Ruth Bader Ginsburg’s Death Will Reshape America
By: Jill Filipovic
Tags: Supreme Court, Biden, Abortion, Ruth Bader Ginsburg, Trump

Ruth Bader Ginsburg’s Death Will Reshape America

All our worst fears are coming true

Photo: Tasos Katopodis/Getty Images

We have entered the danger zone. Supreme Court Justice Ruth Bader Ginsburg died on Friday evening, and the news was still fresh when Senate Majority Leader Mitch McConnell announced that any nominee to replace her would in fact go to a vote in the Senate before the November election. Republicans have a majority in the Senate, even though they represent a minority of Americans, and could very well speedily seat a new justice. There is little question that President Donald Trump will nominate a right-wing reactionary judge, someone who will spit on Ginsburg’s legacy.

It’s nearly impossible to overstate the direness of another Trump Supreme Court appointee. Ginsburg’s life work will be dismantled bit by bit. Even if Democrats are voted into office with a mandate to pass progressive legislation and then do just that, a far-right court will never allow much of it to stand. Voters won’t have a voice; a wall of conservative ideology will block any efforts to improve the status quo, defend the vulnerable, or even enact the will of the majority. We will be a country of permanent minority rule.

And it gets worse. The stakes could not be higher. A vacant Supreme Court seat will be a motivating issue for conservatives, too. It is unlikely that Trump won’t push his nominee through before the election, but it’s not impossible, given the short amount of time left and the potential for Republican senators facing tough races to follow through on their promises not to confirm new justices this late in the game. While blocking a Trump nominee would be a major win, it would also give the ranks of never-Trump Republicans and GOP-voting moderates turned off by the president’s behavior a new excuse to vote for him. An open Supreme Court seat is valuable territory, a prize so significant that even people who claim to find it morally compromising to support the president may find themselves, well, compromised.

Republicans, of course, are not the only ones who find open Supreme Court seats motivating. Democratic voters do too, as evidenced by an immediate spike in donations to Democrats trying to unseat Republican senators in the wake of Ginsburg’s death. The question then becomes who are the most motivated: Those who have something to lose, or those or have something to gain?

The question might be mooted by a Republican senate that refuses to play by its own rules and puts a new judge in Ginsburg’s seat. In that case, Democrats wouldn’t face a newly volatile election landscape, but also something worse: a descent into illiberal intransigence. A full accounting of what Americans stand to lose could fill a book. First on the chopping block are reproductive rights and gender equality, issues to which Ginsburg dedicated her life. It’s not just abortion that is under threat, although an additional conservative justice would almost surely mean an end to Roe v. Wade and legal abortion across the United States. No, overturning Roe would mean overturning the legal theory of reproductive and sexual privacy that underpins not just Roe, but a whole series of rights Americans hold dear and assume are permanent. Without sexual privacy rights as good law, much of what we take for granted goes up in smoke. Legal contraception. The right of adults to have consensual sex with each other, whether they are of the same or different sexes. The right of same-sex couples to wed. All of the cases that extended these rights to all Americans hinge on the right to sexual privacy, and it’s that exact right that conservative justices often say is invented and must go.

No piece of much-needed ambitious progressive legislation, no matter how much voters want it, stands a chance against a court with another Trump appointee

Ginsburg earned her “Notorious RBG” nickname after her dissent in an atrocious case rolling back voting rights. Already, the right of all American people to cast a ballot and determine the fate of their nation has been scaled back by conservative judges who have rolled back many of the protections of the Voting Rights Act, a landmark piece of legislation meant to counter several hundred years of efforts to bar Black Americans from participating in electoral democracy. We know that conservatives are attacking voting rights across the nation, often targeting people of color in their efforts to make it harder to vote. A more conservative Supreme Court would likely abdicate its responsibility to protect minority rights and democracy itself, allowing voter suppression to continue unabated.

Then there are civil rights. Over the past decade, the American right has developed a novel theory of what they call “religious liberty” that essentially allows individuals who proclaim a religious belief, no matter how divorced from science or reality, to discriminate at will. So far, this has mostly been targeted at women and LGBT people. In the Hobby Lobby Supreme Court case, for example, the court held that an employer’s religious belief that certain forms of contraception cause abortion — a belief that is in fact scientifically false — was grounds for him to be excused from the Obamacare contraception mandate, which required that insurance policies cover contraception costs. The owner of Hobby Lobby ran a secular business, and yet he was allowed to impart his own religious views on all of his female employees, and dictate what kind of health coverage they could receive, in conflict with federal law.

That case is just the tip of the iceberg. The conservative vision of religious liberty is so broad that it would allow people to use religion as a justification for just about any civil rights violation, from allowing a nurse to refuse to give emergency health care to a transgender person to allowing a hotel proprietor to refuse to rent a room to an interracial couple — as long as you put the veil of religion over it, according to this expansive definition of religious liberty, you can discriminate at will. A Trump Supreme Court appointee is virtually guaranteed to be on board with this obscene and bigoted theory.

And that’s just the beginning. No piece of much-needed ambitious progressive legislation, no matter how much voters want it, stands a chance against a court with another Trump appointee — not universal health care, not universal childcare, not student loan debt forgiveness or affordable college, not a Green New Deal. An even more right-wing court will overturn much of what Americans hold dear, and then make it impossible to enact further change through democratic processes.

This is an emergency that demands an emergency response right now — a response more immediate than (the very necessary) efforts to get out the vote. Every Republican senator should be feeling the heat now; the demands that they refuse to confirm a nominee before the inauguration in 2021 should be deafening. Because by the time voters cast their ballots in November, it just might be too late.