “I did see myself as kind of a kindergarten teacher in those days, because the judges didn’t think sex-discrimination existed.”
During her career at the ACLU, Ginsburg argued six cases before the Supreme Court, winning five of them. Among those cases, Ginsburg secured a woman’s right in the US to sign a mortgage without a male spouse, to maintain a bank account without male supervision, and for pregnant women to work.
Ginsburg’s fight for gender equality defined the greater part of her career in the Supreme Court as well. In the 1996 landmark case United States v. Virginia, she voted in favor of allowing women to attend the previously all-male Virginia Military Institute. Ginsburg also fought to close the gender pay gap in Ledbetter v. Goodyear Tire and Rubber Company, voting in favor of Lilly Ledbetter, who filed a lawsuit against Goodyear in 2007 for paying its female employees less than their male counterparts. Ginsburg read her dissent from the bench, and a law was later passed by Congress to prevent pay discrimination.
Ginsburg’s feminist legacy also included promoting greater access to abortions and contraceptives. In Whole Woman’s Health v. Hellerstedt, Ginsburg, alongside four other justices, declared a Texas bill – which imposed strict regulations on abortion providers across the state – to be unconstitutional. She also wrote a concurring opinion expressing that any further attempts to restrict access to abortion would not hold up in the Supreme Court.
Her progressive record continued with a landmark 2015 case, Obergefell v. Hodges, which guaranteed same-sex couples the right to marriage in all 50 states. Ginsburg argued: “Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this court’s decision in 1982 when Louisiana’s Head and Master Rule was struck down.” She was also the first justice on the Supreme Court to officiate a same-sex wedding.
Ginsburg’s passing before the 2020 election could turn the former 5-4 conservative majority into a 6-3 majority in favor of the conservative-leaning justices, threatening many of the progessive reforms Ginsburg fought for throughout her life. Whether or not President Trump is reelected this upcoming November, Republicans will hold the Senate majority until at least Jan. 3, and Trump will remain in office until the presidential inauguration on Jan. 20; this brief window gives conservatives the opportunity to potentially appoint a new justice.
To designate a new Supreme Court justice during an election year would violate the McConnell rule, which went into effect in February of 2016 after the death of Justice Antonin Scalia during the Obama administration. After Scalia’s passing, Senate Majority Leader Mitch McConnell refused to hold any hearings related to a Supreme Court nomination until the next president was inaugurated in January 2017. He argued that a “lame-duck president” should not be allowed to appoint a new Supreme Court justice after the primaries began.
Following the news of Ginsburg’s passing, McConnell issued a statement on Friday: “Americans reelected [a conservative] majority [in the Senate] in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”
Obama responded to McConnell’s commitment to holding a Supreme Court nomination hearing before the inauguration: “Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in. A basic principle of the law – and of everyday fairness – is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment.”
Quoting McConnell’s 2016 statements verbatim, Senate Minority Leader Chuck Schumer tweeted: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”
On Sep. 9, Trump released his latest short list of individuals whom he would nominate if reelected; he named 20 potential Supreme Court nominees, including Republican Senators Ted Cruz of Texas, 49; Josh Hawley of Missouri, 40; and Tom Cotton of Arkansas, 43. Both Cruz and Hawley have said they would not accept a nomination, while Cotton said he “will always heed the call of service to our nation.”
McConnell will likely face a challenge attempting to appoint a new justice before Trump’s first term expires. In addition to Democrats who have already committed to fighting a new nominee, some Republicans have voiced opposition to the idea. Republican Senator Lisa Murkowski, just before Ginsburg passed, commented: “I would not vote to confirm a Supreme Court nominee. We are 50 some days away from an election.” The day after Ginsburg’s death, Senator Susan Collins stated, “I do not believe that the Senate should vote on the nominee prior to the election.”
In 2018, South Carolina Senator Lindsey Graham voiced a similar sentiment, remarking, “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait [until] the next election.”
Graham has since walked back on his 2018 statement in a tweet posted on Saturday, writing, “Harry Reid [a former democratic Senate Majority Leader] changed the rules to allow a simple majority vote for Circuit Court nominees dealing out the minority. Chuck Schumer and his friends in the liberal media conspired to destroy the life of Brett Kavanaugh and hold that Supreme Court seat open. In light of these two events, I will support President @realDonaldTrump in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg.”
Despite the concern over who will fill Ginsburg’s seat, Democrats and Republicans alike expressed their condolences and reflected on her trailblazing legacy as the nation mourned her passing.
Supreme Court Chief Justice John Roberts Jr. eulogized: “Our nation has lost a jurist of historic stature. 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.”
New York Representative Alexandria Ocasio-Cortez memorialized the justice with a message to progressives: “We have lost a giant in the history of our nation with the passing of Ruth Bader Ginsburg. It is heartbreaking that in her final moments she was, as are many others, preoccupied with what would happen after her passing. I want to make one thing clear: we can, and must, fight.”
(Sources: NYT, Atlantic, Boston Globe, NPR, USA Today, Cornell Law School)