“I don’t think my efforts would have succeeded had it not been for the women’s movement that was reviving in the United States and more or less all over the world.”
– Ruth Bader Ginsburg, 2013
In 1788 in The Federalist Papers, “Publius” (aka Alexander Hamilton) argued that the judiciary branch of the American republic would have less power than the executive and the legislative branches. ”It may be said to have neither FORCE nor WILL, but merely judgment,” he wrote. If only it were so.
Contrary to Hamilton’s wishes, the judiciary, and especially the U.S. Supreme Court, has exercised both force and will for hundreds of years. While it has rubber stamped freedom for corporations and the few, it has often annihilated life, liberty and the pursuit of happiness for the many.
In fact, the court has acted not only as judge, but also as a jailer and as executioner. Five days before Biden became president, the Supremes issued an order that made possible the execution of Dustin J. Higgs, a 48-year old African-American sentenced to death for murder. Higgs was the 13th person executed by the state between July 2020 and January 21. Justice Sonia Sotomayor called it “a spree of executions.”
From the earliest tentative beginnings of the American experiment in democracy, to the present day, U. S. Supreme Court Justices have shaped the political contours of the nation and altered the lives of individuals, including Dred Scott, an escaped slave made famous by Dred Scott v. Sandford (1857), and Charles Schenck, an anti-war protester who figured in Schenck v. The United States (1919).
In Dred Scott the Supreme Court ruled that Scott was private property, and that as a Black man he could not claim U.S. citizenship and therefore was ineligible to bring a suit in federal court. Sorry Scott: back to bondage
Sixty-two-years later, the court ruled that Charles Schenck—a pacifist and a member of the U.S. Socialist Party—could not claim that the anti-draft leaflets he distributed to young men during World War I were protected by the First Amendment to the Constitution. Sorry Schenck: go to jail, buddy. Rulings like Dred Scott and Schenck have been the norm ever since the Supreme Court was established in 1789.
Citizens United v. Federal Election Commission (2010)—which ruled 5-4 that corporations have the same free speech rights as citizens—is one of the most recent egregious examples of the Supreme Court’s drift to the right and its exercise of both force and will.
Justice Anthony Kennedy, a Reagan appointee, wrote the decision for the majority in Citizens United. Justice Bader Ginsburg, who joined the court in 1993 and who died in 2020, joined with Stephen Breyer, a Clinton appointee, and Sonia Maria Sotomayor, an Obama appointee, as well as Justice John Paul Stevens, who wrote the dissenting opinion. A 5-4 decision: a familiar story on the court.
American citizens who grew up in the 1950s, 1960s and early 1970s tend to remember the court as a bulwark for basic freedoms and for landmark decisions like Brown v. Board of Education (1954), Loving v. Virginia (1967) and Roe v. Wade (1973). Alas, though some Supreme Court decisions have been worthy of cheering, they have not resolved for all time issues such as freedom of speech, abortion and affirmative action. It took the Civil War, not arguments in court, to end chattel slavery.
Few liberal judges have had a wider, deeper impact over the past half-century than Bader Ginsburg, who wrote majority opinions in United States v. Virginia (1996), which struck down the male only admissions policy at Virginia Military Institute. and Olmstead v. LC(1999), which held that individuals with mental disorders had the right to live in a community, not in an institution, when appropriate. Also, few judges have been as beloved as Bader Ginsburg, especially among women of all ages.
Of the 114 Supreme Court Justices in U.S. history, all but six have been white men. RBG joins a pantheon of exemplary judges that includes Louis Brandeis, who aided the development of the right to privacy, William O. Douglas, a bold environmentalist, and Earl Warren, who presided over the court for Brown v. Board of Education (1954), which helped end legal segregation.
More than any other justice, Bader Ginsburg feels like a member of my extended family. My mother, Mildred—who was Jewish, a Lefty, and born in Brooklyn— never knew Bader Ginsburg, who was also born in Brooklyn to a Jewish family. Bader Ginsburg died on September 1, 2020, twenty-five years after the death of my mother, who aimed for gender equality all through her marriage and after my father’s death.
Like my mother, Bader Ginsburg usually knew when to speak and when to remain silent, as on the occasion when Supreme Court Justice William Rehnquist asked her, after oral argument in the case of Duren v. Missouri, “You won’t settle for putting Susan B. Anthony on the new dollar, then?” Justice Ginsburg would explain that she thought she might have said, “We won’t settle for tokens.” Instead she chose to seal her lips.
But she spoke out again and again, as when Columbia University, where she taught law, fired 25 women who were maids, but fired no men on the staff. Bader Ginsburg told the vice president of the university that the institution was violating Title VII, which is part of the Civil Rights Act of 1964, that outlawed discrimination based on race, color, religion, sex, and national origin. The Columbia administrator told her, “Columbia has excellent lawyers and would you like a cup of tea?” Later, Title VII was expanded to include sexual orientation and gender identity. That was, in part, Justice Ginsburg’s doing. Indeed, she helped engineer a gender revolution and bring women’s liberation to the Supreme Court, though she wore black robes, along with a white collar, and used legal language.
