A LEGACY DISREGARDED

Ruth Bader Ginsburg left us one of the greatest legacies in the history of the US Supreme Court. It could be best described as a continuous and ardent defense of individual rights in the face of state overreach and abuse of power. Her last request was that, in a controversial election year and down to the wire before voting day, the voice of the people should be heard before someone was chosen to attempt to take her place. That request was not only not heeded, but was demonstratively and almost viciously disregarded. Justice Ginsburg deserved better.

Justice Ruth Bader Ginsburg

The death of this iconic American jurist was all but lost in a chaotic  pre-electoral news cycle fraught with extenuating circumstances—the worst pandemic in a hundred years that the administration has chosen to ignore in hopes that it will simply go away, the most divisive political climate in recent memory and perhaps since the Civil War, widespread demonstrations to demand respect for human and civil rights around which extreme elements from the outer fringes of both left and right have sought to stoke violence, and a sitting president who has incited violence himself while suggesting that he could very well not accept the outcome of the current democratic process and, if he loses next week’s election, could presumably have to be removed from office by force.

Nor did the administration and the Republican-led Senate (read: Majority Leader Mitch McConnell) give us time to mourn and honor Justice Ginsburg as she deserved. Instead, they made it immediately clear that they planned to pick an extreme conservative out of a hat—women’s names only, to try and appease female voters whom the current president is shedding like coronavirus at a super-spreader event—and ramrod her appointment through the Senate in the nick of time before the First Tuesday in November. And that is precisely what they have done.

It would be unfair to either woman to say that Amy Coney Barrett, who this week initiates her tenure as a new associate justice of the US Supreme Court, “replaces” Justice Ginsburg. She couldn’t, because Ginsburg’s shoes are unfillable—at least by any of the candidates that the President considered. And, besides, that’s not what Coney Barrett is there to do. No matter what sort of justice she proves to be in what will very likely be her decades in the post, for the moment, Justice Barrett is a ringer, a linchpin nomination designed to pack the Court with conservatives so as to affect US law for generations to come, even though there is every indication that the majority of Americans are currently of a much more liberal political bent. There is reason to suggest that she has been chosen not because of any judiciously even-handed interpretation of the law that she may have, or claim to have, but, indeed, because of her extremely conservative views, as they emerge from her past writing, speeches, decisions, associations and statements, no matter how carefully she avoided reflecting those views during Senate hearing questioning by opposition lawmakers.

Amy Coney Barrett at the White House

Seeking to strike any comparison between Coney Barrett and Justice Ruth Bader Ginsburg would be almost cruel. Next to RBG’s extraordinary accomplishments by the time she first came to the Supreme Court, Amy Coney Barrett is a relative novice. But taken beyond the boundaries of her ostensibly being a “replacement” for Ginsburg, she indeed has a sound (though not astounding) legal curriculum vitae.

After graduation from an all-girls Catholic high school in New Orleans, where she was class vice-president, Coney Barrett attended Rhodes College in Memphis, where she majored in English literature and minored in French, graduating magna cum laude in 1994. She was awarded a full tuition scholarship to Notre Dame Law, where, among other honors, she served as executive editor of the Notre Dame Law Review. She graduated at the top of her class earning a juris doctor suma cum laude degree in 1997. That same year she began clerking for DC District US Court of Appeals Judge Laurence Silberman. The following year, she went to work as a clerk for US Supreme Court Justice Antonin Scalia and remained with him throughout 1998 and 1999. For the next three years, she worked for a boutique law firm in Washington that later merged with a bigger law firm in Texas. Following the merger, she participated on the research team for a lawsuit entitled Bush v Gore, emerging from controversy over the 2000 presidential election results. Her firm represented George W. Bush. The rest of her credits are academic and include teaching or acting as a research fellow at George Washington University, University of Virginia Law, and at her alma mater, Notre Dame, imparting subjects related to the federal courts and constitutional law and researching and writing on topics related to constitutional law, originalism, statutory interpretation, and stare decisis (litigation according to precedent) for the Columbia, Cornell, University of Virginia, Texas and Notre Dame Law Reviews, among other publications.  

