Ruth Bader Ginsburg is dead, and we’re the ones going to hell

Perhaps the most important civil rights cases ever to be heard were a series of suits deliberately engineered by Charles Hamilton Houston (mentor of Thurgood Marshall was one of the least of his accomplishments) to test the meaning of “separate but equal”.

While the general public remembers Brown v. Board of Education, Topeka, Kansas, SCOTUS’ decision in that case was unanimous only because of the Socratic groundwork laid in earlier cases that targeted law schools. There were several that attempted to nail down the legal deficiencies of Jim Crow before activists pushed to desegregate K-12 schools. One of the last was Sweatt v. Painter, which challenged the University of Texas’ regime. UofT attempted several tactics, but one of the last was the emergency creation of an ad hoc Blacks-only law school at a separate location.

RBG’s first historically important decision was the VMI case styled US v. Virginia, where the last public, men-only college or university was challenged. Virginia, too, set up a special military academy for women as a last ditch attempt to evade integration, but it fell to Ginsburg in her first important case to declare that the deficiencies of racially segregated eduction were just as unconstitutional when they appeared in the context of gender segregated education.

This is how I will remember RBG: from the beginning of her career on SCOTUS she was fighting a rear guard action against the regressives who were unwilling to admit that precedents or principles existed, that certain issues had been decided, that certain values held constitutional significance.

The most obvious of such fights is the struggle to preserve the rights of privacy, autonomy & conscience embedded in the reasoning of Griswold, Eisenstadt, Roe, and Casey. But this is far from the only battle in which she played the rear guard, making the argument for constitutional values that most of us wander about life not noticing are still being questioned, still under attack. Shelby County v. Holder was another, though in that case less successful, instance.

Shelby County notwithstanding, she has been wonderfully effective in this role, and to lose her at any time is tragic. To lose her during this presidency is devastating.


  1. says

    This is sad on a human level; I feel for her loved ones. And of curse she was an icon to so many people.

    Normally I would feel people should have time to grieve before bringing up practicalities; but unfortunately, in the current circumstances we don’t have time for that.

    The GOP has been quite clever in their overall strategy. They’ve been willing to give up Congress to keep the Senate. And whilst that may have hindered some of their short terms plans, it may enable them to preserve overall power for generations. It’s the Senate that costs when it comes to things like confirming judges and other office holders. And that’s where so often the power lies. Even at state level, a judge is a powerful figure. They can confirm everthing from contested district boundaries to local election results.

    But what is particularly worrying is SCOTUS’ power in the presidential elections. You’d have to be blind not to see that Trump is setting up the state to contest any result that goes against him. And of course the ultimate arbiter of the disputed postal votes will be SCOTUS.

    It’s like 2000 all over again; but with even shittier music.

  2. says

    @Marcus No. 3.

    The better timing might have been on 20 January 2009.

    That was when President Barack Hussein Obama had the most political capital to work with.

    Every day past his inauguration greatly depleted that capital. By 2014 the best he might have done was a weak centrist nominee like Merrick Garland.

    If Associate Justice Ruth Bader Ginsberg (as well as every progressive on the bench) had resigned on the first day of the Obama presidency we might have gotten Associate Justice Sonia Sotomayor by June; Elena Kagan by August and a third nominee the following year.

    All of that is, of course, woulda, shoulda, coulda. As Crip Dyke says, this is the hell we’re now forced to deal with. The best strategy at this point is to put every kind of voter pressure we can think of on a few, key, senators—think Susan Collins,Lisa Murkowski and maybe one or two others—to deny Senate majority leader Addison Mitchell McConnell the votes to confirm any candidate before 20 January.

    I must confess that my suggestion may very well be worthless, however, because I continue to believe that when the dust clears in November, Joseph Robinette Biden will not be the next president of the United States.

    Welcome to hell, indeed,

    We have no one to blame but ourselves.

  3. Pierce R. Butler says

    RGB, RIP.

    Alan Robertshaw @ # 1 – Repubs “gave up” the House to keep the Senate, not “Congress” (= House + Senate). And the Senate counts, not “costs”, in confirming or denying appointments.

    As for the next steps: it seems McConnell & Trump™ have already boxed themselves in by promising a nomination and a vote Real Soon Now. They seem likely to take that a step further by picking some ideological extremist to appease/stimulate their fanatical base.

    If it plays out that way, then (a) the hearings will feature fireworks as Sen. K. Harris and other talented and well-motivated Dems flense the nominee in Senate Judiciary Committee hearings, and (b) the predictable ramming-through of the appointee by the Repubs will catalyze Black/women’s/Democratic voters and possibly reduce incentive for some Republican voters to turn out.

    Should McConnell find an excuse to delay… I may have this wrong, but I think hearings without a vote before the next Senate is sworn in will be moot, and the nomination/hearing process would have to start all over next year. Which would incentivize both sides to get-out-the-goddamn-vote and further intensify the national election process (including vote suppression and backlash thereto), possibly also to the Dems’ advantage – though maybe not so much as the previous scenario.

    Fasten your seat belt – and your crash helmet straps!

  4. says

    @ pierce

    Oops, yes, thank you for the correction. I would make the excuse I was typing in a hurry; but I’m equally as useless on our own government bodies.

    At the risk of doomandgloomism, I too think there’s every chance Trump will win; even without the (additional*) election shenanigans.

    Hopefully though the RBG situation has highlighted to people how much is at stake here and galvanise the vote. Although will that appeal to those who feel totally disenfranchised or unmotivated to vote anyway?

    Perhaps though the youth vote might crystallise this time. Talk of the long term impact of the makeup of SCOTUS might get them thinking about the future. I hope so. I

    f the Dems can keep the House (see, I’m learning!) and also take the Senate and the Executive then they have at least two years to use that power to take some really radical steps. Ironically the GOP have shown that you can be really radical and throw out the last vestiges of the constitutional politics; so maybe the Dems should steal some things from the GOP playbook. Time to get down and dirty. I understand the mindset that makes the Dems think you win elections from the centre; but if they do win then there’s no need to appeal to calm, at least for a while. So use that time to shake things up a bit, consolidate, and make sure they fight the 2024 election without one hand tied behind their backs this time.

    (*notwithstanding the standard voter suppression, electoral college inherent advantage etc)

  5. Pierce R. Butler says

    Alan Robertshaw @ # 6: … then they have at least two years to use that power to take some really radical steps.

    Yabbut we said exactly that about the elections of 1992 and 2008 (and it was true both times!), yet …


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