24.09.2020

Royal high court

Why the commotion over the death of justice Ruth Bader Ginsburg? Daniel Lazare gives his answers

When law is king, its official interpreters become royal alter egos. These are the people charged with explaining the law, resolving its contradictions, and updating it in view of changing circumstance. Other officials - presidents, generals, and whatnot - wind up taking a second seat, because their job is merely to execute the law rather than determine what it means.

If you can wrap your head around this very American concept of legal supremacy, then you can understand why the death of Supreme Court justice Ruth Bader Ginsburg is generating such an outpouring of grief among US liberals, as well as triggering a first-class constitutional crisis.

Ginsburg, who succumbed to cancer on September 18 at the age of 87, was a feminist icon who became a hero of the anti-Trump ‘resistance’ by speaking out against the high court’s growing drift to the right. With her frilly lace collar, oversized glasses, pulled-back hair and bird-like stature, the ‘Notorious RBG’ - so called after the rapper, Notorious BIG - became as instantly recognisable as Trump himself. Young women tattooed her image on their arms, little girls donned RBG costumes for Halloween, while in 2018 a shop opened up in Washington DC, offering a long list of RBG-themed merchandise: yoga mats, water bottles, action figures - the works. Hollywood even rolled out a biopic, On the basis of sex, about a pioneering sex-discrimination case she argued in 1970.

“The word ‘woman’ does not appear even once in the US constitution,” the film has a federal judge intone. “Nor does the word freedom, your honour,” the spunky young attorney replies. The judiciary’s role - liberals would call it a moral duty - is to fill in such lacunae, so that the law can be made even “more perfect” (to quote the constitution’s preamble) than it already is.

But, as the current crisis shows, there is a problem with the Ginsburg story - several, in fact. One is that the high court was already moving to the right when Bill Clinton nominated her in 1993. As a centrist who alarmed feminists by arguing that Roe v Wade - the landmark 1973 ruling establishing the right to an abortion - had been wrongly argued and had gone too far, she was thus part of the problem and only raised the alarm when the drift, in her estimation, had gone too far.

Another problem is that after suffering repeated bouts of cancer, she clearly held onto her judicial position for too long, out of what appears to have been pure vanity. Feminists were outraged when a chorus of liberals seized on her 80th birthday in 2013 to call on her to step down while Barack Obama still had time to appoint a younger liberal to take her place. “All the ‘Ruth, haven’t you had enough?’ talk starts to seem a wee sexist,” one declared.¹ Another insisted that she was “irreplaceable”.² Ginsburg encouraged the outcry, vowing to soldier on, “as long as I can do the job full steam.” After all, “There will be a president after this one,” she observed, “and I’m hopeful that that president will be a fine president.” Considering that the next president turned out to be Donald Trump, the result was a massive miscalculation that shows how detached from political reality the liberal elite had become.

But there is a third problem as well: the court itself. Nothing like it exists in the so-called democratic world, because nothing like the US constitution exists either. One is a 230-year-old plan of government that is so unchangeable that it is all but written in stone, while the other is a council of constitutional high priests, whose job is to move the immovable via the miracle of re-interpretation.

This in a nutshell is what America’s great constitutional wars are all about. As the constitution grows older and older, two basic trends are discernible:

(1) It departs more and more from the needs of larger society; and

(2) It turns more rigid and change-averse.

The difficulty lies with article V, which stipulates that two-thirds of each house of Congress plus three-fourths of states must give their say-so before the document can be modified in the slightest. In 1790, the three-fourths rule meant that four out of 13 states could block any constitutional change, even though they represented as little as 10% of the population. Since nearly half the states allowed slavery, the effect was to paralyse politics until the Civil War. Today, with the number of states now at 50, the same rule allows 13 of them to do the same, even though their population share is now down to as little as 4.4%.

The constitution is thus 2.2 times more change-averse than it was at its inception. The result is more paralysis and more anger, as the democratic majority finds itself frustrated at every turn.

Reactionary

For much of its history, the Supreme Court fuelled the fires by interpreting the constitution in the most reactionary way possible.

In 1859, it precipitated the Civil War by declaring in the famous Dred Scott case that even free blacks “had no rights which the white man was bound to respect”. Beginning in the 1870s, it rolled back whatever rights African-Americans had left to them by virtue of Reconstruction. It slashed labour rights nearly to zero, while expanding managerial power to the point where corporations became the part that swallowed virtually the whole of US politics.

But a funny thing happened on the way to the fascist inferno. After years of blocking Franklin D Roosevelt’s New Deal reforms - and just months after FDR floated a court-packing scheme that would have allowed him to stack the court with liberal appointees - it switched gears in 1937 by approving a minimum-wage law it had previously opposed. One liberal wag called it “the switch in time that saves nine”. The upshot is that, by the McCarthyite 1950s, the court had suddenly emerged as the most liberal show in town. In 1954, it issued its epic decision in favour of school desegregation. Beginning in 1962, it declared that southern state governments could no longer stack the deck in favour of conservative rural voters while short-changing city dwellers and suburbanites. Starting in 1963, it ruled that all criminal defendants must have access to an attorney and be informed of their rights before undergoing police interrogation. Other decisions vastly expanded the right of free speech, free expression, sexual equality and privacy.