In 2010, Supreme Court Chief Justice John Roberts appointed Coney Barrett to serve as a member of the Advisory Committee for the Federal Rules of Appellate Procedure. It wasn’t until 2017, that she was named by the Trump administration to serve as a federal judge for the US Seventh District Court of Appeals, thus providing her with less than three years’ experience on the federal bench. Her ultimate Senate confirmation in that post was contentious, since Democrats saw her as a political appointee chosen more for her staunch anti-abortion stance and her dubious stated views on whether Rowe v Wade should be overturned than because of her general record as an attorney and educator. She is also believed to favor overturning the Affordable Care Act and to hold staunchly rightwing views on immigration. Nor did she prove herself capable, during her Supreme Court nomination hearing, of clearly answering what her response would be if President Trump were to try and make good on his threat to refuse to give up the White House if he is defeated in next week’s election—an act that, if carried out, would be clearly unconstitutional, if not seditious. These topics and her relative inexperience were some of the same issues that came up regarding the eleventh-hour GOP rush to place her on the Supreme Court while they still hold a Senate majority in case they are voted out of office, which, according to recent polls, appears not unlikely.

Ruth Bader Ginsberg, meanwhile, has been described in liberal legal circles as, quite simply, “the most important woman lawyer in the history of the Republic,” and one of the most famous and popular justices in the history of the Supreme Court. The “notorious RBG”, as she was fondly known, has quite literally become a pop icon, something few if any other Supreme Court justices in history can boast. And, by contrast and comparison, Amy Coney Barrett has become an unwitting catalyst for the posthumous exponential growth of Ginsburg’s popularity, particularly among American women. In her place at the other end of the spectrum, Coney Barrett is cast by liberals as the GOP’s “handmaid”—a reference to Margaret Atwood’s political fiction, The Handmaid’s Tale, in which, from one day to another, an all-pervasive quasi-evangelical state policy is violently imposed to disempower women.

By the time RBG was appointed to the Supreme Court by the Clinton administration in 1993, she had already served as a federal judge on the Second Circuit Court of Appeals for the District of Columbia for nearly thirteen years, having been nominated for that post by the Carter administration in 1980. She was known as a prudent, judicious and moderate jurist who was adept at seeking points of agreement with her conservative colleagues—including her later fellow Supreme Court Justice Antonin Scalia—and reaching a consensus for the appellate court’s final decisions.

Daughter of a Ukrainian-born father and a first-generation Polish-American mother, RBG attended the same public high school in Flatbush (Brooklyn), New York, as Senators Bernie Sanders, Chuck Schumer and Norm Coleman. She lost her mother, who had inspired and encouraged her to be all she could be, to cancer the day before her graduation. Despite this blow, by age seventeen, she not only had her high school diploma but was also enrolled in the academically prestigious Cornell University, majoring in Government, and graduating first in her class in 1954.

She married her husband, tax attorney Martin Ginsburg, right out of college at twenty-one, and accompanied him to Ft. Sill, Oklahoma, where he was assigned for active duty as an ROTC Army Reserve officer. There, she landed a job working for the Social Security administration for two years, but was demoted in her second year after she became pregnant. This early incident was one of the personal injustices that she suffered that would later affect her interpretation of sexual discrimination under the law.

Another was when she enrolled and was accepted at Harvard University’s Law School. She was one of only nine women out of a class of several hundred. Early in the year, the dean of Harvard Law invited all nine women to his home for dinner and, once they were seated at his table, asked each to explain why she had decided to come to Harvard Law to take a place that could have been filled by a man.

RBG later transferred to Columbia Law in New York City, from which she graduated in 1959, tying for top of her class. While studying, she became the first woman in history to be on the staff of both the Harvard Law Review and the Columbia Law Review. In 1960, with the recommendation of the dean of Harvard Law, she sought a position as a clerk for Supreme Court Justice Felix Frankfurter, but was turned down strictly based on her sex. She later sought a similar position, with the recommendation of Columbia Law professor Gerald Gunther, on the staff of New York Southern District Federal Court Judge Edmund Palmieri, but was also at first rejected because of her gender. But Gunther doubled down, telling Palmieri that he would never again recommend a Columbia Law graduate to the Judge if he failed to hire Ginsburg. She then got the job, and held it for two years. Ironically, young legal professionals like Amy Coney Barrett who never have had to smash through the gender barrier to gain access to jobs in the federal legal system owe an enormous debt to Ruth Bader Ginsburg, parts of whose legacy the GOP is now seeking to undo.

