STRAINING DEMOCRACY TO THE LIMIT

 

 The United States judiciary has emerged as the only one of the three branches of government to stand as the last line of defense against tyranny. While many observers have dubbed “a clown show” the blatant attempts of the Trump-led GOP to steal this past November’s election from the American people—while falsely claiming that the Democrats were doing the same—in terms of the assault on democracy that it has represented, the entire process has been serious as a heart attack.

Clearly, the Executive Branch in cahoots with the vast majority of Republican members of the Legislature have been complicit in repeated attempts to thwart the democratic process and scavenge power from wherever they could find it in order to suppress and overturn the results of voting that a heroically honest Trump-appointed member of the Department of Homeland Security described as the most secure election in US history. Even Trump-surrogate Attorney General William Barr, following initial attempts to do his boss’s bidding in seeking dirt with which to invalidate the election process, has had to admit that, in all honesty, there is no there-there—no widespread, systematic voter fraud, no rigged voting software, no “voting dead” or multiple ballots cast by single voters, no anything of import.

Obviously, in Trumpland, where The Big Lie is the sole prevailing policy of state, telling the truth cost the DHS’s Christopher Krebs his job and put the attorney general in the hot seat. But Krebs is now a hero among small-d democrats, and perhaps Barr can go home after all this without having entirely bled-out every last shred of his reputation on the sacrificial altar of Trumpism.

Trumpland, where telling the truth is heroism

Just before the weekend this past week the Supreme Court again put a stop to a bogus claim of election irregularities entered by team Trump, this time through the State of Texas, whose attorney general, Ken Paxton, allowed the Lone Star State to be used as a Trumpian shill by filing a baseless claim of unconstitutionality against election processes in four swing states: Georgia, Michigan, Pennsylvania and Wisconsin. It is, perhaps, worth noting that Attorney General Paxton is currently reported to be under FBI investigation for allegedly placing the power of his office at the service of a political donor. This report is what has been giving rise to speculation that he might have also placed himself at Trump’s disposal to whip up a last-ditch spurious case to bring before the Supreme Court so as to try and assure himself of a slot on the president’s good-bye pardon list. If so, it was a cheap vow he made to the president, since legal observers tended to agree from the outset that the Texas brief would never fly in the US Supreme Court, because Texas had no authority to question election laws in other states.

Barr...heading home

In its rejection of the Texas presentation, the Supreme Court refused to hear the case on the grounds that, “Texas has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections.” That was the extent of the Court’s brief unsigned opinion, which spoke louder with what it didn’t say than what it did, since the dismissal was brief, dry and definitive—devastatingly so, because it didn’t even permit the case to be filed, let alone heard. Only two justices, Clarence Thomas and Samuel Alito, questioned, not the substance but the form of the Court’s refusal to hear the case. They indicated that it was their understanding that the Supreme Court could not refuse to permit the filing of a complaint by one state against another on its docket, but added that if it had indeed been filed, they too would have voted to refuse to hear it on the grounds stated by the Court as a whole.

This was not, as you may know, the first time that the Supreme Court basically told Trump and his zany surrogates to go pound salt. The other filing was sponsored by Trump-or-bust Congressman Mike Kelly against his home state, the Commonwealth of Pennsylvania, for supposedly violating its own election laws. That time, earlier this month, the Court responded with a terse one-line refusal: “The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied.”

Whatever the headings placed on these two attempts at filing with the Supreme Court as a ruse to shove a stick into the spokes of presidential transition, a proper choice to title them would have been “Trump v America” or “Trump v Democracy”. No matter how much we may make light of Team Trump lawyer Rudy Giuliani’s dye-dripping meltdown, or the insane ravings of that legal team’s former member Sidney Powell about long-dead Venezuelan dictator Hugo Chávez’s having something to do with sabotaging the 2020 US elections, there is no way to stress enough how serious and tragic the administration’s multiple attempts to spuriously invalidate the final outcome—which could not have been clearer or more transparent—really are. Because, make no mistake, one state seeking to violate the states rights of four other states by attempting to dictate how they should run their elections, for the sole purpose of overturning free and fair voting results, in order to favor the defeated incumbent over the victorious challenger, couldn’t be more un-American. Nor could there be any more direct assault on democracy.

