In the hours after Supreme Court Justice Ruth Bader Ginsburg died Thursday evening from her latest bout with cancer, it became clear that politics over the Court’s future will not be suspended, even briefly, for the nation to mourn the loss of perhaps the most consequential woman in America’s history.
The Republican leader of the Senate has already promised that there will be a vote, on the Senate floor this year, on a nominee of President Trump. The Democratic leader of that chamber, in turn, is already calling around to his colleagues to map out an unyielding resistance effort.
The Court itself will reopen its new term 17 days from now, and will function with eight Justices until there is a ninth, whether a new member joins the Court this year or next. It has operated with eight Justices before, most notably during most of 2016, when the Republicans in the Senate refused even to hold a hearing on President Obama’s nominee to the Court, Judge Merrick Garland.
Before Washington’s institutions begin to deal with what’s next for the Court, however, there are sure to be large swaths of the American public that will pause and reflect on what Ruth Ginsburg has meant, especially to women and girls, as the pioneering force in pursuing equality for women in the face of powerful traditional forces of male prerogative and institutional sexism.
The history of women’s rights in this country is filled with the daring and creativity of many women, but there is an argument that no one of them did more than Ruth Ginsburg to put an end to the concept that women are to remain apart, in a sphere of protected but distinctly secondary rank.
As an American Civil Liberties Union lawyer, she wrote a persuasive legal brief that helped lead the Supreme Court in the 1971 case of Reed v. Reed to declare, for the first time in history, that the soaring guarantee in the Fourteenth Amendment of “equal protection of the laws” could be used to strike down laws discriminating between the sexes. As much as the Seneca Falls Convention in 1848 laid claim to beginning the “women’s rights revolution,” the Reed decision can lay claim to starting the constitutional era of that revolution.
While women even today do not yet enjoy full constitutional equality, and probably will not until there is an Equal Rights Amendment, the distance that the concept has traveled over the half-century since the Reed decision is – to a large degree – a tribute to Lawyer Ginsburg and then Justice Ginsburg.
As a Justice, she contributed to a broadening of that 1971 decision when she wrote the majority opinion in 1996 that required the Virginia Military Institute for the first time to admit female cadets. VMI had thought that it could keep its all-male cadet corps because the state had a parallel program at a women’s university – a version of the “separate but equal” concept so notorious in the history of racial inequality. But Justice Ginsburg wrote (in United States v. Virginia) that the Constitution would not tolerate such state-sponsored segregation of the sexes.
In fact, her strategy in that case, and in an impressive list of other women’s rights cases, showed that she had borrowed from Thurgood Marshall in his battles for racial equality of making gains little by little rather than by grand, sweeping victories, until final success. The historic Reed decision itself had been such an incremental gain for sex equality: it involved only the exclusion of women from becoming administrators of estates.
After Ruth Ginsburg’s story is celebrated, it perhaps regrettably will recede from the headlines as Washington starts maneuvering over a nominee to succeed her. Here are some potential answers on how that may unfold:
Q. Will President Trump make a nominee, or pass up the opportunity because it is now so close to an election?
A. It is nearly and maybe an actual certainty that he will pick a nominee, and do so soon. He will not want to give any support to the argument that he has lost that option because of the approaching election. He probably will ask the Senate to act quickly, perhaps before the November 3 election.
Q. Does the Senate have to act before the election, even if there is a prospect that President Trump would lose that election?
A. The Senate does not have to act, and even the President does not have to act, before the voters go to the polls. The current Republican-led Senate can come back in session after the election, and will hold the power to act up to the opening of a new Congress on January 3, even if the Democrats were to win a majority in the Senate on election day.
Q. What would be the wisest thing to do, politically?
A. To do it before the election. If the Democrats were to win a majority of the Senate on November 3 (taking control on January 3), it would be audacious for the Republican leadership to go ahead with the nomination despite having lost control. That would be audacious in the extreme if President Trump has lost re-election. (Audacity, though, was not lacking in 2016, when the GOP leaders refused to act on an Obama nominee over a period of 11 months, which scuttled that nomination.)
Q. Will the Supreme Court’s legitimacy be compromised by the way this is handled?
A. Democrats almost surely would say so, if a Trump nominee succeeds and if they win control and Joe Biden wins the presidency. But the Court is quite a durable institution, and it would do its best to try to move beyond such partisan rancor. Another Trump nominee would be accepted as fully there as were his first two selections, Justices Neil Gorsuch and Brett Kavanaugh, even in the face of heavy controversy surrounding both of those nominations.
Q. Can President Trump do anything in making a selection that would make it more likely to succeed, even in the face of strong Democratic resistance?
A. Yes. He could choose someone with highly rated qualifications, a truly distinguished career on the bench or as an attorney, to try to neutralize the opposition. Choosing a minority figure would also be an asset. A part of any resistance campaign will be one of heavy public relations, and a nominee of rare distinction would make it harder to be totally convincing with extremely negative publicity.
Q. If President Trump gets a new nominee approved, what will that do to the Court?
A. A number of things, near-term and longer-term. If would create the possibility, at least some of the time, for a solid phalanx of six quite conservative Justices who could overwhelm the remaining three liberal Justices. That would put pressure on Chief Justice John W. Roberts, Jr., to try – at least now and then – to lessen a sudden surge to the Right, but his power to do so would be diminished if the five other conservatives were to hold fast together. An extreme possibility: the new Court might form a majority, perhaps 5-to-4, to overturn all of the Obamacare federal health insurance law. Another: almost any new restriction of abortion rights would likely be upheld, although a flat overruling of Roe v. Wade is probably not predictable. Other prospects: the widespread Republican-led effort to make voting more difficult would likely find more favor with a new majority, as would insulating corporations against liability for their misconduct toward workers or customers. Criminal law would be interpreted more often in favor of police, and the death penalty would be made a quicker, more predictable process. The “Black Lives Matter” movement as a political and legal initiative would find a less sympathetic audience. The fairly recent “gay rights revolution” would probably be tempered with more support for efforts to limit the rights of married same-sex couples, favoring restrictions sought for religious reasons. (In general, more causes pursued by those of traditional religious faiths probably would be advanced more often. And the brand-new “transgender rights revolution” would be stalled, especially on the privacy of school restrooms and showering facilities.
Q. What would happen to Ruth Ginsburg’s women’s rights legacy?
A. If the Equal Rights Amendment is not revived, and actually put into the Constitution, the progress that she made toward greater equality would at least be scaled back, although probably not totally reversed. (On a more frivolous level, there will be no Justice who will become the idol of a fizzy new pop culture, like her “Notorious RBG.”)