From 1961 to 1963, RBG worked on an international legal procedure project sponsored by Columbia Law, for which she learned Swedish and carried out extensive research at Sweden’s Lund University, the result of which was a book that she co-authored with Swedish legal expert Anders Bruzelius—a member of a famous family of Scandinavian jurists.  It was while in Sweden that she further developed her stance on democracy and women, noting that anywhere from twenty to twenty-four percent of all Swedish law students were women, while in the US, with a few brilliant exceptions like herself, the legal profession tended to be a closed boys’ club. She also took note of the fact that one of the Swedish judges whom she interviewed for her project was eight months pregnant and still on the job. She came back from Sweden convinced that a more equal and democratic world for women than the one in the US was possible.         

When Ginsburg acquired her first teaching post at Rutgers Law in 1963, she was one of only a score of female law professors in the entire country. She taught civil procedure at Rutgers until 1972. While teaching there, RBG co-founded the Women’s Rights Law Reporter. It was the first US legal journal whose entire focus was set on women’s rights.

RBG in the '70s

In 1972, she became the first tenured woman professor ever to teach at Columbia Law. She remained at Columbia until 1980. While there, she became the co-author for the law school’s first sex discrimination casebook. Also during that time, she put in a year as a research fellow at Stanford University’s Center for Advanced Studies in Behavioral Sciences.

Also en 1972, RBG became a co-founder of the American Civil Liberties Union’s Women’s Rights Project. The following year, she became general counsel for that project. As such, she was a front-line participant in some three hundred general discrimination cases that the ACLU filed by the end of the next year. As the project’s general counsel, it was her job to personally argue six discrimination cases that the US Supreme Court heard between 1973 and 1976. She won favorable Supreme Court decisions five out of those six times.

Constitutional scholars tend to agree that Ginsburg chose her battles carefully, going after sex discrimination one precedent at a time rather than battling the Court for a blanket ban on all gender discrimination, which, in those times, she was unlikely to achieve. By concentrating on specific statutes throughout the country, she was creating the building blocks for a broader assault on gender inequality. Nor did she limit her plaintiffs to women, since by adding the cases of some men, she was implicitly proving that sex discrimination affected everyone, not just women. Examples included cases in which men, on the basis of gender, were denied benefits that women received—e.g., a widowed man who was denied Social Security benefits paid to widows caring for small children but not to widowers in the same situation, and a male caregiver denied a tax deduction provided to female caregivers.

Additionally, she couched the language of her legal briefs, preferring the term "gender" to the trigger-word "sex", which, she felt, might distract male judges hearing the cases. And it is important to note that her equality advocacy work during this time played a direct and significant role in ending gender discrimination in no few fields of law, as well as in tapping into the Fourteenth Amendment granting equal rights protection to African Americans, so as to seek its application to gender discrimination as well. Indeed, she drafted the brief for the historic Reed v Reed case argued before the Supreme Court, basing it on the applicability of the Equal Protection Clause of the Fourteenth Amendment to women, as well as to blacks.

Legal scholars and civil rights advocates tend to agree that RBG’s work at the ACLU should be credited with making major legal inroads for women on the basis of the Fourteenth Amendment to the US Constitution and that her repeated victories largely discouraged legislators from continuing to treat women differently than men under the law. This has prompted many, including her conservative friend and fellow justice, Antonin Scalia, to compare her step by step, precedent by precedent building of women’s constitutional equality with how the country’s first black Supreme Court justice, Thurgood Marshall, built the case of African American equality. Said Scalia, "She became the leading (and very successful) litigator on behalf of women's rights—the Thurgood Marshall of that cause, so to speak." Linda Hirschman, an attorney/writer and the author of Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World, calls Ginsburg “quite simply the most important woman lawyer in the history of the Republic.”

And she, in essence, maintained that incisive attorney’s view in her thirteen years as a federal judge and her nearly three decades as a Supreme Court Justice. Instead of switching hats and distancing herself from the lawyerly view of her clients’ needs and rights, she merely switched clients, and her new client was “we the people.” This was probably because her interpretations were based more on what was legitimate than what was “legal” and she wasn’t afraid to shake discriminatory laws to their illegitimately vested foundations and seek to force them to conform to the true spirit and letter of the Constitution.