Rudy...meltdown

Texas (or at least its attorney general) was, quite obviously, acting as a surrogate for the forty-fifth president, whose wounded inner-child psyche can’t believe—privileged  enfant terrible that he has always fancied himself—that he could actually lose and is attempting to make the founding principles of American democracy pay the price for his self-righteous disappointment.

The only thing that could be worse than seeing the final deterioration of a mentally unstable (and I’m being kind here) US president is to see a significant number of other representatives of the American people indulging or, indeed, buying into a rogue leader’s madness. And that, sadly, tragically, devastatingly, is precisely what we are witnessing. As such, what we are also witnessing is, perhaps, the second worse threat to American democracy in the history of the United States.

Sidney...space cadet

This is not merely my own assessment, but that of journalist and historian Jon Meacham as well. Meacham, you may recall, is the author of the Pulitzer Prize-winning biography, American Lion, Andrew Jackson in the White House. He is also the historian whom the Bush family chose to write the authorized and definitive biography of George H.W. Bush, entitled Destiny and Power: The American Odyssey of George Herbert Walker Bush.

Some see Meacham as a conservative, others as a liberal. He himself has been quoted as saying, “I’m not really sure where the split is between liberal and conservative. I tend to write about people who you would think the right would be very interested in, but if I meet [readers] they’re probably on the left. Does that make sense? The Andrew Jackson book—you’d think that would be Republican, but if I walk into a bookstore somewhere, seventy percent of the crowd is going to be ‘NPR people’.”

Perhaps that’s because the definition of the right in America has suffered a quantum leap from the original meaning of “liberal democracy” toward the ever tighter embracing of authoritarian principles on the right. And old-time center-right conservatives like Meacham (indeed, like Dwight Eisenhower as well, I’m convinced) are now being seen more and more by the right as “dangerous leftists”.

Meacham...searching for "better angels"

Meacham’s most recent historical work is The Soul of America: The Battle for Our Better Angels. He published the book in 2018, but even then, he saw the writing on the wall. Donald Trump was becoming ever more toxic for American unity and, indeed, for American democracy. But in his historical writings, Meacham tends to be an optimist, and, above all, to believe in the inviolability of American principles. Hence the title, which refers to a quote by Abraham Lincoln at the time of the Civil War.

To wit: “We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory will swell when again touched, as surely they will be, by the better angels of our nature.”

In that book, Meacham posited, mid-way through the Trump presidency, that the climate of partisan fury we were witnessing was not new. He sought to show that what Abraham Lincoln called the “better angels of our nature” have repeatedly won the day, despite the horrors of the post-Civil War Reconstruction Era and because of the struggles and sacrifice of the earliest Suffragettes, the stubborn will of civil rights leaders like Martin Luther King and John Lewis, and the humanity of someone like Eleanor Roosevelt. In The Soul of America, he looks at how American democracy has survived—thanks to the general quality of its leadership and the patriotic spirit of its people—such turning points as the Civil War, the so-called Lost Cause, the backlash against immigrants during World War I, the resurgence of the Ku Klux Klan in the 1920s, the demagoguery of the far-right America First movement in the run-up to World War II, the lawless reigns of political bosses like Huey Long, and the witch-hunts led by Senator Joseph McCarthy during the Red Scare of the nineteen-forties and fifties. In a quote from that book, he says that while things may look gloomy, “The good news is that we have come through such darkness before,” as a result of Lincoln’s “better angels” finding a way to prevail.

