THE TRUMP CULT – MORE OF THE SAME…ONLY WORSE

 Donald Trump’s new term in power is beginning just the way the other one ended, with utter disrespect for the law, for the justice system, for law enforcement, for every single person who isn’t a hundred percent behind the Führer or who doesn’t fall within the narrow characteristics of the MAGA ideal, and with open contempt for compromise and unity, and for the Constitution of the United States.  It has begun, literally, “with a vengeance” and with a burning desire to further divide Americans rather than bringing them together.

He wasn’t in office more than a few hours before he overrode investigators, the federal courts system and juries that had worked tirelessly to bring to justice insurrectionists who had raided the Capitol Building on January Sixth of 2021, doing hundreds of thousands of dollars in damage, injuring one hundred forty police officers, some very seriously, and killing another, while threatening with bodily harm or murder, members of Congress and Trump’s own vice president, Mike Pence. Fifteen hundred rioters in total, some still in the process of trial and conviction, and hundreds of others already serving or having served sentences. He also commuted the sentences of six dangerous urban terrorist leaders who conspired to mount the insurrection—among them were Stewart Rhodes, founder and leader of the so-called Oath Keepers and Enrique Tario, leader of the self-styled Proud Boys gang, perhaps the most militant of the shock-force groups supporting Trump.

The Proud Boys are a neo-fascist ad hoc organization that Tario describes as “Western chauvinists”.  It is an all-male, white-supremacist, domestic terrorist gang. They emerged on the national stage as an active terrorist counterforce during violent race riots following the public suffocation-torture and  murder of Minnesota African American George Floyd by veteran white Minneapolis police officer Derek Chauvin, in May of 2020, the last year of Trump’s first term.

When, during the 2020 presidential debate, moderator Chris Wallace asked Trump if he would denounce white-supremacy, the then-president hedged. When his opponent, Joe Biden, mentioned the Proud Boys, Wallace asked what Trump had to say to that group. Chillingly, Trump answered that he would tell them to “Stand back, and stand by.”

After he lost the election later that year and, after failing to legitimize his false claim that the election had been “stolen”, the meaning of that ominous message to the Proud Boys became clear, as they, in the style of Mussolini’s Blackshirts of old, led other extremists in mounting the January Sixth Insurrection, which will go down in history as one of the darkest days in American democracy. Despite the fact that, in the run-up to the 2024 presidential election Trump surrogates including Vice President J.D. Vance had assured the public that violent criminals involved in the J-6 riots would not be pardoned, Trump’s sweeping decree has fully pardoned or commuted the sentences of virtually every insurrectionist involved in those tragic events, and has stymied the trials of hundreds of others still under investigation.

Trump continues to tout the insurrectionists and terrorist gangs that took part in the extreme violence at the Capitol as “patriots”, and as “hostages” of the Biden administration. Underlying those patently false descriptions, however, is an effort by Trump to obfuscate his own responsibility for the insurrection. Clearly, there were well-documented federal criminal charges against him for inciting the January Sixth Insurrection, prior to his winning the 2024 election, which rendered his prosecution moot. By casting the insurrectionists as “patriots”, perpetuating the lie that the 2020 election was “stolen”, and pardoning every single person involved, as if the whole thing had merely been cooked up by the Biden administration, Trump may well be offering up a hail Mary that charges against him will simply go away completely once he is no longer president.

In his first hours in office, President Trump has also come with promises—more like blood oaths, actually—to “go after” all of those who did their jobs and served their country, the rule of law and democracy in seeking to prosecute him, to the full extent of the law, for the provable and proven misdeeds that he perpetrated during his first administration (which, in any country or party that cared one iota about democracy and the rule of law, should have been his last). And he makes no secret of the fact that he will weaponize the Justice Department to do it, while falsely claiming that it was weaponized against him and his cronies.

The newly installed president has been chomping at the bit for four years. Not to put forward a formula to make the US a better, kinder, more inclusive place for all Americans, but rather, to exact revenge for his own personal grievances, and to undo every good and humanitarian measure enacted by all administrations but his own going back a quarter of a century. All the way back, indeed, to the Bush junior era, in which that administration introduced plans for legal status and a path to citizenship for twelve million undocumented immigrants, as well as being at least half-heartedly empathic toward the LGBTQ community. As Tim Marshall of Seattle Pride puts it, “Thanks George W. Bush, for being the least regressive GOP politician of the ‘00s. We’ll remember you like a pair of ultra-low-rise jeans: a pain to live with but impossible to forget.”

