Judge Not

Thoughts on the Passing of Ruth Bader Ginsburg

Ruth Bader Ginsburg
Justice, United States Supreme Court

A few years back, catching up with an old friend,  I heard a statement that caught me by surprise. “Ruth Bader Ginsburg,” said the voice from Red State America, “has got to go. She’s the biggest threat to America as a country. ”

It’s still a shocking statement, even if my old buddy now has reason to sleep easier.

How did we get to such a place?

Maybe Earl Warren, a former Republican Governor of California appointed by President Eisenhower, was as vilified. Yet the other members of that Court, like so many Justices, were by comparison anonymous. Was Wiliam Brennan ever pictured as the greatest threat the Republic has ever faced? Did William O. Douglas set nervous minds aflutter as he found rights emanating in a penumbra from the Bill of Rights? Did anyone, other than the most devoted SCOTUS fan, know John Marshall Harlan‘s grandfather, after whom he was named, also served on the Court? (And please don’t confuse either of them with Harlan Fiske Stone.)

Yet Justice Ginsburg was a celebrity. The Notorious RBG. Striking terror in the hearts of conservatives, serving as a beacon of hope for and protecting embattled lIberals. That’s a lot to ask of one diminutive jurist.

Sometimes a judge has to remind us that petty politics is not fraud, and therefore not worth locking people up. Even people in the other party.

Any judge doing her or his job properly is bound to piss people off. In that regard, Ginsburg was hardly atypical. Just last term she joined the majority, in a unanimous decision, that overturned the convictions associated with New Jersey‘s Bridgegate scandal. And she authored an opinion (also for a unanimous Court) in Shular v. United States, that supported a minimum sentence for certain drug-related cases. I’ll bet even money those less-friendly-to-liberal moments didn’t soften the sting of her blistering dissent in the Little Sisters…v. Pennsylvania case for conservatives.

I think what might matter more than Justice Ginsburg’s work is her biography. She excelled in her studies and then had door after door shut in her face not because of her qualifications, but because of her sex. Her knowledge of the effects of discrimination on an individual was personal, and no doubt deeply felt. As near as I can tell, she did not become embittered. She famously maintained a close relationship with the Court’s longtime conservative wonder, Antonin Scalia. And she tried to apply the law as fairly as possible.

Justices Ginsburg and Scalia
They answered Rodney King’s great question in the affirmative. Can’t we?

Justice Ginsburg’s death was inevitable. She dealt with pancreatic cancer far longer than most people diagnosed with that disease. Yet it’s still a rare event. There have only been 114 Supreme Court Justices in the history of the nation even as 538 voluble pols sit right across the street year in and year out. So her death offers an appropriate time to reflect on our Republic.

Ours is a zero-sum system. When you go to court one side wins, the other loses. That’s one reason courts serve as a poor venue for establishing public policy; it’s hard to get buy-in when one side feels defeated. In the current age its too easy for defeat to be taken personally. The ultimate threat is to the legitimacy of institutions.

Today, I fear our institutions are at grave risk. The Republican Party has demonstrated it does not care about principle. It does not care about process. It does not care about precedent—even precedent of its own recent vintage. All it cares about is power. A minority party representing a minority of the population they are prepared to do whatever it takes to maintain control. They are not conservatives for they conserve nothing. They are authoritarians unmasked.

And so, I think,  we must protest–legally, peacefully but above all overwhelmingly–in a manner that would make Justice Ginsburg proud.



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