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Champions and legacies / September 23, 2020
With the death of Ruth Bader Ginsburg on Friday, America lost its preeminent champion of women’s rights and gender equity and one of our foremost legal minds since the founding of the Republic. Prior to and during her time on the Supreme Court, Ginsburg created a body of jurisprudence on women’s equality that rivals the contributions of America’s greatest legal titans of the modern era — from Felix Frankfurter to Earl Warren to Thurgood Marshall, all in all very select company. She leaves this world as one of the most famous Supreme Court justices in history. The fame and accolades are very much deserved.

Her death also marks a turning point for the United States, a crucible moment that seems less avoidable by the day. Night had not yet turned to morning — or mourning — before President Trump and Senate Majority Leader Mitch McConnell vowed to fill Ginsburg’s seat on the Supreme Court with a justice who will almost assuredly undo her lifelong advocacy of equal treatment under the law. Trump says he will choose a woman to fill the seat, as if this concession were enough to placate the enormous sense of loss with Ginsburg’s passing. The situation is roughly analogous (if not nearly so outrageous) to President George H.W. Bush’s pick of Clarence Thomas to fill the seat that opened up when Thurgood Marshall retired in 1991 — taking a Black justice who led the fight for racial justice in the U.S. and replacing him with one of the Supreme Court’s biggest reactionaries, on matters of racial equity among others, despite the fact Thomas, too, is Black. The looming appointment by Trump promises to be a disaster for the causes that Ginsburg fought her life for.

As if all this were not bad enough, the stench of rank hypocrisy and double standards emanating like a dead skunk in the road from Senate Republicans makes the politics of judicial succession almost too odious to bear. McConnell famously blocked Barack Obama’s choice of Merrick Garland to join the Supreme Court upon the death of Antonin Scalia by claiming it was too close to a presidential election for the Senate to act on Garland’s nomination. This was in February 2016, eight months out from Election Day. Now McConnell and Senate Republicans plan to bum-rush Trump’s nominee with the 2020 presidential ballot less than six weeks away. Joe Biden and Democrats are demanding that the Senate slow the process down, not unreasonably, so the choice of the Supreme’s Court next justice will fall to a freshly elected president. On Monday, Biden urged “a handful” of Senate Republicans to “follow your conscience” and hold off on acting on a nominee until after the next president takes office. It appears this appeal for conscience-searching has hit a dry well.

Democrats, and the American public in its entirely, are faced with a fateful choice: let this raw abuse of power go by without pushback, or respond in kind. (If the election goes Senate Republicans and Trump’s way, then the poison will mostly be blanched, and life will go on. It’s a reflection of the Republican Party’s lack of confidence in the upcoming results that Trump and company are instead rushing to the ramparts.) McConnell has the power to carry out this outrage, therefore he will, thus cementing his own legacy — as the man who destroyed the U.S. Senate and the little-D democratic legitimacy of the Supreme Court. If Trump’s pick goes through, as seems almost inevitable at this writing, three of the nine justices on the Supreme Court (Gorsuch, Kavanaugh and fill in the blank) will have been appointed by a president who lost the popular vote in 2016 by almost three million ballots. Indeed, only once in the past three decades has a Republican presidential candidate (George W. Bush in 2004, running for re-election) won the popular vote. Consider all the ways the democratic will of the country is thwarted by its institutions. America is stuck with a Constitutional relic in the Electoral College, the U.S. Senate skews heavily Republican (Wyoming, with 560,000 citizens, has the same number of U.S. Senators as California, population 40 million), and now the Supreme Court will go forward with a pending 6-3 conservative majority, with most justices looking forward to hanging around for a generation or more. Either we accept that the deck of American democracy is hopelessly stacked or something has to give.

The former option is unacceptable, which means the latter will prevail, sooner or later. Writing in The Washington Post this week, conservative columnist Henry Olsen decried talk of expanding, or “packing,” the Supreme Court, in response to the GOP-engineered court majority. “Packing the court would de facto end the independence of the American judiciary,” Olsen writes. “It would establish the norm that when the opposition controls a majority of the court, it is legitimate for the ruling party to add as many members as necessary to ensure that the government’s friends control it .... The rule of law as we know it would be gone.” If the concern here is the perceived legitimacy of the court, then Olsen should be honest in admitting that this particular horse has already left the barn. Illegitimacy hangs over this process — and this coalescing Supreme Court — like a cheap suit. Packing the court would be a highly aggressive response to an assault on political norms. Conservatives should review the thermodynamic laws of Sir Isaac Newton and ask themselves why for every action, there wouldn’t be an equal and opposite reaction.

The task ahead for Democrats, of course, is to win in November — the White House first, a majority in the U.S. Senate second. (One of the most important races for the Senate is taking place over the state line in North Carolina, where polls show Democratic challenger Cal Cunningham holds a slight lead over the Republican incumbent, Senator Thom Tillis.) Expanding the Supreme Court to override the conservative majority would be an explosive step, to be sure — which doesn’t mean it should be ruled out. There are, however, other ideas for reducing the power of the Supreme Court and draining it of its political explosiveness — which, to be sure, was never part of the original plan for the one branch of government that is not subject to electoral accountability.

One idea, in theory, ought to have bipartisan appeal, given longtime conservative complaints about judges “legislating from the bench.” It involves Congress invoking its powers under Article III of the Constitution to strip the Supreme Court, and lower courts, of jurisdiction to rule on the constitutionality of duly enacted laws. Never heard of this enumerated power? Neither had I, until reading articles this week by New York University School of Law professor Christopher Jon Sprigman in Slate and The New Republic. Springman lays out a persuasive argument (too nuanced to do justice here, read the links) that Congress has selective power to rein in an overbearing court — which is what America will end up with if right-wing ideologues follow through on their vows to roll back the New Deal state and undo legal and social progress for long marginalized groups, from women to minorities to LGBQT citizens. His ideas are certainly worth exploring before Democrats resort to court-packing and the cycle of retaliation it will provoke. Joe Biden is right about this much: It is time to “cool the flames that have been engulfing our country,” as the nominee put it Sunday in a speech in Philadelphia. “The last thing we need is to add a constitutional crisis that plunges us deeper into the abyss, deeper into the darkness,” Biden said.

Republicans, in response, have apparently decided to go there, an admission of their political weakness, not strength. What, really, would it mean for the Supreme Court to forsake its legitimacy? Nothing could do the trick more than handing down opinions on the law in defiance of the will of America's ascending (and present day) majority — striking down long-accepted legal precedents such as Roe v. Wade (supported by two-thirds of the American people), undoing federal regulatory powers that will be essential to deal with climate change, further trashing voter protections on the heels of the disgraceful 2013 ruling in Shelby County v. Holder, which gutted the 1965 Voting Rights Act and opened the door to GOP voter suppression efforts, and so on. (The first domino to fall will likely be the Affordable Care Act, which Republicans have gone to Supreme Court to overturn as you read these words.) Through her stinging dissents to all of these high court decisions, Ruth Bader Ginsburg emerged as the conscience of the Supreme Court. To expect that to simply disappear because Donald Trump and Mitch McConnell wish it so is the height of folly, and the opening salvo in a full-blown constitutional crisis.

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