Regarding this point, clearly, during his last administration, Trump targeted women’s reproductive rights by packing the Supreme Court with radical far-right justices who overturned Roe v Wade, a half-century-old landmark precedent that protected women’s rights to make decisions about their own bodies. New restrictions on women’s rights are expected as the far-right’s Project 2025 starts meshing with executive action. But this time, Trump also seems bent of annulling all of the progress the LBGTQ community has made in attaining equal rights over the course of the last quarter-century. Trump pointedly announced during his whining, bullying, divisive and self-congratulatory inaugural address that “As of today, it will henceforth be the official policy of the United States government that there are only two genders: male and female.”  Note, that he said “of the US government,” not of his administration, presuming, then, to speak for all three branches, regardless of opinions and/or legislation to the contrary. Spoken, in other words, like the despot he plans to be.

He hours later backed this up by signing a sweeping executive order recognizing only two sexes, male and female, and directing federal agencies to cease promotion of the concept of gender transition. Trump is actively promoting discrimination against the LGBTQ community by vowing to his radically right-wing base that he will rid the US of what he calls “transgender insanity”. This is an only thinly veiled invitation to his radicalized followers to marginalize LGBTQ people across American society.  

Indeed, Trump’s immediate authoritarianism has extended beyond the two-gender rule to also do away with all measures currently promoting diversity, equity and inclusion, measures which, until now, have been a bastion of fairness and humanitarianism hard fought and earned over long years since the Civil Rights Era.  His orders regarding the civil rights of these minority sectors of society include giving departments and agencies of the Executive Branch an ultimatum to eliminate all diversity, equity and inclusion programs within sixty days, as of his first day in office.

This action includes firing all chief diversity officers and scrapping all equity action plans. He is also ordering a veritable witch-hunt requiring all departments and agencies to give the  White House Office of Management and Budget a full accounting of any and all previous diversity, equity and inclusion (DEI) efforts, including the listing of names of DEI grant recipients and DEI government contractors. In short, in the mean and vindictive second autocracy of Donald Trump, diversity, equity and inclusion will have no place. Indeed, they will be areas targeted for persecution, with the Trump administration already encouraging government workers to report any attempt to keep some form of DEI alive in their bureaus.

Other rights violations are in the offing.

For instance, Trump plans—and has issued an executive order to prove it—to do away with birthright citizenship. Birthright citizenship (fittingly in this immigrant nation, in which most of use descended, not from indigenous peoples, but from boats) is guaranteed  under the 14th Amendment of the Constitution. In other words, anyone born on US soil is automatically an American.  Trump’s  order arbitrarily asserts that a child born in the US is not a citizen if  the mother doesn’t have legal immigration status or “is in the country legally but only temporarily,” and if the father is not a US citizen or lawful permanent resident. The order further forbids US agencies from issuing any document recognizing such a child as a citizen or from accepting any state document recognizing such citizenship.

In other words, Trump is rendering children across an entire segment of US society virtually stateless, and robbing native citizens of their birthright. This is already under challenge in the federal court system.

Oh, and, remember George W. Bush’s “war on terror”, which gave us the invasive Patriot Act, with all of its “state of siege”-style tweaking of the Bill of Rights, the introduction of torture under the euphemism of “enhanced interrogation”, and the holding of certain types of prisoners, without charges and at the disposal of the Executive Branch—all things that administration had in common with every dictatorship I’ve ever covered as a journalist? Well, Trump is now going that one better by planning to use the military in domestic policing operations, with the excuse that illegal immigration is “a matter of national security" and "an invasion,” that entitles him,  as commander-in-chief, to call out “his” troops.

Buenos Aires, March 1976

Never mind that this is a blatant violation of the Posse Comitatus Act of 1878, which restricts use of military personnel in domestic law enforcement actions. As I pored over Trump’s barrage of royal decrees, I was recalling the night of the military coup in Argentina in 1976. The Junta issued a series of repressive decrees to let the country know that there was a new sheriff in town and that the constitutional rulebook had just been heaved into the dumpster.

Trump has made it clear that churches and schools will no longer be considered off-limits in plans for government persecution of the undocumented. This brought back memories of my leaving the newspaper where I worked late on that March night in ’76. There were Army trucks everywhere, and soldiers armed with carbines, sidearms, shotguns and light machine guns were checking papers and loading people onto the trucks for transport. Now too, I imagine churches and schools in the US surrounded by military convoys and people being dragged away to concentration camps.

