Justice Ruth Bader Ginsburg & The Future

As I thought about America’s future without Justice Ruth Bader Ginsburg, I returned to James MacGregor Burns’ Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court, which I discussed on this blog shortly after Justice Brett Kavanaugh’s unsettling confirmation in the fall of 2018. (See also Brett Kavanaugh, Sweet Valley High, & Rape Culture of the Eighties)

A passage I highlighted two years ago in Burns’ 2009 book caught my attention again. It describes the Supreme Court in the 1890s when it was under the leadership of Chief Justice Melville Fuller:*

They looked imposing in their dark gowns as they assembled for their group picture, differentiated mainly by their diverse combinations of beards, mustaches, and side-burns. Their faces seemed benign, perhaps a bit complacent… One wonders, considering some of their earthshaking economic and social decisions during the postwar era, whether they paused for a moment to consider the impact of their decisions on the wretched lives of ill-paid and overworked laborers, mortgaged farmers, penniless immigrants, and slum dwellers.

The only “diversity” on the Fuller Court involved varying types of facial hair. Everyone was a white male. Today, more than a century later, the Court still consists mostly of men, but not entirely. We have Justices Sonia Sotomayor and Elena Kagan, and until last Friday, Ruth Bader Ginsburg. Justice Ginsburg passed away at the age of 87.

She was an extraordinary member of the Supreme Court. During her twenty-seven years on the Court, she routinely authored decisions or dissents that displayed compassion for people and opposition to patriarchal and racist norms.

While many people view the Supreme Court as the protector of the powerless, the reality is that our highest court “has more often been indifferent to the wants and needs of the great majority of Americans (Burns, Epilogue).” Burns notes that our justices are “unelected and unaccountable politicians in robes.”

In Bob Woodward’s book, Rage, Senator Lindsey Graham, who chairs the Senate Judiciary Committee, said that our current Chief Justice, John Roberts, has “joined several 5 to 4 decisions because he doesn’t want the Court… labeled as a political party (see Rage: Trump’s Message to Downplay the Virus Spreads to the Courts ).”

However, it’s hard to deny the close connection between the Roberts Court and conservative politics, as we can see in the Court’s increasingly expansive interpretation of religious liberty.

Recently, in Little Sisters of the Poor v. Pennsylvania (PDF), the majority of the Supreme Court blessed the Trump Administration’s sweeping rule allowing private employers with religious or moral objections to opt out of providing contraceptive coverage in group health plans without any notice. Justice Ginsburg, joined by Sotomayor, dissented:

In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs… Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.

[…]

Destructive of the Women’s Health Amendment, this Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets.

Her dissent does not mention trans men or nonbinary people who may also be impacted by the exemption (the term “women” appears in the statute), but she joined the majority in Bostock v. Clayton County (PDF), which made it clear that Title VII, a federal law prohibiting discrimination on the basis of sex, protects workers from discrimination on the basis of sexual orientation and gender identity.

The Bostock decision was a great outcome, but the majority opinion, authored by Trump-nominee Justice Gorsuch, has a couple of big caveats in it:

The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.

[…]

Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions… But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.

To what extent do private employers have a religious liberty right to discriminate against people who don’t hold their beliefs? When the legal battles related to this question–and so many other questions about our fundamental human rights–reach our highest court, Justice Ginsburg will not be there to hear them.

Her replacement, along with that person’s eight colleagues on the bench, will have a deep and long-lasting impact on our rights. It’s disturbing that our system concentrates so much power in so few people.

_____________________________

*For a look at the many white men who had life-time appointments to our highest court—and their “diverse combinations” of facial hair—check out the National Constitution Center’s 10 Iconic Supreme Court Justice Group Photos.

5 comments

  1. It is disturbing, and if I try to think too much about the long-term, I feel sick with anxiety. So I’m focusing on what I can do RIGHT NOW, and that’s going pretty good so far. I need to call my representatives again today, as I’m definitely not doing that nearly as often as when this all started.

  2. I am heartsick and terrified and angry. I too think SCOTUS has too much power. They should have term limits, 20 years at the most. And the Senate really needs to either be abolished or become proportionally represented. Too many senators from little states have far too much power.

  3. I remember how the news talked, rightly so, about the death of Senator John Lewis for days and days and days. RBG isn’t even in the ground and the vultures are already planning to crap all over her legacy. I wan tto say they won’t replace her immediately, but in the last four years, every time I’ve hope for something politically good to happen, it has not. Well….I guess the governor of Indiana EVENTUALLY came around to a mask mandate, so there’s that.

  4. I’ve got nothing insightful or pithy either, much as I wish I did. I’m heartbroken. And for the first time I can ever remember in my life, cynical. I don’t like myself this way. But I feel her death has given a hard stop to Democrats’ momentum (even though it feels like it should be the opposite) and we are destined to continue to move in a backwards direction for the rest of our lives. Or at least the rest of my life and even that’s way too long for me at 53. I do try to think back to other generations and times where they thought “oh my gosh this is it, we’re never going to survive this” and sure enough, they survived, and we will survive. But it’s going to be ugly.

  5. I want to say something insightful and pithy, but I’m still too soul-sick from her death and what it means to our country to formulate anything meaningful. You’re right, though. SCOTUS has too much power. These appointments should never be lifetime; get a bad apple or two in there, and you end up with Citizens United, which has done so much to hurt the majority of citizens in this country.

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