The passing of U.S. Supreme Court Justice Ruth Bader Ginsburg is tantamount to a major loss for the progressive movement in that country, as it leaves the highest court, already leaning conservative, firmly in the grasp of those who might rewrite the law on the issues such as reproductive rights, immigration, healthcare and more.
She leaves behind a legacy of courageous litigation campaigns and far-reaching jurisprudence that altered prejudices embedded deep within U.S. law, which would otherwise have denied women their rightful place as the equals of men in the sphere of civil liberties and economic rights. The landscape of U.S. law on administering estates, for example, today reflects the seminal contribution of Justice Ginsburg in the form of her early challenge to the practice of giving preference to men as administrators, defended by the government based on men’s supposedly greater familiarity with commercial matters.
Balanced approach
In diverse applications of law, including benefits rules for members of the U.S. military, Social Security regulations, and admissions policies for state-supported colleges, Justice Ginsburg’s relentless fight for gender parity led to the redressal of gender biases that appeared to be built into the system.
The depth and balance of her jurisprudential vision was such that through the years of these legal battles against sex-based discrimination she was as doughtily supportive of men’s rights to receive fair and equal treatment under law as she was of women’s rights. This principle of hers, to the spirit of uncompromising equality before law, was manifested in Weinberger v. Wiesenfeld, 1975 , which overturned a Social Security practice that deprived widowers of survivor benefits based on the assumption that wives were always secondary breadwinners with lower incomes.
Succession battle
This seminal legacy notwithstanding, it appears likely that the circumstances of her passing have generated considerable cause for concern among U.S. Democrats, specifically on what it means for the selection of her successor in the Supreme Court.
The Court already leans conservative by five justices to four. Had Justice Ginsburg heeded the call to retire during the term of former President Barack Obama, whose party, the Democrats, controlled the Senate for a part of his term and could have confirmed a potential Supreme Court nominee, the 5-4 balance might have been preserved.
She had argued then that she would serve the Court for as long as she possibly could, yet days before her passing said to her family that her fervent wish was that she would not be replaced until a new President was installed post the election on November 3, 2020.
Now, in violation of the Thurmond Rule, a tradition whereby the Senate avoids confirming presidential nominations to the federal judiciary in an election year, Senate Majority Leader Mitch McConnell has already invited President Donald Trump to nominate her replacement.
His move is replete with irony given that in 2016 it was Mr. McConnell who refused to countenance Mr. Obama’s Supreme Court nominee, Judge Merrick Garland, a highly regarded centrist candidate whom even Republicans had praised as an acceptable Democratic nominee.
Mr. Trump has already successfully nominated two justices to the Supreme Court, Brett Kavanaugh and Neil Gorsuch, tipping the Court rightward. That brings to four, including Chief Justice John Roberts and Justice Samuel Alito, the number of Supreme Court justices nominated by presidents who did not win the popular vote in the election.
If Mr. Trump manages to nominate another candidate who wins Senate confirmation before this election, a genuine question will arise as to whether the Supreme Court and its future decisions are in line with the idea of justice that a majority of Americans believe in.