Buenos Aires, March 1976

Oh yes, did I forget to mention that Trump has also enunciated plans to use military bases to create concentration camps for undocumented migrants? Yes, he’s calling them “migrant camps”, but make no mistake, the idea is to create concentration camps within military jurisdictions. And don’t kid yourself, once the genie is out of the bottle in terms of authoritarian designs, there’s no putting it back. Nor is there any reason to believe that, in a state of virtual lawlessness, other sectors of American society could not also find themselves in an autocrat’s sights. There is a reason, in a healthy democracy, that the role of the military is external, not domestic, and a reason too that soldiers and officers alike swear to uphold and defend the Constitution, not a king or dictator.

In short, I’ve seen (lived) this movie before, elsewhere in the world, and know how it ends. And it doesn’t end well. This is not the American representative democracy that we grew up with. This is a populist authoritarian regime, headed up by a megalomaniacal demagogue, whose only goal is to be the most powerful man on earth.

 

THE LONG TAIL OF THE DECISION TO REVERSE ROE VERSUS WADE

 If there was one thing we learned in the first stage of the Trump Era, it was that no matter how bad things got, they could only get worse. We were seeing things happen that would have been unthinkable previously, and none of them were good. They all tended toward a concerted assault on freedom and democracy. We even witnessed something that we, and most other people around the world, would have thought an utter impossibility in the United States of America: a serious attempt to foster a violent overthrow of the prevailing order and to install an autocratic, single-party regime in power.

The other thing we learned in the first stage of the Trump Era was that there is a second stage. Although the majority of Americans breathed a collective sigh of relief when the democratic transfer of power actually took place—after being unable to believe our own eyes and ears when it seemed that it wouldn’t—that relief has proven a false friend. There has been no return to normalcy, no prosecution of the real perpetrators of the almost coup, no vindication of those who literally risked everything to re-establish democratic order. On the contrary, the offending parties are bolder than ever, are defying legal processes and are counting on again taking over power, while changing voting laws, districts and procedures (and, in the process, violating hard-won minority voting rights) in any way they can to ensure that they do.

Perhaps the biggest sigh of relief that true democrats breathed was when, in the aftermath of the 2020 election, it became clear that, finding no accomplices for his patently false accusations of election fraud amid more than sixty federal judges, a number of whom he had appointed to the court, a defeated but implacable Donald Trump planned to use the Supreme Court—which he had packed with three ultra-conservative justices—to seek to legitimize his phony fraud claims. Our relief came when none of the Trump appointees agreed to hear voter fraud cases brought to the Court by Trump surrogates including, prominently, attorney Sidney Powell. The only dissenting opinion in the Court regarding hearing any of the cases that Trump World sought to bring before it was that of Associate Justice Clarence Thomas. Thomas’s wife Ginni has since been outed as a diehard Trump supporter who may well have played an important role in propagating the so-called Big Lie and in other efforts to overturn the legitimate presidential election results.

Once again, however, we were falsely lulled into believing that the checks and balances were working, and that, even when the Republican side of Congress was packed with coup-mongers, the Supreme Court would still prevail in protecting the inherent rights of American citizens against violation by a far-right autocratic conspiracy. Nevertheless, if those attempts at undermining the election rights of Americans were too blatant for the Court to abide, we are now seeing that the far-right onslaught is continuing in not much subtler ways.

Kavanaugh, Coney Barrett, Thomas and Alito

The first open manifestation of this agenda took shape this past week when the conservative majority of justices struck down a half-century old SCOTUS decision (Roe v Wade) that basically determined that it was unconstitutional to deny women the right to an abortion, and thus, the right to the pursuit of their own destiny and to exercise control over their own bodies. Among the five assenting opinions were those of the three Trump appointees. While this may come as no surprise, it is worth noting—as have no few liberal members of Congress and even a few conservatives—that during their congressional confirmation hearings, all three testified under oath that they viewed Roe v Wade as a “settled precedent” and thus, the law of the land.

