I initially wrote this column in the immediate aftermath of RBG’s death, then updated it in the days following.
Ruth Bader Ginsburg, fierce opponent of injustice, has died. She was 87, had survived three kinds of cancer, but finally succumbed to the same thing that took my mother, metastatic pancreatic cancer. When I found out 80 minutes into our New Year, at 8:01 p.m. (Jewish New Year starts at sundown), my optimism died.
Of course I mourn her, but not just as I would any iconic octogenarian who had lived an extraordinary life. I mourn her as our gatekeeper. Not always, but often, the courts have been the last line of defense against the wilder policy spasms of this administration, and the Supreme Court is the ultimate stopper. Upon learning of her death, my immediate thought was, what happens to us now?
I struggled distractedly through the rest of the holiday night. It was the first time I had ventured out to take a calculated risk at friends’ house since the pandemic started. When I got home, I prayed that no one would get on the elevator with me. When I got inside, I leaned on the door, took a deep breath, and let the tears of grief and fear come. I dropped what I was carrying where I stood and trudged into my closet. I reached for my support animal – a two-foot long (without the tail) stuffed lion I have had since I was in a wheelchair. I clung to my beastie for hours while I tried to find some kind of expert reaction that would give me hope that the inevitable wouldn’t happen. There was none.
Make no mistake, this administration will appoint another Supreme Court justice. It’s what both Senate Majority Leader Mitch McConnell and the president have dreamed of since the moment the president was elected. Previous statements and perceptions of hypocrisy don’t matter* to the people who will be asked to confirm the next justice. These are people who have publicly objected and then rolled over on this administration’s harmful policies over and over and over. When the stakes are this high, I can’t rely on the integrity of people who have proven they have none.
Why am I so upset about the prospect of this as-yet-unnamed nominee when I wasn’t even by the Kavanaugh nomination? Social issues. This country is moving in the social justice direction, and this nominee will make it so the court can pin our feet to the floor. With this appointment, the rhetorical position of the Supreme Court would stand in direct opposition to what the American people want, not just on RBG’s signature issue of gender equality, but on racism, police reform, reproductive rights, the environment, and even common sense gun control. With a 6-3 majority, there will no longer be a swing vote. It would have to be two swing votes, and how likely is that?
Of course, what frightens me most about this situation is what will happen to Obamacare. We have gotten used to its protections in a remarkably short amount of time, but there is a case in front of the Supreme Court right now that, if successful, would declare the entire law unconstitutional. If that happens, we lose preexisting condition protections, bans on lifetime expenses caps, the essential health benefits, the ability to keep our kids on parents’ policies until they’re 26, and the ability to expand Medicaid, among other things. Arguments will be held November 10th, likely before all our votes will have been counted. The case is weak, the arguments unsupported by reality, but in previous cases against Obamacare it was only Roberts’s swing vote that protected it. Republicans have been salivating to repeal it for a decade. Even if the case is heard before the new justice is seated (justices can’t vote if they are not present to hear arguments), and it ends in a 4-4 ruling, the lower court’s ruling stands. Since the plaintiffs judge-shopped the case to the most favorable jurisdiction (democrats do this, too), that means Obamacare will be declared unconstitutional.
And there is nothing we can do, no matter what frantic pundits say. I heard one person say we should hold Republicans’ feet to the fire and hold them to statements previously made regarding whether a Supreme Court justice should be confirmed in an election year.*
How? There has been no accountability since this president assumed power. What makes this person think that all of a sudden, people who have felt no consequences for their actions will act in a way that implies they think there will be consequences this time. Even children understand that lack of consequences gives them a green light to continue misbehaving.
The Senate is the sole body responsible for confirming judges. Three and a half months is plenty of time to ram a justice through the confirmation process. Even 40-odd days is enough if McConnell is motivated enough, and he is. If all the usual suspects choose to do what they have done for the last four years – make noises of independent positions, then vote with the Trump crowd anyway – an unbreakable conservative majority in a socially left-moving country is what we will have for a generation.
Even as she lay dying, Justice Ginsburg understood the wider implications of her own death. In her last wish, she dictated a statement to her granddaughter that she wanted her replacement to be named by the next president. She knew what we would be facing now.
It’s been 12 hours and I am still clinging to my stuffed animal hoping with all I’ve got that the inevitable won’t happen. I wish I had better things to tell you. I am a natural optimist because, despite the universe’s and my own best efforts, I am still alive. This kind of fear feels unnatural. But we are in trouble on this.
Fighting Back
We may not be able to stop a conservative court, but one of the reasons the GOP has plowed ahead full steam is that they know that they are about to lose the Presidency and/or the Senate. Additionally, RBG’s death, the disrespect of moving before the country has even had a chance to mourn, is going to galvanize democrats far more than republicans. On an issue that has historically motivated conservatives much more than it has liberals, the GOP may be in for an election result they can’t anticipate.
It always amazes me that politicians these days have no long view. They act in the moment, never thinking that they will fall out of power eventually. Well, as the likelihood of a democratic lock on the two branches grows more and more likely, so does our ability to fight back. And as much as I think we need civility; civility doesn’t protect us. This time the gloves should come off.