Justice Ruth Bader Ginsburg died Friday at the age of 87. The second woman ever to be nominated to the US Supreme Court, Ginsburg dedicated her life and career to securing the equal treatment of women before the law and in society, concerns that informed her work on the bench. She was also a staunch defender and promoter of so-called “abortion rights”, which she viewed as an integral part of women’s legal and social equality.
Nominated to the Supreme Court in 1993, US President Bill Clinton said that he wanted someone “with a fine mind, good judgement, wide experience in the law and in the problems of real people, and somebody with a big heart”.
That is, by all accounts, what the late Justice Antonin Scalia found in Justice Ginsburg, his dear friend of many years, their many deep and abiding differences in judicial philosophy, constitutional interpretation, and the meaning of social equality and the role of the judiciary in securing it notwithstanding.
“They were both New Yorkers,” wrote US Secretary of Labour and son to the late Justice Scalia in the Washington Post on Saturday, “close in age and liked a lot of the same things: the law, teaching, travel, music and a meal with family and friends. They had a bond, I think, in that they both grew up as outsiders — to different degrees — to the elites who had ruled the country: she as a Jew and woman, he as a Catholic and Italian American.”
“The two justices had central roles in addressing some of the most divisive issues of the day,” the younger Scalia continued, “including cases on abortion, same-sex marriage and who would be president. Not for a moment did one think the other should be condemned or ostracized. More than that, they believed that what they were doing — arriving at their own opinions thoughtfully and advancing them vigorously — was essential to the national good.”
“Justice Ginsburg demonstrated that one can disagree without being disagreeable toward one’s colleagues or different points of view,” said US President Donald Trump in a statement released after her passing — though as Secretary Scalia and others more intimately acquainted with the Justices and their friendship have been keen to point out, that did not mean they minced words or pulled punches.
“Her opinions,” Trump’s statement continued, “including well-known decisions regarding the legal equality of women and the disabled, have inspired all Americans, and generations of great legal minds.”
Born in New York to Jewish immigrant parents in 1933, Ginsburg was educated first at Cornell University and then at Harvard Law School. Her interest in women’s rights piqued early, and she decided to fight for equality from within the legal system. She was a co-founder, in the 1970’s, of American Civil Liberties Union’s Women’s Rights Project. She famously said, “Fight for the things that you care about, but do it in a way that will lead others to join you.”
In practice, Justice Ginsburg also fought for men who were subject to unjust discrimination based on their sex. She achieved a landmark victory in securing Social Security to widowers which were previously only permitted for widows. The case was an interesting one, in which Ginsburg’s capacity to boil issues down and explain the human significance of often arcane legal parsing were both on display.
“[The late] Paula Wiesenfeld [who died in childbirth], in fact the principal wage-earner, is treated as though her years of work were of only secondary value to her family,” Ginsburg argued before the Supreme Court in January of 1975. “Stephen Wiesenfeld, in fact the nurturing parent, is treated as though he did not perform that function. And Jason Paul, a motherless infant with a father able and willing to provide care for him personally, is treated as an infant not entitled to the personal care of his sole surviving parent.” The all-male SCOTUS bench decided unanimously in her client’s favour.
The vacancy her death leaves on the high court has already become a contentious political issue.
Democratic presidential nominee Joe Biden spoke out this weekend, asserting: “The voters should pick the president, and the president should pick the justice for the Senate to consider. This was the position [the] Republican Senate took in 2016 . . . That’s the position the United States Senate must take today.”
Meanwhile President Donald Trump has stated his intention to replace Ginsburg “without delay”. He tweeted: “We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!”
However, National Public Radio reported on Friday that Ginsburg dictated a statement to her granddaughter: “My most fervent wish is that I will not be replaced until a new president is installed.” It appears that desire is not likely to inform the action of either the White House or Republicans in the US Senate. It is not at all clear that it should. Meanwhile, the handicapping of who shall be the nominee has already begun.
Two Catholic names touted frequently for the SCOTUS are those of 7th Circuit Appeals Court Judge Amy Coney Barrett and Judge Amul Thapar of the 6th Circuit Court of Appeals. Both have been appointed fairly recently to the federal appellate bench, experience on which is generally thought to be a requisite for elevation to the Supreme Court.
Both are known as originalists in matters of constitutional interpretation, and practice some form of textualism in their approach to statutory law. Judicial philosophy is likely to be a major theme in Senators’ questions to any eventual nominee, though it is not always an indicator of how judges will come down in any given case.
Right now, very little is certain. One thing, however, is clear: the next six weeks in US political life just became more contentious.