“The Supremes,” as my friends and I have called the justices on the highest court in the land often sided, with money and power and against working people, immigrants, citizens of color and women. All through the 1960s and 1970s, I believed that if Americans wanted justice, they ought not to take a case to the Supreme Court, but rather to the streets, and to march, protest, sit-in and picket in the spirit of Dr. Martin Luther King, Jr.
Justice Ginsburg showed me and many of my peers that the Supreme Court could be an effective instrument for social justice, though her approach to adjudication was cautious and measured. During her lifetime, she adhered to a sense of civility which I sometimes found troubling, especially during the years of her genuine friendship with Justice Antonin Scalia—they attended the opera together—who seemed to be her ideological adversary.
Ginsburg wasn’t infallible and knew it, too. She came to regret her decision in City of Sherrill v. Oneida Indian Nation of New York in which she dismissed the Oneida tribe’s legal claims to its ancient lands. She changed her tune and her rulings in matters that concerned American Indians. In 2020, as though to make amends, she suggested that U.S. District Judge Diane Humetewa, a Hopi, be appointed to the U.S. Supreme Court. Diversity was one of her rallying cries. So was play, in more ways than one.
In Venice on vacation, Bader Ginsburg was invited by actor and director, F. Murray Abraham, to take the role of the judge in a reenactment of the trial of Shakespeare’s Shylock from the Merchant of Venice. Ginsburg accepted the role. After closing arguments, she found the merchant not guilty by reason of mental incompetence. Murray Abraham came away from the experience impressed with Ginsburg’s “grace,” “intelligence” and “most of all her humanity.”
A woman of her time and her place, Justice Ginsburg also transcended boundaries, broke with traditions and set a high standard for women who entered the legal profession, dreamed of becoming judges and advancing the cause of social and gender justice. I like to imagine that RBG might haunt Amy Coney Barrett, Trump’s last appointment to the Court. In 1972, the year Barrett was born, Bader Ginsberg co-founded the Women’s Rights Project at the American Civil Liberties Union (ACLU).
Barrett assumed office less than two months after Justice Ginsburg’s passing. A staunch defender of “originalism,” Barrett has insisted that the U.S. Constitution must be understood and interpreted in ways consistent with what it meant to the Founding Fathers in the late eighteenth-century. Justice Ginsburg might well have argued that Barrett aims to turn back the clock, find the Affordable Care Act unconstitutional, overturn the Voting Rights Act, undo landmark decisions like Roe v. Wade and reaffirm the Second Amendment, which the National Rifle Association has exploited.
Maybe the newest associate justice will have a change of heart.. Perhaps as the mother of seven children, as a Catholic, and as a descendant of Irish immigrants, Barrett will come to see the world through the eyes of Americans who have unjustly suffered wrongs. Stranger things have happened on the highest court in the land.
Alabama-born Hugo Black, who was appointed to the Supreme Court by Franklin D. Roosevelt, belonged to the Ku Klux Klan in the 1920s. He consistently opposed anti-lynching legislation. But on the Court he ruled in favor of African-American criminal defendants who were denied due process of law. Near the height of McCarthyism, Justice Black opposed the Smith Act, which made it a crime to advocate or teach the overthrow of the U.S. government. Not to actually engage in an insurrection but to share the idea. “There is hope, that in calmer times,” Black wrote, “this or some later Court will restore the First Amendment liberties to the high, preferred place where they belong in a free society.” Like Hugo Black, Felix Frankfurter and Thurgood Marshall—the first African American on the Supreme Court— Ruth Bader Ginsburg understood that the Supreme Court was shaped by “political climate” and that it was essential for laws to change, as society changed.
The death of justices, along with appointments to the Supreme
Court have never taken place in social, political and economic vacuums. Last year was no exception. President Trump nominated Amy Coney Barrett to the Court on September 26, 2020, just eight days after Bader Ginsburg’s death, with the nation caught up in a terrible pandemic, the economy in a tailspin and a campaign for the White House mired in lies, untruths and fear mongering. After her passing, Ginsburg became the first woman and the first Jewish American to lie in state in the U.S. Capitol.
At the Rose Garden nomination ceremony for Barrett many of the two hundred or so guests did not wear masks. Trump wore no mask. Soon after that ceremony, on October 2, 2020, he tested positive for COVID-19. Dr. Anthony Fauci, called the ceremony a “super-spreader event.” The senate confirmed Trump’s nomination by a vote of 52-48, that split along political lines. Barrett was sworn in by Clarence Thomas who was accused of sexual harassment by Anita Hill.
Across the country, fans of RBG went into mourning after she died and decried the Supreme Court’s shift to the right.
Ginsburg told her granddaughter, during one of her last conscious moments, “My most fervid wish is that I will not be replaced until a new president is installed.” After her passing, Anita Hill observed, “You don’t always have to be in the winning column to be powerful.” Alexander Hamilton, who insisted that the judiciary would be the “least dangerous” branch of government, might rise from his grave and warn citizens that the Supreme Court could be as dangerous as the executive and legislative branches.
Harvard University law professor Randall Kennedy recently warned that the Republican justices “will act calmly, quietly and deliberately to entrench the policies propelling the degradation of democracy in America.” They’ve had lots of practice and they have the examples of many of their predecessors on the court, including Roger Taney, Melville Fuller and Oliver Wendell Holmes, who offered in their decision a ”clear and present danger” to equality, justice and freedom.