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.