Upon hearing the news that Justice Ruth Bader Ginsburg had passed away on September 18, I felt two things. The first, of course, was a profound sadness that her loved ones and the United States had lost such an important person. The second was uncertainty. Since she first joined the bench of the Supreme Court of the United States in 1993 — and even before — she served as a critical member of the judicial left. But, perhaps more importantly, her decisions were crucial to the expansion of rights to Americans previously marginalized by their country’s laws. With a battle over Ginsburg’s replacement on the horizon, the nation must reckon with the reality of how the loss of one justice has the potential to affect the liberties of so many.
Even before her appointment to the highest court in the land, the “notorious RBG” had made a name for herself as an advocate for legal equality between men and women. In 1971, Ginsburg authored a key brief influencing the all-male Supreme Court’s unanimous decision in Reed v. Reed, where it held for the first time that arbitrary discrimination based on gender was a violation of the Equal Protection Clause of the Fourteenth Amendment. Five years later, Ginsburg again authored a compelling brief in the case of Craig v. Boren, which challenged the constitutionality of an Oklahoma statute that prohibited the sale of certain alcoholic beverages to men under 21 but allowed women over the age of 18 to purchase the same. The Court’s decision in Craig v. Boren solidified that, in cases of gender discrimination, no matter the gender of the target, governments must be able to prove that it is necessary to “substantially further governmental objectives” — further entrenching gender equality in Constitutional doctrine. Once on the Supreme Court, Ginsburg continued advocating for gender equality, authoring a 1996 opinion that mandated that the Virginia Military Institute admit women, who had previously been denied the unique opportunities it offered.
Beyond her feminist approach, Ginsburg also emerged as a regular defender of voting rights, penning a dissenting opinion in Shelby County v. Holder in 2013. In her dissent, Ginsburg maintained that the Voting Rights Act of 1965 was both constitutional and necessary to the enforcement of the Fourteenth and Fifteenth Amendments. Just as she feared, the Court’s ultimate decision to dismantle numerous restrictions on districts with histories of discriminatory voting procedures was followed by a slew of discriminatory legislation in states that would have otherwise been prevented from enacting such changes to their electoral processes.
In Ginsburg’s final term, the left-leaning segment of the Court — including Ginsburg and Justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer — allied with Chief Justice John Roberts to deliver victories against LGBTQ discrimination in the workplace, defend the Deferred Action for Childhood Arrivals program, and overturn a Louisiana law that would have severely curtailed access to abortions in the state. In one of the last cases she heard, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, she was one of only two justices to dissent from a decision condoning further exceptions to the contraceptive mandate in the Affordable Care Act, writing a fiery opinion lambasting her colleagues’ decision for having entirely disregarded “countervailing rights and interests in its zeal to secure religious rights to the nth degree.” Ginsburg’s record, from her time as a lawyer to its conclusion, makes clear two things: first, Ginsburg understood the Constitution to be an egalitarian document; second, anyone who has looked to the Supreme Court to secure their rights has lost a vital ally.
This leaves us with the titular question — what happens now? As David Gergen, an eminent political commentator and advisor in multiple presidential administrations, puts it, the United States must prepare for a “titanic fight.” Prominent Senate Republicans, including Majority Leader Mitch McConnell (R-Ala.) and Sen. Lindsey Graham (R-S.C.), vehemently opposed President Barack Obama’s nomination of Merrick Garland at the end of his term and refused to grant him a hearing due to the proximity of the 2016 presidential election. Both McConnell and Graham have since committed a stunning act of hypocrisy by promising to consider any Trump nominee to fill Ginsburg’s vacant seat.
The consequences of a third Trump appointee on the Supreme Court could be enormous. Even if one takes for granted that Chief Justice Roberts’ sudden liberal streak will persist for subsequent terms, the bloc that consistently votes to limit LGBTQ rights and reproductive rights will still outnumber the faction that votes for their preservation and expansion. Accordingly, we ought to also ask ourselves how history has led us to a point where the death and replacement of a single justice on the Supreme Court could call into the question the rights of millions of Americans.
Louis Lusky, a 20th-century legal scholar and professor, might provide us with some answers. In a 1963 Buffalo Law Review article, Lusky examined how the stereotyping of minority groups — specifically African Americans — percolates from society into American institutions. He highlighted the 1955 Brown v. Board of Education decision, commonly referred to as Brown II, as an example of how the Supreme Court has also fallen prey to stereotyping. By simply mandating that schools be desegregated with “all deliberate speed,” rather than mandating an immediate remedy or any remedy for the plaintiffs in the case, the Supreme Court made it clear in Brown II that it was concerned with the rights of Black people as a race but not Black people as individuals. Essentially, in Lusky’s words, “that Negroes and not their white classmates should suffer the consequences of delay … was justified by the great benefit that the decision conferred on the Negro race as a whole.”
Interpreting the Supreme Court and its decisions through Lusky’s lens reveals that marginalized groups that earn rights through litigation can only access many rights insofar as discrimination against their entire demographic — not discrimination against individuals within this demographic— is seen as problematic. Thus, the means by which marginalized groups must secure their rights is through sweeping decisions that are inevitably controversial and are often imperiled by changes to the composition of the Supreme Court.
All this is to say that the loss of Justice Ginsburg from the Supreme Court is more than merely a moral or political loss: it represents a genuine threat to civil rights. Trump’s proposed replacement — Judge Amy Coney Barrett — has been openly critical of decisions bolstering reproductive rights, LGBTQ rights, and the Affordable Care Act, while questioning the longstanding common-law principle of respecting precedent. Now, those of us who have ever had our liberties turned into a legal question can only wait to see whether Senate Republicans challenge the cant of their leaders and consider their responsibility to all Americans, even those they scorn by their platform. As the country watches this new political battle unfold with bated breath, millions of Americans who look to the Supreme Court to preserve their rights must instead place their hopes upon Capitol Hill — perhaps in vain.
Image Credit: “Supreme Court of the United States” by Phil Roeder is licensed under CC BY 2.0