But in recent statements, even an American optimist like Meacham is hardly sounding bullish. In a brief interview with CNN late-night host Don Lemon, he recently referred to the GOP as “a party dissociated from reality” as it does the bidding of an off-kilter president who is using its members to try and overturn the results of a free and fair election. He confirmed that what’s happening is unprecedented in American politics and a clear and present danger to democracy. The only comparable phenomenon he could offer was when Lincoln won the presidential election of 1860 and eleven states seceded from the Union to form the Confederacy.

According to Meacham, what was happening right now—a president and his party seeking to disenfranchise well over half the country and impose a virtually authoritarian regime—was not about two parties debating two opposing sides of an argument. Rather, he said, it was two parties “speaking two entirely different languages.” And Jon Meacham is not wrong. The vast majority of the Republican Party—which should, perhaps, considering the current reality, change its name to the “Trumpian Party”—is speaking the language of authoritarianism, while both large-D and small-d democrats are speaking the language of freedom, equality and democracy.

To believe that the president and his party are, by any stretch of the imagination, posing legitimate questions about the outcome of an election that is now over and decided—except for the formality of the Electoral College vote—is ludicrous. Anyone who still believes that this is anything but a mentally disturbed leader’s attempt to steal the election with the shameful aid of hundreds of GOP politicians is simply in denial.

Days before the election, iconic American intellectual and political observer Noam Chomsky described Trump to an interviewer as “a president who has said if he doesn’t like the outcome of an election, he’ll simply not leave office.” Professor Chomsky went on to say that this imminent potential threat to democracy had been “taken seriously enough that, for example, two high-level, highly respected, retired military officers—one of them very well known, Lieutenant Colonel John Nagl—actually went to the extent of writing an open letter to General Milley, the chairman of the Joint Chiefs of Staff, reminding him of his constitutional duties to send in the American military to remove the President from office if he refuses to leave.”

And clearly, as we now know, both Chomsky and the military were right to consider this contingency, when, having lost more than fifty court actions brought by Team Trump since the election in attempts to overturn the results, only one has been even remotely considered by the various judges to present any validity whatsoever. And yet, Trump and the vast majority of GOP politicians in Congress continue to actively seek to erode confidence in the validity of this election—one might argue to their own detriment in the case of GOP senators and representatives who were on the down-ballot in November and won, since if the ballots were invalid in Trump’s case, they were invalid in theirs as well. But we are living in an era of ruling party lies and magical thinking in which logic plays no part.

Most people are by now convinced that Joe Biden is the president-elect and that he will be sworn in as such next month. The rejection of Texas’s bid to get a Supreme Court hearing and hold up certification of the 2020 election is being seen as the failed last attempt—among myriad others—of the Trump regime to snatch the election out of the hands of American voters. But what do we do with the undeniable fact that not only an administration beholden to Trump, but also dozens upon dozens of elected senators and representatives of the people of the United States have willingly and knowingly been part of a plot to overturn the results of one of the most transparent elections in history? How do we deal with the fact that these politicians, who, if they could have found a way, would have willfully and knowingly undermined democracy and the Constitution of the United States simply to maintain their grip on power, will be remaining in office for at least the coming term with their anti-democratic and, dare I say, un-American ideology accompanying them?

On Monday the Electoral College will vote and, if representative democracy has survived in America, the tragicomedy of errors known as the Trump administration should be officially over. All electors except those from Nebraska and Maine, are bound by state law to cast their votes in accordance with the outcome of the presidential voting results in their states. This should, then, be a mere formality, and, in accordance with certified election results, Joe Biden should receive three-hundred six electoral votes, and Donald Trump two hundred thirty-two, giving President-elect Biden a comfortable win of seventy-four EC votes.

But in the last four years, we’ve become more than accustomed to shocking and unpleasant surprises—violations of American traditions and principles that most of us never would have believed were possible. So while there now seems to be little doubt that the democratic process will survive (thanks almost entirely to American Justice), only time will tell what other outrages we might have to endure from here until January 20, 2021, and beyond. Hopefully, in the new year, all of these machinations will only be like the memory of a four-year nightmare.   

 

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.