RBG’s Big Mistake

‘What has become of me could happen only in America,’ Ruth Bader Ginsburg said in her confirmation hearing before the United States Senate in 1993. She meant to praise America. The descendant of Jewish émigrés, she was about to become only the second female justice to join the US Supreme Court. But today the statement reads like an indictment: what became of her thirty years later could only happen in America too.

Justices to the Supreme Court are nominated by the president and appointed, in accordance with Article II of the constitution, after the ‘advice and consent of the Senate’. When Justice Antonin Scalia died in February 2016, Barack Obama nominated Merrick Garland for the seat, but the Senate declined to exercise its power of advice and consent. The nomination should be made, they argued, by whoever won the presidential election later that year. Republican members of the Senate Judiciary Committee said that their decision was ‘based on constitutional principle and born of a necessity to protect the will of the American people’.

That was good politics: characterising the election in terms of the opportunity to shape the Supreme Court allowed the Republicans to win over Americans who might otherwise have been reluctant to vote for Donald Trump in the 2016 election. In one poll, 82 per cent of Americans said that the Supreme Court had been an important factor in their decision on how to vote; 81 per cent of white evangelical Christians voted for Trump, presumably at least in part because of a hope that Trump would nominate justices who would overturn Roe v. Wade, the court’s decision guaranteeing (at least in theory) women’s right to abortion.

The gambit paid off. Trump filled Scalia’s seat with Justice Neil Gorsuch. Soon after, Justice Anthony Kennedy retired. At 81, Kennedy was older than a Supreme Court judge should be; but he wasn’t ill (and is still alive). Nevertheless, he decided that President Trump and the Republican Senate were the ones he wanted to nominate and confirm his successor. This should have surprised no one: Kennedy was a Reagan appointee, and his intermittent socially liberal decisions (for example, recognising a right to same-sex marriage) must be weighed against a uniformly appalling record on economic issues. He upheld employers’ rights to force employees to litigate their disputes by arbitration, a process that is often prohibitively expensive or otherwise inaccessible. (The Canadian Supreme Court has recently held such agreements to be ‘unconscionable’ and thus unenforceable.) He was instrumental in the undoing of laws restricting campaign finance and one of his last votes was cast to undermine unions.

Justice Brett Kavanaugh took Kennedy’s seat after a particularly acrimonious confirmation session, in which the nominee faced credible allegations of sexual assault. The political centre of the court now shifted from Kennedy to the chief justice, John Roberts. Appointed by George W. Bush in 2005, Roberts was at one time a reliable Republican. He has been a bit less predictable of late, principally because, as chief justice, he is trying to ensure that the court retains a veneer of respectability. Roberts voted with the liberals in the challenge to Obama’s healthcare legislation (though it’s said he also wrote the dissent, which is unsigned), and again in a recent abortion case.

Ginsburg’s death means that the political centre of the court will now probably settle on Justice Gorsuch. He is a more interesting jurist than liberals at first admitted. He recently wrote the decision in Bostock v. Clayton County, in which the court held that employees are protected from discrimination on the grounds of sexual orientation or gender identity. (Liberals may find Gorsuch’s approach to law less appealing when the court is faced with affirmative action cases.) But no one doubts that Gorsuch is on the right wing of the Republican Party, and there are no signs of his moving to the left. A court governed by Gorsuch’s vote is one in which Democrats will (even if they can take, and then mobilise, the sclerotic Senate) find it difficult to get any substantial reforms on the economy or the climate passed into court-proof legislation.

Ginsburg died 46 days before November’s presidential election. The Senate majority leader, Mitch McConnell, almost immediately announced his intention to confirm a new justice. Just as immediately, he was accused of hypocrisy. Scalia died 269 days before the 2016 election and that, Republicans argued at the time, was too close to the election for it to be right to confirm a successor. What happened to the ‘constitutional principle’ invoked to block Garland’s appointment? There are various arguments. Ted Cruz claims that voters were drawn to Trump by his stance on the courts; Lindsey Graham invokes Democrats’ treatment of Kavanaugh at his confirmation hearing. These ‘arguments’ go nowhere. McConnell, though, pointed to the fact that the Senate in 2016 was ruled by ‘an opposite party’ to the president’s. The real principle here is power: whoever has control of the Senate decides whether its advice and consent will be given. The Republicans were in charge in 2016 and they are in charge now: they can exercise their power as they wish.

The Republicans’ actions are also rational. The US Supreme Court is a super-legislature. It has the power to determine which laws can and cannot be passed by the elected branch of government. The court is the reason children cannot be executed and abortion cannot be outlawed by individual states. The court also determines fundamental questions of electoral procedure. A series of decisions, the most famous of which is Citizens United v. Federal Election Commission, has removed most restrictions on the amount corporations and non-profit groups can spend on federal elections, and how much individuals can donate to political action committees. In the last presidential election, 0.5 per cent of Americans made donations larger than $200; that 0.5 per cent accounted for more than two-thirds of the money spent in the campaign. Given the importance of these issues, politicians will inevitably seek to influence the court’s composition: why would they act otherwise?