In constitutional law, settled precedents are, as the name suggests, questions of law that have been settled once and for all. In the case of Roe v Wade, what that meant—should anyone be in doubt—was that, in the US, abortion was a constitutionally guaranteed women’s right, a fact that coincides with international human rights standards. Authoritative interpretations of international human rights law have long established that denying women and girls access to abortion is a form of discrimination and jeopardizes an entire range of human rights. United Nations human rights treaty bodies regularly call on governments to decriminalize abortion in all cases and to ensure access to safe, legal abortion in at least certain circumstances—rape, incest, pregnancy in minors and pregnancies that jeopardize the health and welfare of the potential mother.

No matter how you look at it, the action taken to strike down a substantive legal precedent that has empowered and protected a woman’s right to autonomy over her life and body is invasive and difficult to justify. In the face of opposing opinions that are more dogma-based than practical, the Supreme Court could have just as easily allowed the settled precedent to stand as to reverse it. That is to say, the Court has gone out of its way to overturn a decision supporting a human and civil right based largely on the subjective beliefs of a minority portion of society.

Indeed, nationwide polls have shown that more than eighty percent of Americans believe that abortion should be legal at least under certain circumstances—incest, rape, etc. And the vast majority believe that it is a right that the state should protect rather than interfere in.

Polls also indicate that only a little more than a third of the country wanted to see Roe v Wade overturned—not surprisingly that proportion is about equal to the segment of society that currently supports Trump World and the Big Lie. Coincidence? Probably not. Meanwhile, a full two-thirds of those polled have consistently said that Roe v Wade should stand.

More revealing still was one poll that indicated that more than sixty percent of Republican women surveyed believed that abortion was a matter between a woman and her doctor in which government should have no role. So, on whose behalf was the Court deciding to strip women of a right guaranteed by a long-settled precedent? The answer is, a subjective, non-secular minority—likely made up to a much larger extent by men than by women (who are now more vulnerable to discrimination than before)—that is seeking to impose its self-righteous authoritarian principles on the whole of the population in detriment to majoritarian democratic society.

There is a ripple effect in breaking with long-held principles. If one person’s rights can be legally violated, then all people’s rights are placed at risk. So the Court’s decision has also debilitated the judicial security of other sectors of American society. While Justice Alito, who wrote the conservative majority opinion, hastens to say that "we emphasize that our decision concerns the constitutional right to abortion and no other right,” and that, “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” this would appear to be a personal opinion or wishful thinking with no real legal foot to stand on.

Thomas

Indeed, in a separate concurrence that he wrote to accompany his sign-off on the quashing of Roe v Wade, Justice Thomas gave his own far-right view, saying “I write separately to emphasize a second, more fundamental reason why there is no abortion guarantee lurking in the Due Process Clause. As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution.’” According to Thomas, substantive due process (i.e., rights granted by court decision rather than directly by the Constitution) has to do with the Constitution’s guarantee of due process before someone is denied the right to life, liberty or property. But he opines that it has no bearing on what those rights actually encompass. Thomas says that since the Due Process Clause “does not secure any substantive rights,” including a right to abortion, then the Supreme Court should “reconsider all of this Court’s substantive due process precedents.”

Other writing by Thomas on constitutional law suggests that he favors an enormous departure from how the SCOTUS has traditionally approached the right to due process—a legal tradition that goes back one hundred fifty years. In keeping with that historical approach, the Court had interpreted the basic rights granted by the Fifth and Fourteenth Amendments to protect substantive rights granted by legal precedent. In that way, the US legal system has granted an ever-growing list of liberties that we citizens enjoy, rather than seeking interpretations of the Constitution that strip citizens of legally acquired rights, as the reversal of Roe v Wade does.

Now that the Court has set an entirely new precedent for removing rather than protecting rights granted by law, Thomas has made it clear that he wants to see all such due process rulings reviewed. And he has specifically—despite Alito’s assurances that this is a one-shot deal—indicated that such a review should first focus on Griswold v Connecticut, 1965 (governing the general right to privacy and the specific right of married couples to use contraception), Lawrence v Texas, 2003 (decriminalizing intimate relations between persons of the same sex), and Obergefell v Hodges, 2015 (legalizing same-sex marriage).

Breyer, Sotomayor and Kagan

If Obergefell were thrown out, perhaps the most significant human right acquired in the twenty-first century (the right to love whom you wish) would be torn from the law books, which could in turn re-criminalize same-sex relations altogether (Lawrence v Texas). The Court could further invade American bedrooms by banning such preventive contraception methods as IUDs and morning-after pills. It’s not hard to imagine further progressions to anything that “interrupts pregnancy”, such as vasectomy for males or tubal ligation for females.