RBG with Sandra Day O'Connor

Outstanding lawyer, researcher, teacher and judge, she was, without a doubt, a remarkable jurist. But she was also, first and foremost, a small-d democrat, who, nevertheless, took a judicious view of democracy and realized that it was, as the old saying goes, “the worst form of government, except all the others.” As such, she knew its weaknesses: namely, that if minority rights weren’t protected under law, it would be easy for the majority to disregard them in the name of democratic majority rule, and that majorities might well seek to influence the electoral process in order to ensure their permanence in power. Through her advocacy, public legal practice and decades on the bench, RBG worked tirelessly to ensure that constitutional interpretation encompassed an ever broader swath of equality.

A landmark Supreme Court case that typifies Justice Ginsburg’s influence in broadening the meaning of discrimination in the United States is the 1996 United States v Virginia. Written by Ginsburg and passed in a seven to one decision, the overwhelming Supreme Court majority struck down the Virginia Military Institute’s traditional male-only admissions rule. The only dissenting justice was William Rehnquist, while Justice Clarence Thomas recused himself because his son was enrolled in the VMI at that time. In drafting the decision, RBG stated that the institute had failed to demonstrate “exceedingly persuasive justification” for banning women from admission. The ban was, then, unconstitutional, since it violated the Equal Protection Clause of the Fourteenth Amendment.

In seeking to get around the equality requirement, the State of Virginia offered the same sort of “separate but equal” ploy so often utilized to perpetuate racial discrimination, but this time applying it to gender. In short, it offered a program entitled the Virginia Women's Institute for Leadership (VWIL), to be provided through the nearby liberal arts school, Mary Baldwin College.

But Justice Ginsburg’s majority decision argued that the VWIL would not provide the same rigorous military training that men received at the VMI, nor would it boast the same curriculum, faculty or ultimate career opportunities to women as to men, including those arising from the contacts and reputation implicit in attending the all-male academy. Again drawing the parallel between racism and sexism, Ginsburg referred to Sweatt v Painter, a 1950 decision in which the Court had ruled that it was unconstitutional to segregate law schools in Texas because an alternative all-black law school that had been set up failed to provide the same benefits to its students that the prestigious and long-standing white school did. According to the Ginsburg majority decision, "The VWIL program is a pale shadow of VMI in terms of the range of curricular choices and faculty stature, funding, prestige, alumni support and influence."

She went on to write, “Generalizations about ‘the way women are,’ estimates of what is appropriate for most women, no longer justify denying opportunities to women whose talent and capacity place them outside the average description.” What she was subtly yet radically telling the society of those times, legal scholars say, was that if there is any woman who can meet a state’s standard for any sort of opportunity, then no woman can be denied access to that opportunity.

Perhaps the prime role of the Supreme Court should be protection of “we the people” against the frailties of democracy and the overarching power of both federal and state government. Ginsburg had a profound understanding of this responsibility. And a perusal of her advocacy, her appellate court performance and her victories and dissents in her many years on the Supreme Court make clear the debt she is owed not only by women, but also by racial and ethnic minorities, the LGBT community, political dissidents and people accused of alleged crimes—in other words, every social group or individual whose civil and human rights have too often been ignored by those representing the majority in a supposedly democratic society. In short, this diminutive woman with her enormous intellect and heart was no less than the epitome of justice, equality and the rule of law.

In a nation in which so many women owe protection of their basic rights to the persistent commitment to equality of this iconic Supreme Court justice, it is ironic that another woman has been picked by the Senate majority—one of those domineering majorities whose nefarious influence Justice Ginsburg spent her life seeking to limit—to try and  ensure that some of the results of victories fought and won by RBG and other staunch advocates of true democracy are eventually dismantled.

There is no way to know precisely how Amy Coney Barrett will perform as a Supreme Court Justice, but it seems clear that she has an almost diametrically opposing view to that of Ruth Bader Ginsburg when it comes to the tenets of democracy and, in particular, the basic rights of American women, including their reproductive rights. If members of the far-right who proposed her are successful in their hopes that she will do their bidding, it will be a slap in the face to the legacy of “the notorious RGB” and sadly, American democracy will be the worse for it.