4 October, 2020 — The Precarious State of Justice Ruth Bader Ginsburg’s Progressive Legacy – Part 1

United States of America Supreme Court Justice Ruth Bader Ginsburg passed away on September 18th, 2020, leaving behind a phenomenal legacy of progress toward equal rights for women and minorities. However, the vacancy she leaves behind in the Supreme Court may hastily be filled in such a manner that notable strides made toward social and environmental justice in the past 60 years are soon reversed. This probable outcome is of consequence to all of the world’s peoples and ecosystems, simply because the actions of the US have far-reaching effects on various aspects of life globally, including freedom, distribution of wealth, culture, human rights, and climate change. The disproportionate influence of the US is due primarily to its ideology of individualism, exceptionalism, and consumerism that drives the country’s economic (over)reach backed by its military power.

Not being a parliamentary system, the US constitution vests great power in one person, the President, who may take pervasive actions with worldwide effects through directives or Executive Orders that do not require legislative approval. For example, the Trump administration, building on a 1984 Executive Order issued by President Ronald Reagan, conditioned that almost all US global health aid for foreign entities be granted in exchange for certifying that abortions will not be performed or counseling provided about the procedure.[1] Another example is that of President Donald Trump promising to withdraw from the Paris Agreement, adopted in 2015 by 195 nations to combat climate change and to accelerate and intensify the actions and investments needed for a sustainable low carbon future.[2] Yet another example is that of the ‘Muslim Ban,’ an Executive Order signed by President Trump banning foreign nationals from seven predominantly Muslim countries from visiting or re-entering the US for specific periods of time.[3]

The above are just three examples of how actions taken by the US President can have far-reaching consequences globally on health, women’s reproductive rights, cultural norms, means of production, environmental preservation, migration, and travel. The US Supreme Court, the Judicial branch, comes into this calculus as a check on the power of the Executive and Legislative branches. And that is why it matters who the nine individuals sitting on the Supreme Court bench are. In the words of Justice Ginsburg: “The Court is a reactive institution. It’s never in the forefront for social change. There’s always a movement in society that’s pushing the Court that way.”[4] One of these movements that pushes the Court is that by a US President, who has the power to nominate an individual to fill a vacancy in the Supreme Court for confirmation by the US Senate by a simple majority. Appointments to the US Supreme Court are typically for life. Since the political system in the US is essentially binary, with this binary system increasingly becoming a system of viscerally diametric opposites, there are essentially two flavors of Supreme Court nominees: those who wish to advance social and ecological justice and those who do not. Thus, the composition of the Supreme Court may result in the advancing or receding of society for an entire generation or more.

Ruth Bader Ginsburg spent nearly her entire professional life persuading the Supreme Court to move in the direction of progress, as illustrated by her accomplishments first as a brilliant lawyer and then as an often admonishing dissenting Supreme Court Justice. Ruth Bader Ginsburg was born in 1933, when “if a woman worked, it was a sign that her husband couldn’t make it; it was a disgrace for a man to have a woman who worked outside the home.”[5] In 1959, upon graduating from Columbia Law School, tied for first in her class and being the first woman to have been on the Law Review at both Harvard and Columbia, “not a law firm in the entire city of New York would employ [her]…. being a woman was an impediment.”[6] One of her Columbia University professors eventually secured a clerkship for her by offering a judge who was a Columbia alumnus “this choice: give her a chance and if she doesn’t work out, there’s a young man in her class, who… will take over.”[7]

[1] How US government restrictions on foreign aid for abortion services backfired. Grant Miller et al., Stanford Institute for Economic Policy Research (SIEPR). September 2019. Available on: https://siepr.stanford.edu/research/publications/how-us-government-restrictions-foreign-aid-abortion-services-backfired

[2] What is the Trump administration’s track record on the environment? Samantha Gross, Policy 2020 Brookings. August 4, 2020. Available on: https://www.brookings.edu/policy2020/votervital/what-is-the-trump-administrations-track-record-on-the-environment/

[3] Timeline of the Muslim Ban. ACLU Washington. Last visited 21st September, 2020: https://www.aclu-wa.org/pages/timeline-muslim-ban

[4] Legally Speaking: Ruth Bader Ginsburg. University of California Television (UCTV). November 3, 2011. Available on youtube at https://youtu.be/XA5KTkCGTWo

[5] Legally Speaking: Ruth Bader Ginsburg. University of California Television (UCTV). November 3, 2011. Available on youtube at https://youtu.be/XA5KTkCGTWo

[6] Hearings before the Committee on the Judiciary United States Senate 103rd Congress 1st Session on the nomination of Ruth Bader Ginsburg, to be associate Justice of the Supreme Court of the United States. Serial No. J-103-21, S. Hrg. 103-482. July 20, 21, 22, and 23, 1993.

[7] A conversation with Ruth Bader Ginsburg at HLS. Harvard Law School. February 7, 2013. Available on youtube at https://youtu.be/umvkXhtbbpk

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