In 2011, Randall Kennedy, a Harvard law professor, wrote in the New Republic that Ginsburg and Justice Stephen Breyer should retire while Obama was in office. It is common for justices to retire when their successor can be nominated by a president of their choosing: as well as Anthony Kennedy, Justices Sandra Day O’Connor, Lewis Powell, Warren Burger, David Souter and John Paul Stevens all did so. For Ginsburg to stay on the court risked ‘disaster’, in Randall Kennedy’s view: ‘The female Thurgood Marshall will be replaced by a female Clarence Thomas.’ Marshall was the first black justice on the court, a liberal; bad health forced him to retire under George H.W. Bush, and he was replaced by Thomas, a conservative from the far right. The analogy was not unmotivated: in 1999, Ginsburg survived colon cancer; ten years later, she was diagnosed with pancreatic cancer. When Obama was re-elected in 2012, the Democrats controlled the Senate, so a Democratic appointee was all but assured safe passage. Ginsburg refused to go. She would continue, she insisted in 2013, ‘as long as I can do the job full steam’.

In Ginsburg’s final years on the court, a bizarre personality cult grew up around her. She became ‘the Notorious RBG’; she appeared on Stephen Colbert’s Late Show to promote a book about her workout regime; a documentary from 2018 promised an ‘intimate portrait of an unlikely rock star’. In a piece for Mother Jones, Stephanie Mencimer pulled no punches: ‘How cute will we find Ginsburg if she becomes incapacitated and Trump replaces her with someone like 46-year-old social conservative Amy Coney Barrett, who believes life begins at conception and doesn’t really believe the Supreme Court must uphold precedent like Roe v. Wade?’

Trump has indeed now selected Barrett as his nominee to replace Ginsburg. Should her nomin­ation be confirmed by the Senate, the Supreme Court will shift to the right, probably far to the right, and may remain there for a gen­eration. Ginsburg takes the lion’s share of the blame for this – though Breyer will split it with her if he doesn’t survive until the next Democratic president is elected. But it is wrong to dwell on individuals and not the institution: citizens’ rights and the state of a democracy should not depend on the health (or decisions) of a single person.

Liberals were critical of the Supreme Court’s powers in the first half of the 20th century, when the court was in the habit of striking down progressive legislation passed by Congress. But they have embraced the Supreme Court and its peculiar powers at least since Brown v. Board of Education in 1954, a decision thought (wrongly: legislation was required) to have ended racial segregation in American schools. The court delivered liberals some victories: legal aid was guaranteed to people charged with crimes, the scope of the death penalty was reduced, same-sex marriage was recognised and the right to abortion was given some level of protection. But there have been numerous losses, too, and the counterfactual – what would the law have been like if the Supreme Court did not have such powers? – is impossible to establish. The fundamental objection to the Supreme Court’s powers, though, is that no one concerned to establish a democratic state would bestow on nine judges, appointed for life at the whim of the pre­sident, powers to determine society’s governing norms.

Some progressives have begun to argue that the court’s problems can be fixed only if its powers are reduced. One possibility would be to introduce term limits for judges. This, though, wouldn’t limit their powers. Another suggestion is to change the voting rules on the court. Continental legal systems often require unanimity among the judges in all decisions. In the US, if the justices were unable to reach unanimous agreement, the lower court’s decision would be upheld. This already happens when an equal number of justices are in favour of and opposed to a ruling: the court can divide equally when (as now) there are only eight members on the court, or when a justice recuses him or herself. A unanimity rule would not deprive the court of all its powers: between 1946 and 2009, 41 per cent of decisions were unanimous. But it would mean that a single ideologue could exercise an outsized effect on individual decisions. Some scholars propose a super-majority requirement, permitting one or two dissenters. That deprives the lone ideologue of ransom power, but it is also a conservative measure, entrenching the court’s existing decisions; the more controversial may never be overturned.

The proposal heard most often is that justices be added to the court. When Franklin Roosevelt sought to pass progressive legislation during the Great Depression, the Supreme Court stymied his efforts by striking down key parts of the New Deal. In response, he resolved to appoint as many as six new justices. Roosevelt, for all his skills, was unable to get the measure through the Senate (though the court was chastened by his efforts). Pete Buttigieg revived the idea in his run for president, proposing an expansion from nine to 15 judges. There is no principled reason to settle on nine as the appropriate number of justices; the court initially had six, once had ten, and other Supreme Courts around the world often have more. But ‘packing’ the court, even if it were politically feasible, still doesn’t address the problem of how to limit its powers. That said, the political confrontation it would generate might cause the justices to reconsider their attitudes to those powers. That would be no bad thing.

25 September