The Dissenter’s Hope
Ruth Bader Ginsburg’s legacy hangs in the balance. Here’s what comes next, and what we can do about it.
On Friday evening, Supreme Court Justice Ruth Bader Ginsburg succumbed to pancreatic cancer. What does her legacy teach us? What does the cruel politics of this historic moment mean for S.C.O.T.U.S. and the future of the country? And what can we do about it?
Speaking Truth to Power in Law
Justice Ginsburg was a giant of the Supreme Court and she was a woman of historic proportions. You’ve probably heard the word “trailblazer” a lot in the news, and that’s because it’s a good word to use. She had spent her entire career advancing the cause for women’s rights and gender equality in many different capacities. As a lawyer, she argued monumental cases before the Supreme Court; she served as a judge on the US Court of Appeals for the DC circuit; and, of course, she was an Associate Justice on the Supreme Court itself.
She spoke truth to power, even in her court issued-opinions and she, particularly in the last several years, became known for her dissents.
Dissent on SCOTUS
Dissenting opinions on the Supreme Court are important. Though it might seem kind of useless because the majority of the court has already decided on a given case, the value of dissent is exactly that- to speak truth to power. It’s so that even in some of the most egregious cases, where the court can error and its ruling, there’s voice given to dissenters for the historical record. Dissenting opinions are often cited later on if the court changes its position. We can think of really important and famous dissenting opinions such as Justice Benjamin Curtis’ dissenting opinion in the Dred Scott v. Sanford case where the majority determined that persons of African descent either, slave or free, were not US citizens.
As Justice Ginsburg said in an interview with NPR in 2002:
“Dissent speaks to a future age. It’s not simply to say ‘my colleagues are wrong, and I would do it this way,’ but the greatest dissents do become court opinions. And gradually over time, their views become the dominant view. So that’s the dissenters hope: that they are writing not for today, but for tomorrow.”
The Politics of This Historic Moment
Justice Ginsburg’s death is painful, but it is made heavier, tragically, by the cruel politics that now play out before us. The Republican Party is set to pursue filling the vacancy on the court, and there a number of ways things can go from here.
So here’s a quick list for you of reminders and possibilities, and what you can do about it.
A Political Opportunity for the President
Donald Trump will see this as a boon to his bleeding campaign. Politically speaking, he should. Trump has been losing support across virtually every demographic, even demographics that were critical to his win in 2016. If you’ve read my previous articles, than you already know about suburban voters. But he’s also lost his edge with voters over 65, non-college educated voters, and even some cracks in his evangelical support. But especially with those voters, a conservative, and specifically pro-life, nomination to the court could help him regain some of those losses.
Mitch McConnell Does Not Care About Consistency
Senate Majority Leader Mitch McConnell will do whatever he needs to to fill Justice Ginsburg’s seat. You might remember back in 2016 after Justice Scalia passed away. Then-President Barack Obama nominated Merrick Garland to Scalia’s vacancy. Mitch McConnell and the Republican Party blocked it. McConnell flatly refused to even put Garland’s nomination up for a vote.
McConnell’s reasoning at the time was that if a vacancy on the court comes up during an election year, the winner of that election should be the president who nominates a judge to fill the seat. Just days after Scalia died, McConnell released a statement that read:
“The American people should have a voice in the selection of their next supreme court justice. Therefore, this vacancy should not be filled until we have a new president.”
McConnell was successful in blocking Obama’s nominee and retaining that vacancy for Trump to fill- as he did- with Justice Neil Gorsuch.
This time, however, McConnell will not stick to this rule, that he once called “a principal.” McConnell will give us all sorts of backwards and exhausting intellectual acrobatics to try to justify why he won’t be consistent with what he did, and said, in 2016. He recently said something about it being dependent on which party controls the chamber or which party is in the White House or blah blah blah.
Don’t get caught in it.
Mitch McConnell does not care about being consistent. The reasoning he employed for that move in 2016 was so clearly done in bad faith that we would be foolish to expect any consistency or intellectual integrity here of any type.
A Conservative Majority
Donald Trump will most likely choose a pro-life judge. My bet at this point, and all signs point to, the nominee being Amy Coney Barrett. Barrett is a devout Catholic and notably anti-choice. In fact, back in 2018, when Kavanugh’s nomination began to derail, it was my thought that Trump would have been politically wiser to withdraw Kavanaugh and put up Barrett.
