Ruth Bader Ginsburg’s death will always be for me and many others a “where were you” moment. I was with my girlfriend, having just sat down for our first COVID-era outdoor restaurant experiment. We were both flooded with texts and alerts at the same time, and suddenly the patio was full of people staring at their phones in horror. It was one of the few times in recent years that my fear overcame my fury. (It would be remiss of me to not point out that being able to put personal fear on the back burner is a result of my enormous privilege.) Ginsburg’s death—and Republicans’ craven rush to deny her dying wish—could easily warp America’s legal landscape for generations.

Ginsburg “achieved greatness before she became a great justice.” In 1971, she wrote the brief that convinced the Supreme Court that sex-based discrimination is unconstitutional; in 1972, she co-founded the ACLU’s Women’s Rights Project; in 1973, she argued at the Court for the first time, successfully making the case that the United States military could not discriminate based on sex in providing benefits to service members’ families. As a litigator, she often chose male clients in arguing sex discrimination because she knew male judges would find their plight more sympathetic. As a Justice, she struck down a males-only admission policy at the Virginia Military Institute, and her powerful dissent in 2007 directly led to the passage of the Lilly Ledbetter Fair Pay Act under President Obama. Ginsburg also had serious flaws, including her record on immigration issues and her conspicuous lack of Black law clerks.

But this is not an obituary or a hagiography or a remembrance. I’m scared. I’m scared because Ginsburg will quickly be replaced by an anti-immigrant, homophobic, transphobic, soothingly-packaged zealot whose guiding legal principle is “building the Kingdom of God.” I’m scared because with this, the far right will hold a 6-3 iron grip on the Supreme Court (fun fact: five of the six in the majority will have been appointed by Republican presidents who lost the popular vote), allowing them to dismantle civil rights laws and erode the right to vote even beyond their recent successes.

The only thing preventing five Supreme Court Justices from bringing us back to a pre-New Deal era of unfettered corporate power and limited civil rights is a supposed belief in judicial minimalism—that it isn’t a judge’s place to create law, only interpret law according to the Constitution. Conservatives have long parroted this principle and accused liberal judges of “activism,” even while Federalist-Society-vetted, Republican-appointed judges across the country have made sweeping changes to the law that reflect their own long-wished-for policy outcomes, none of which can be squared with the methodology these judges claim to be their lodestar. If the Court is asked whether the president can murder someone on Fifth Avenue and not be charged, there is absolutely nothing anyone can do to stop five of them from saying yes (short of impeachment or Court-packing, which, good luck).

Maybe that example feels a little far-fetched. So what specifically am I scared of?

A constitutionally-guaranteed right to carry assault rifles in public, further emboldening armed gangs of white supremacists. Making it functionally illegal or impossible for women to receive safe abortions, thus incentivizing more unsafe ones. Stripping away the few remaining rights retained by immigrants and asylum seekers. Broader definitions of who qualifies as a “religious employer” and continuing to grant exemptions for discrimination against employees. Preventing citizens from holding police officers accountable for brutality and murder. Limiting the right to vote in a way that just so happens to disproportionately benefit Republicans and predominantly rich white people. Allowing corporations to spy on you and sell your data with reckless abandon. Preventing efforts to stop catastrophic climate change. Enshrining anti-LGBTQ discrimination as freedom of expression and/or religion (it doesn’t matter, whatever gets the job done). And perhaps most immediately: finding a way to hand the election to a man who has fully come out as a wannabe-autocrat attempting a coup and then tearing down the healthcare system during a pandemic. (If you have a pre-existing condition (i.e., everybody), I truly hope you don’t lose your healthcare anytime soon—getting it again is about to become a whole lot more expensive.)

So yeah, I’m terrified. If you’re not, ask yourself why—and if you would be in someone else’s shoes.

2 Comments

  1. Geneva Langeland

    Right there with you, Ben. It’s only going to get more harrowing from here.

    Reply
  2. Kyric Koning

    You have certainly put a lot of research and thought into this piece. Peace and courage are definitely things that come up in my prayers often. I hope you can find a measure of them too.

    Reply

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