In their dissenting arguments, Justices Breyer, Sotomayor and Kagan addressed this issue head-on, saying, "Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other…" They added, "We fervently hope that does not happen because of today's decision…But we cannot understand how anyone can be confident that today's opinion will be the last of its kind." 

The departure from a healthy legal tradition that this decision signifies appears to also have opened a veritable schism in the Court, one that Chief Justice Roberts’ usually moderating influence has been unable to span. Indeed, last week’s decision seems to signal that Roberts has lost control of the court, with Justice Thomas riding on the cusp of an extreme right turn in which his influence as a senior justice is added to the willing cooperation of the three Trump appointees (Kavanaugh, Coney Barrett and Gorsuch) and to the acquiescence of Alito.

Chief Justice John Roberts

In the controversial majority opinion, Alito wrote that abortion was not mentioned as a right in the Constitution as such, nor was the right to privacy. Incredibly, this last has not been stressed by the media, but the idea, according to the Court, that we have no constitutional or precedential right to privacy should come as a shock to Americans as a whole and should be a source of genuine outrage.

In their minority opinion, Breyer, Sotomayor and Kagan noted that since the framers of the Constitution were all men, “perhaps (it is) not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women's liberty…" More specifically, the dissenting justices stated: "When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship."

The dissenting opinion adds that the court's ruling discards a balance set by past abortion decisions. "It says that from the very moment of fertilization, a woman has no rights to speak of." 

It would be difficult not to characterize last week’s Supreme Court decision as blatantly political rather than judicial. There are clear indicators that support this. First and foremost is the fact that this sort of decision is unprecedented in the highest court in the land. Although extremely rare, it’s not that the Supreme Court has never reversed a former decision. But the fact is that when this has happened in the past, it has consistently been in the interest of granting ever-greater freedom to Americans and ever-growing autonomy in the face of authoritarian advances by government.

This is a glaring exception to that rule. This is the power of the court being used to suppress a right and freedom that citizens had already won. It’s clearly a far-right revisionist attempt to turn back the hands of time to a more repressive era and to undo one of the major victories of the battle for broader women’s rights. The question now is, which other legally acquired rights will follow as the “evangelical” far-right continues its implacable assault on freedom and democracy.         

 

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.

 

THE CASE FOR A JOHN WILKES BOOTH MONUMENT

The long-standing controversy over glorification of the Confederacy and its part in the War Between the States that ensued as a result of its declaration of secession from the Union has boiled over under the Donald Trump presidency as a result of the administration’s arguments—and redoubled arguments—favoring monuments to the leading proponents of slavery and the continued use of the Confederate stars and bars flag as an acceptable symbol of pride among the staunchest supporters in his base. I’ve tended to oppose that position as divisive and improper at a time when we should be moving toward less animosity among Americans rather than more, and toward genuine racial equality and justice in a country that used to pride itself on being the “greatest democracy on earth.”

John Wilkes Booth equestrian model

As growing calls have come for the removal of all symbols that continue to glorify the cause of slavery, which led to a tragic conflict in which hundreds of thousands of Americans were slaughtered, I, like all thoughtful citizens, have had to weigh indoctrination against genuine history and challenge learned ideas regarding the validity of any historical interpretation that in any way praises or immortalizes the leaders and symbols of a nefarious movement to continue to enslave an entire race of people, even at the cost of the dissolution of the United States of America.

I’ve concluded and argued repeatedly that we have to stop glorifying the Confederacy, which was a seditious anti-American movement that sought to overthrow the United States and form a new country whose basic founding tenet was the enslavement of Africans and African Americans. I’ve posited that officers of the US Army who rose up against their commander-in-chief and formed a new enemy army that engaged in civil war against the US were traitors and deserved execution rather than glory.

I have also proposed that requiring the African American soldiers and officers who today wear the uniform of their country to serve daily on military bases named after generals who enslaved their ancestors and fought to keep them enslaved forever is a gross injustice. And that forcing black children to play in parks named after—and in the shadows of monuments to—the very leaders of a seditious and illicit Confederate association that, if it had had its way, would still be enslaving them today is perverse. I’ve also expressed my conclusion that flying the flag that symbolizes the Confederacy in the United States is tantamount to flying the swastika in Poland.