Either way, and even if it’s not Barrett, we can expect a conservative that is much further right and is likely in the political realm of Justices Thomas and Alito. The median of the court, which sits with Chief Justice Roberts at this point, will shift dramatically.
And this is the Supreme Court; Justices have lifetime appointments. This will change the makeup of the court for generations. A conservative majority on the Supreme Court, especially one that resembles Justice Scalia’s bent originalism (Amy Coney Barrett’s record of opinions, though brief, points to originalism), presents legitimate fears for the threat to basic rights for minority Americans.
Donald Trump, who understands subtlety as well as he understands history, has made clear his intentions in pushing for a vote before the election. His efforts to sow doubt in the election results demonstrate his hope that, with a new Justice, we could land in a Bush v. Gore situation where the Supreme Court, effectively, decides the outcome of a Presidential election.
“We need nine justices. You need that with the unsolicited millions of ballots that they’re sending. It’s a scam…”
His attacks on the election results present a threat much broader than just liberals losing power on the Supreme Court.
The threat is to our very democracy. To be clear, how plausible any number of possibilities that could go wrong is far from certain, if any of them actually do.
All that we can really say without any doubt is that a President of the United States is more than willing to tank an election for his own gain; if he can’t, he will no less try. And that is deeply disturbing.
Surprising, however, is one thing it isn’t.
Hope, At Least It Seems, Is All But Gone
The nasty political fight that is to ensue has put vulnerable Republicans between a rock and a very serious hard place. Susan Collins, for instance, is five points behind her competitor with only 5% of undecided likely voters— largely because of the backlash she received in Maine due to her vote for Brett Kavanaugh back in 2018. She’s desperate right now to preserve her reputation for being independent. A pro-life nominee does not help her situation.
Democrats need four Republicans to flip in order to block the nomination. That’s a tall order here. The three that would be most likely to, given the right conditions, would be Collins, Mitt Romney of Utah, and Lisa Murkowski of Alaska. Murkowski is not up for reelection this year, but at the time of this writing, both she and Collins have said that they are opposed to a vote before election day.
For a moment, all eyes were on Romney as well as Cory Gardner of Colorado, who is one of the most vulnerable senators this year. Romney has shown a willingness to stand up to Trump, being the only Republican who voted to convict him during the impeachment trial. Gardner, despite the political precarious situation he’s in, has stuck through thick and thin to Donald Trump.
Both, however, support moving forward with a vote. This all but ensures that Democrats will be unable to flip enough GOP Senators to block the nominee.
What Needs to Happen Next
Both Senate Republicans and Democrats have done things over the last several years that have further politicized the judicial branch, each one-upping the other one time after the next.
This road that we’ve been going down will not last forever. This entire situation is just asking for a constitutional crisis and in 2020, there are way too many avenues toward that already. We need to de-escalate.
In order to do that in this moment, the GOP needs to keep their word from 2016.
At very minimum, letting the winner of the election choose the nominee will restore some semblance that the people at the top on both sides are not just playing games with our livelihoods, and take their jobs somewhat seriously, especially when it comes to a lifetime appointment.
But, this is politics. And that’s apparently a lot to ask for. So we need to use the mechanisms that are available to us in the best way possible, no matter what the outcome may be.
The Dissenter’s Hope
If we have learned anything from Justice Ginsburg’s legacy, it’s that the fundamental rights granted to every one of us derived from self evident truths are worth fighting for at the midnight hour when it seems the most impossible.
Let’s go back to Justice Ginsburg’s quote about dissenting opinions:
“So that’s the dissenters hope: that they are writing not for today, but for tomorrow.”
It should be a rule in politics to never underestimate Mitch McConnell; he is always two steps ahead. But while we may take a hit today, we are fighting for so much more than just today. We are fighting for so much more than just ourselves, and we are not entirely helpless. The best way we can move forward is to dissent, and send a clear message to Mitch McConnell of a truth he already knows. In his memoir, The Long Game, McConnell writes of he led his conference after Barack Obama’s election to the Presidency:
“…I counseled my colleagues, first and foremost, to have patience. I was a young man in the Watergate era, and had been around long enough to know that there’s no such thing as a permanent majority, despite the joyous proclamations to this effect by the mainstream media, who were all predicting the imminent demise of the Republican Party.”
Indeed, there is no such thing as a permanent majority.
If our Republican Senators do not keep their word from 2016, then make sure they don’t forget it: