Justice Ginsburg’s Parting Gift


The death of Ruth Bader Ginsburg may be the best thing that could have happened to the left in this country.

That sentiment will strike many on the left as preposterous, even offensive. What we’re supposed to say—at least if we align with the left—is that Friday, September 18, 2020, is the day the Supreme Court finally and firmly passed to the right, where it will remain for the foreseeable future. That assessment is probably correct. Assuming Justice Ginsburg is replaced by a reliable ally of the religious right, as the President has vowed, then the ideological center of the Court will have shifted to Justice Kavanaugh. When Brett Kavanaugh is the new Anthony Kennedy, there is no Court for the left.

But I stand by my contention: Justice Ginsburg has given the left a great gift, if it knows how to use it. Finally, and none too soon, the popular infatuation with the Court as the Great Protector of Individual Rights can be laid to rest. We will now see the Court for what it has been for most of its history—a reactionary branch committed to the preservation of wealth and the status quo. With the exception of a brief and unrepresentative period from the mid-1950s to the early 1970s, the Court has not been an agent of progressive change. Quite the contrary, it has been decidedly unkind to claims pressed on behalf of underrepresented minorities and the poor. Outside of two short decades, the Court has been timid and conservative, lending its support for progressive policies only after they have already won widespread approval. By the time the Court managed to recognize a right to same-sex marriage in Obergefell v. Hodges, for instance, it was already the law in 37 states and the District of Columbia.

I understand why so many on the left worship the Court—or rather, the myth of the Court. For one thing, they fixate on the golden years. They point to cases like Brown v. Board of Education (1954), Roe v. Wade (1973), and of course, the entire due process revolution in criminal justice, which brought us familiar decisions like Miranda v. Arizona (1966) and lesser known but even more important cases like Mapp v. Ohio (1961), which held that evidence seized unlawfully by the police could not be introduced in a state criminal prosecution, and Gideon v. Wainwright (1963), which extended the right to counsel to all felony prosecutions.

But what so many fail to appreciate is that all the rights and protections established during this period, literally without exception as far as I can tell, have been substantially diluted by the same Court that created them, some nearly to the point of elimination. Miranda, for example, has been so riddled with exceptions and workarounds that its function is almost wholly symbolic; the decision does far more work on TV than in police stations. In many states, Roe is already on life support, and the Court has sanctioned rules that make the right to an abortion practically unattainable. In Louisiana, for instance, there are only five doctors in the entire state who provide abortions; earlier this year, the Supreme Court struck down a rule that would have reduced it to one. The decision was hailed as a great victory.

As for Brown, there is an entire cottage industry, led by constitutional historian Michael Klarman, devoted to showing that the decision did little to desegregate schools and much to trigger a white backlash in the south. Schools did not begin to desegregate until 1964, when Congress finally made desegregation a condition of federal funding. In any case, the Supreme Court emphatically gave up on the ambition of Brown in 1974 when it refused to allow states to impose inter-district busing as a way to achieve integration. In short, the myth of the Court worships a body of law that, in many cases, exists only in name.

The left clings to the myth of the Court for a second reason as well. In this country, the idea of the law holds a particular appeal. In a nation that is at least nominally secular, many Americans imagine the law—and especially the Constitution—as conferring an argument-ending legitimacy. They revere the Constitution with the same kind of devotion that others bring to religious texts, and use the Constitution to substantiate and buttress their vision of the world. They cast their understanding of good and bad, right and wrong, or just and unjust in constitutional terms. In that way, uninformed Constitution-speak replaces reasoned debate. Just look at the anti-maskers; their rhetoric is thick with vague but impassioned claims to constitutional entitlement, as though winning the constitutional argument would end the controversy. And since the Supreme Court is the ultimate arbiter of the Constitution’s meaning, the Justices are thrust into the unwelcome position of secular High Priests. Control of the Supreme Court means control of our most sacred text, and we imagine the Court will resolve social controversies that are far outside its remit.

Both these explanations—the celebration of cases that live only in memory, and the conversion of Justices into Oracles—point to the true danger of worshipping the Supreme Court: The practice supplants democracy and sidesteps the people. It imagines that there is a substitute for politics, a shortcut that will allow us to achieve an enduring progressive vision without having to engage in the protracted ugliness of partisan politics. We point to past cases because we think it has happened before, but overlook the fact that these decisions did not endure. We put our faith in Oracles who stand atop politics because we are sickened by the emergence of a world in which facts no longer matter, science is ridiculed, and jack-booted racism is on the march. So we look to the Nine for our salvation. But they are not—and in truth have never been—our Saviors. Only the people can save the left.

And that is Justice Ginsburg’s parting gift. Her death leaves the left no option but to fight the political battles. If you want a durable right to choose, get it from your state legislature. If your legislator doesn’t agree, vote them out. If you want meaningful action on climate change, get it from Congress. If your Congressperson won’t act, vote them out. If progressives want to change the country, they must retake the presidency, reclaim the Senate and win back the statehouses. They must rout the right at the ballot box.

Fortuitously, Justice Ginsburg’s death increases the likelihood of just that outcome. As political campaigns well know, nothing motivates a constituency like a sense of threat. After the election of Barack Obama, for instance, the NRA parlayed fear of the new President into “a dramatic increase in membership,” and gun sales surged 60 percent. Federal tax receipts for pistols and revolvers alone were 90 percent higher in the fourth quarter of 2008—the month before and two months after Obama’s election—than they were in the fourth quarter of 2007. The same thing happened on the left after the surprise result in 2016. Within months of Trump’s election, membership in the ACLU skyrocketed from around 400,000 to more than 1.8 million and contributions ballooned by $120 million. In the same way, the knowledge that the Court is lost to the left should trigger a groundswell of political and financial support for progressive and liberal candidates, lest the entire architecture of government be controlled by the right. In politics, threat leads to action, and after Friday, the sense of threat has never been so real. The ships have been burned; there will be no retreat to the Court.

Just as her death should invigorate the left, it will enervate the right. Campaigns articulate a vision of success and promise their supporters that all will be right with the world once that goal has been achieved. For the right, success has meant control of the Court. For decades, the right has struggled to achieve a secure majority on the Court, only to suffer one disappointment after another. (To the radical right, Justice David Souter, appointed by the first President Bush, and Chief Justice John Roberts, appointed by the second, were wasted picks). Now that victory is at hand, a letdown is inevitable. While threat produces action, victory leads to quiescence.

In short, Justice Ginsburg’s dying gift was to alter the all-important politics of fear just when it mattered most.

Many will say I am too quick to dismiss the harm that will come when the post-Ginsburg Court overrules Roe or any of the other decisions long worshipped by the left. I assure you I am not. I know that many will suffer as the Court continues its rightward shift, particularly the poor. But that shift is now an accomplished fact; we cannot will Justice Ginsburg (or Brennan, Marshall, or Douglas) back to life. What we can do is vote, and if we mobilize in numbers, that will be enough. Not everywhere, but in enough places to signal the will of the country. And when the people speak, the Court listens. As a rule, the Court does not stray too far from popular will. Now we have to make that will known. We owe that to RBG.

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