However, some people on the social media continue to take me to task for being a vile revisionist who wants to re-write history and cut out the parts I don't like. To them, I argue that they are mistaken. I have no desire to “sanitize history.” On the contrary, I feel that it is sanitized enough already. I just want history to be history, rather than a fairy-tale designed to exculpate the white majority and to whitewash (pun intended) a part of our history that should be a source of abject and unmitigated national shame and that seeks to make it seem as if there were "some very fine people" on both sides of the conflict, which, perhaps, “wasn't about slavery after all.”

John Wilkes Booth fountain model

But okay. I've always been willing to keep an open mind in the course of debate. And maybe, for the sake of argument, I should try admitting that my critics are right. Maybe we should just “get a life”, stop looking for controversy at every turn and take a very kumbaya attitude toward the Confederacy, its symbols and its heroes. Maybe we should continue to honor them for fighting for what they believed in (albeit slavery), even though it ripped the country apart and left us with a legacy of racial hatred and violence that continues up to the present day.

In fact, maybe like President Trump, we need to double down on this kind of  acquiescence to racism and the causes of the long-defunct Confederacy. So I have an egalitarian proposal to make. And if there are some among you who have the gumption, I think it might be a good idea to create a petition to try and get the president involved. I think you might be pleasantly surprised if you do, since it’s not unreasonable (nothing is anymore) to think that he might act on it.

So here's the idea: How about, in order to honor the sensibilities of the president, his entourage and his base, if we build a monument to a truly unsung hero of the Confederacy? More concretely, let's petition President Trump to use taxpayer dollars to give credit where credit is due and commission a large equestrian statue or fountain as a monument to John Wilkes Booth, the pro-slavery gentleman who shot and killed President Abraham Lincoln—certainly one of the most important events of the entire Civil War era.

And in order to ensure fairness to the Confederacy, we (the people) should suggest that this work of historical art and significance be placed at the foot of the steps to the Lincoln Memorial. Fair is fair, and Booth was, after all, a real hero to many of the people of the Confederate South who had just been cruelly defeated by the Union under Lincoln, who, through the Emancipation Proclamation brought an end to the golden age of the slave-holding South.

Any takers?

SOME THINGS NEVER SEEM TO CHANGE

In 1970, I was an Army Specialist 4 posted to the 72nd Army Band at Ft. MacArthur in Los Angeles. We played a lot of “public relations” concerts and parades. One, while I was there, was in the troubled neighborhood of Watts. I can’t recall the occasion, but it was a military parade.

Watts 1965

Midway through our march across town, we had to break ranks and it was every man for himself as we were pelted with cans, bottles and anything else angry protesters could heave at us. I was told the protest was over the disproportionate number of African Americans being sent to Vietnam. With the help of LA County law enforcement, we were able to push back until we could reach our bus and leave.

Although I considered myself socially aware, it was the first time the vast difference between my life and that of minorities in inner city neighborhoods was driven home. Our first sergeant, who was out front, was African American and had grown up in Compton. So was our second-ranking NCO, who was from a dirt-poor childhood in Alabama. So were several other members of the band. But what the protesters saw were our uniforms, which represented the government that didn't represent them.

Not personal, just the uniform

My friend Fermin, who before entering the Army had been a member of the Black Panthers, patiently explained it to me. It wasn't personal. I was a symbol. And it didn't matter how non-racist or liberal I might be, or how much I strived to understand and empathize with the black cause. To the rioters, none of that mattered since they faced daily discrimination simply because of the color of their skin. It was something, he explained, that no matter home empathic I might be, I could never fully understand or “own” because I was white.

And then there was the context. Five years earlier Watts had been the scene of The Watts riots, sometimes called the Watts Rebellion. They were sparked, as the current ones rocking the US, by police abuse of minority citizens' civil and human rights. They broke out after police physically assaulted a pregnant, black motorist, who happened to also be a parolee, after pulling her over for reckless driving. When community members in Watts publicly decried the incident, six days of civil unrest ensued.

Minneapolis 2020

Nearly four thousand members of the California Army National Guard—hence, the hatred for Army green—helped suppress the disturbance, which resulted in thirty-four deaths and over forty million dollars worth of property damage. It was the city's worst unrest until the Rodney King riots—for the exact same reason—twenty-seven years later.

And still today, as US cities are again in flames over the brutal police murder of George Floyd—nothing ever seems to change. On the contrary, over the course of the last three and a half years, the situation has been vastly exacerbated by a federal administration that is openly racist and blatantly disrespectful of civil and human rights.