It was a classic ‘revolution from above’, with all the usual contradictions. Formerly, liberals had denounced the court as a font of high Toryism. But now they defined themselves by their loyalty to nine unelected justices, who are appointed for life. Instead of championing mass democracy, they allied themselves with angry black militants, while sneering at working class whites as incorrigible racists.

As the academy drifted leftward as well, the upshot was a growing ‘Brahmanization’, in which college-educated liberals embraced affirmative action, feminism and gay rights, while black ghettoes exploded in violence and disillusioned whites fled to the suburbs. Deindustrialisation and the collapse of organised labour added to the growth of an amorphous populism that was increasingly rightwing.

Which brings us to RBG. Female, a brilliant student (she graduated at the top of her class at Columbia law school) and affluent (her husband served as a tax attorney for billionaire H Ross Perot, who returned the favour by endowing a chair for him at Georgetown University law school in Washington), she was straight out of central casting, as far as affluent anti-Trumpsters were concerned. When not drumming up Russophobia and denouncing Trump as a tool of the Kremlin, CNN - owned by Warner Media, the world’s biggest communications conglomerate - anointed her the “face of the resistance” and produced an adoring documentary in 2018 entitled RBG.

“I can’t tell you how happy it makes me to see her name on campus T-shirts as the Notorious RBG,” gushed Gloria Steinem - the same Steinem who caused an uproar by declaring that young women were only flocking to the Bernie Sanders campaign because “the boys are with Bernie”. Ginsburg revelled in her newfound celebrity, sporting an RBG tote bag in public and distributing RBG T-shirts to friends and admirers.

Supremes

This is why the high priestess’s death is generating such widespread grief. But it is also generating fear about what the coming period holds. With less than six weeks left to the election, Trump has announced his determination to ram through a replacement. The constitution says the Senate must approve any such nomination, and at the moment it looks like enough members of the Republicans’ 53-47 majority will go along with it. If they do, the implications are chilling.

The leading candidate is a 48-year-old federal appeals judge named Amy Coney Barrett, whose academic record is just as stellar as Ginsburg’s, but who is a graduate of a rightwing legal brotherhood known as the Federalist Society and, until recently, a member of a secretive Christian charismatic group known as People of Praise. The group requires members to swear loyalty to one another and to submit to direction by a personal advisor known as a “head” in the case of men and a “handmaid” if they are a woman. The advisors teach that husbands must rule and provide instruction about whom underlings should marry or date, where they should live, what jobs they should take or whether they can buy a home, and how they should raise their children.³ It could not be spookier, yet Democrats will undoubtedly run into a buzzsaw if they dare criticise the nominee’s religious views.

Barrett also supports expanded gun rights and, in a particularly cruel decision, upheld the right of US consular officials to deny an entry visa to the wife of a Yemeni-born US citizen. Barrett is on record as stating that Roe v Wade “will probably stand”.⁴ But, since she has refused to oppose efforts to restrict access or funding, she will likely allow states to nibble abortion to death rather than voting to overturn it outright.

Assuming she proves as durable as RBG, Barrett could use her high-court seat to impose such beliefs on a hapless nation until the year 2059 or 60, and there will nothing that liberals will be able to do in response. The court’s current 5-4 conservative line-up will give way to an unbreakable 6-3 Republican majority, which means that, even if Trump loses in November, his Supreme Court legacy will live on for a decade or more.

As awful as this is, the consequences, believe it or not, could be even worse if the nomination fails. With just eight members, ‘the Supremes’ could find themselves split down the middle if the presidential election winds up in their hands the way it did in December 2000. If so, the constitution outlines a bizarre procedure for resolving the deadlock, dictating that the election must then move to the House of Representatives, where members will be required to vote en bloc as state delegates. This means that California’s 52 representatives will have the same weight as demographically-challenged Wyoming’s three, even though its population is nearly 70 times greater.

No one knows what will happen or who will prevail under such absurd circumstances, but there is a good chance that the whole undemocratic process will collapse of its own weight, if it has not done so already. News outlets are filled with gloom and doom articles about the chaos that the upcoming elections may well bring. But now Americans have even more cause for worry.

Such is the price of abject constitutional worship. After placing their bets on a lifetime judiciary, liberals now find themselves prisoners of arcane 18th-century procedures that are beyond their control.

Things may work out this time around, but America’s luck will eventually run out.

E Bazelon, ‘Stop telling Ruth Ginsburg to retire: it’s counterproductive’ Slate December 18 2013: slate.com/news-and-politics/2013/12/ruth-bader-ginsburgs-retirement-stop-telling-the-supreme-court-justice-to-quit-so-obama-can-appoint-her-successor.html.↩︎
D Lithwick, ‘Ruth Bader Ginsburg is irreplaceable: all you liberals trying to push her out, think about that’ Slate March 19 2014: slate.com/news-and-politics/2014/03/ruth-bader-ginsburg-shouldnt-retire-shes-irreplaceable.html.↩︎
nytimes.com/2017/09/28/us/amy-coney-barrett-nominee-religion.html.↩︎
ndsmcobserver.com/2013/01/law-professor-reflects-on-landmark-case.↩︎