Subject of a book, a popular movie, praised for her admirable fitness regimen and now dissenting yet again on a 5-4 vote pushing back workers’ rights, yes, Supreme Court Justice Ruth Bader Ginsburg–affectionately monikered RBG, doth dissent. Despite my respect for her brilliant legal mind and years of service, I now give her no credit for dissents. Game’s up. She should be held to account.
It’s too late for her to wear her trademark white dissent “jabot” (collar) and write a labored protest. It’s too late for the nation whose decades of legal progress she aims to defend. Instead, inexplicably, she has willfully sacrificed her own progressive legal legacy to retain her tenure terminally. Incidentally, in a surprising display of protest for a sitting justice, she wore the same collar when the court first sat in session after the election of Donald Trump.
Appointed by democrats, 2 of the 4 progressive Supreme Court Justices–octogenarians both–are, while largely still cogent, in their feeble last-gasps as they vote in the minority on the Supreme Court. Their gracious resignations a decade ago would have done the nation a great service.
Tipping the balance as the moderate swing vote against the rising tide of conservatism, 81-year old Justice Anthony Kennedy, appointed by President Reagan will, by all accounts, soon resign. Why didn’t Justice Ginsburg–the oldest on the court at 85–and Justice Stephen Breyer, 80, resign early enough to open the bench to inheritors of their progressive philosophy? Why? Was it ego, perks, intransigence in the face of the obvious, not letting go of their historic roles?
For all her history of mighty jurisprudence and typically spry presence, Justice Ginsburg is not always alert on duty. She allegedly told one of her aides as the late Justice Antonin Scalia was talking: “wake me up when he’s done…I’ve heard all this before.” Indeed! She also was photographed nodding off during President Obama’s 2015 State of the Union address. Then there was this business about claiming she was a bit buzzed?
As did many others, I wrote to Justice Ginsburg, in April, 2015 begging her to resign (earlier post). Her office demonstrated a surprising lack of official courtesy, sending no acknowledgment of receipt much less a reply.
After President Obama’s successful appointments of Justice Sonya Sotomayor in 2009 and Elena Kagan in 2010, Republicans were apoplectic at the prospect of a potential shift toward a more progressive court if Hillary Clinton were to be elected. After all, it was no one’s forgone conclusion–not even the candidate’s himself–that Donald Trump would become President. After the death of the late Justice Antonin Scalia, we watched the Senate mount a shockingly brazen and ultimately successful campaign, to obstruct, by all means, President Obama’s 2016 nomination of his last possible appointment, Judge Merrick Garland, who was considered a moderate by both sides of the aisle. Led by Majority Leader Mitch McConnell, Senators used every tactic in the book to stonewall consideration of the nominee, even at the expense of allowing an unprecedented open seat on the court for more than a year. A missing Justice had not occurred since 1864–at the height of the Civil War– under President Abraham Lincoln.
“Chief Justice Roger Taney, author of the notorious pro-slavery Dred Scott decision, died in October 1864, just weeks before the election. After Lincoln won re-election, he appointed the anti-slavery Salmon Chase as chief justice in December 1864. That tipped the ideological balance of the court in Lincoln’s favor…” This from Fortune Magazine, Sept 30, 2016, which incidentally included a photo of the Justices at the same State of the Union address, all awake and attentive. Lincoln’s appointment of Justice Chase serves as an ideal example of the ideological “test” which inevitably comes into play now when new justices are nominated and endure hours of cross-examination in Congress.
Obama would have had to begin the Justice replacement process early in his presidency–likely in the first term–to have successfully seated 2 more progressive judges for a total of 4. (George Washington appointed 11 Justices and Franklin D. Roosevelt appointed 9.)
Today’s senior judges did not offer strategic resignations for the good of the country. Democrats were caught too late and progressives now mourn the many pending conservative constrictions which are creeping across all dimensions of society. If Obama had managed to nominate and confirm a youthful progressive bench, we’d be looking ahead at a very different national landscape. We would have preserved decades of enlightened judicial rulings on individual liberties–including a woman’s right to choose, protection of workers, curbing corporate power, fixing election law, access to education and so much more. Every facet of life is now vulnerable to be ruled in retrograde. As a nation, our collective pursuit of happiness will devolve under increasingly conservative interpretations of our constitution.
As much as we were caught off guard by the election of President Donald Trump, we should recognize that, yes, many people held their nose and “voted Republican for the Court.” Even as I held my nose with a less-than-ideal candidate in Hillary Clinton, I too “voted Democrat for the Court”. With voters’ visceral polarization on issues such as women’s right to choose under Roe v Wade, the focus on the court reigned supreme.
No raging stream of revelations, allegations or shocking displays of inappropriateness would sway even a majority of women who voted for Trump. The prospect of setting the country on a conservative path for decades to come was too good to pass up–no matter what devil they had to digest.
This chart shows an interesting visualization of justices’ ideological leanings over the decades.