Why a judge’s health matters to US politics

Then US president Barack Obama greeting Supreme Court justice Ruth Bader Ginsberg, after delivering his State of the Union address on January 28, 2014, in Washington DC. Picture: Chip Somodevilla/Getty

Justice Ruth Bader Ginsburg has been diagnosed with lung cancer after breaking ribs. If she retired, her replacement would tilt the US Supreme Court to the right, says TP O’Mahony

WHEN Ruth Bader Ginsburg, an associate justice of the US Supreme Court, and a strong voice on its liberal wing, fell on November 7 and cracked three ribs, the news sent a frisson through the political and legal establishments in Washington.

Since then, there has been intense public scrutiny of the health of the 85-year-old judge and concern about the future of her tenure on America’s highest court.

The news of her fall sparked much interest — most notably in Donald Trump’s White House — while in others (especially where women’s rights are a priority) it ignited fear that Ginsburg’s forced retirement would provide Trump with the opportunity to name a replacement who would tilt the court even further to the right.

A month before Ginsburg’s mishap, Brett Kavanaugh was appointed after a nomination process before the US Senate that divided the nation, giving the court a more pronounced Trumpian stamp. Liberals are now fearful of the promotion of another conservative judge.

“The potential impact of her retirement, during the Trump presidency, for the law in America, cannot be overstated,” said Joan Biskupic, CNN’s legal analyst, who has covered the US Supreme Court for the past 25 years.

“The public clearly understands that. News of her fall and cracked ribs — at least the third such episode in the past six years — made immediate headlines. ‘Get well’ cards circulated digitally.”

In 1993, Ginsburg became the second woman to be appointed to the court (she had been nominated by then US president Bill Clinton), the first being Sandra Day O’Connor, nominated by then US president Ronald Reagan in 1981 (Day O’Connor retired in 2006).

And now, Ruth Bader Ginsburg is the subject of a new biopic, entitled On the Basis of Sex, which opened in cinemas in the USA on Christmas Day and will open worldwide this month.

Brett Kavanaugh
Brett Kavanaugh

There was some surprise when English actress Felicity Jones (she was born in Birmingham) was cast to play the Brooklyn-born Ginsburg, and critics who attended previews of the film have said she was miscast.

“It’s not that Jones is necessarily bad,” wrote Benjamin Lee in The Guardian. “She’s just incredibly miscast, never once justifying why she was picked for a role that was surely in demand.”

That view, however, isn’t shared by the judge herself. Having watched a preview, she told Vanity Fair she was very pleased with Jones’s performance.

That aside, the film, which follows a documentary, RBG, screened earlier this year, focuses on the early phases of Ginsburg’s career, and how her progress was hindered by sexist attitudes.

She was one of only nine women in a class of 500 at Harvard Law School in the late 1950s yet, despite graduating at the top of her class, she struggled to find work.

“As we see in a series of powerful and infuriating scenes, no law firm in New York wanted to hire a female lawyer in 1959, because, among other things, she might make the partners’ wives nervous,” said Radhika Jones, the editor of Vanity Fair, in an article on the new biopic.

Eventually, she was hired as a professor at Rutgers University in 1963, where she focused on gender discrimination.

So began a fight to reform the many federal and state laws that discriminated against women, just as the civil rights movement had already started to take on laws that discriminated on the basis of race.

Having co-founded the Women’s Rights Project of the American Civil Liberties Union, she argued several gender-discrimination cases before the Supreme Court, including Reed v Reed (1973), which resulted in the court, for the first time, prohibiting some forms of gender-based discrimination.

Having first been appointed to the Court of Appeal for the District of Columbia, by then president Jimmy Carter, in 1980 Bader Ginsburg’s advocacy of women’s rights, including reproductive rights, and her spirited opposition to legally-sanctioned sexism, meant Bill Clinton was lobbied to name her as a replacement for retiring Judge Byron White on the Supreme Court.

One of Ginsburg’s most notable constitutional decisions was United States v Virginia Military Academy (VMA) in 1996. This overturned VMA’s refusal to admit women, based on its belief that women were not up to its gruelling programme.

In the area of sex discrimination, she has continued to “lead the court with the zeal of a crusader”. according to Karen O’Connor, director of the Women and Politics Institute at the American University in Washington DC.

The US Supreme Court is unlike any other. Winston Churchill once called it “the most esteemed judicial tribunal in the world”. This is because of the power it wields.

“The Supreme Court has the awful responsibility of final power in our system of government,” said Anthony Lewis, who covered the court for many years for the New York Times and has written several books about it.

The US Supreme Court
The US Supreme Court

“When it finds in the constitution some limitation on the power of the political branches, that interpretation can be reversed only by a constitutional amendment or through an overruling of the prior decision by the court itself.”

The difficulty with the American constitutional system is that, unlike here, where Bunreacht na hÉireann can be amended by the people, in and through a referendum, amending the US Constitution is notoriously cumbersome.

The US Congress may propose an amendment if two-thirds of both Houses deem it necessary, or, on the application of legislatures of two-thirds of the states, can call a convention for proposing amendments.

In either case, any proposed amendment must be ratified by the legislatures of three-fourths of the states, or by conventions in three-fourths thereof.

The Supreme Court’s prestige and special status in the American system of government contributes to the awe with which its decisions are regarded.

That status also stems from the fact that the nine judges who sit on the court are appointed for life, and life in the context of the US constitutional system means life (there is no retirement age). The result is that those who are appointed to the court will invariably serve long beyond the term of office of the US presidents who nominated them.

Accordingly, the justices may, through their decisions, extend, enhance, reinforce, or unravel crucial aspects of presidential legacies.

“Most presidents have sought appointees who shared their views on national policy, and, of course, that is a president’s prerogative,” said Lewis. “But history shows that such efforts have not always worked out as intended.”

Judges who are appointed do not always, once on the court, perform as the presidents who put them there had expected.

In 1953, for instance, then president, Dwight Eisenhower, nominated Earl Warren as chief justice.

Warren, who had studied law at the University of California, was elected California governor in 1942, having previously served as the state’s attorney general.

Warren ran as the Republican vice-presidential candidate with Thomas Dewey in 1948 (Harry Truman retained the White House for the Democrats) and he played a key role in securing Dwight Eisenhower’s nomination in 1952.

Eisenhower, on becoming president, rewarded Warren by nominating him for the post of chief justice.

It was a decision that Eisenhower came to regret.

“When Earl Warren became chief justice, in 1953, few would have predicted that when he retired, 16 years later, the Warren court would be remembered for inaugurating a progressive constitutional revolution that changed the entire landscape of American law and life,” according to Morton J Horwitz, professor at Harvard of the history of American law and the author of The Warren Court and the Pursuit of Justice.

“The Warren court’s civil rights and civil liberties decisions thoroughly transformed American constitutional law.

“For the first time in American history, the Supreme Court demonstrated its concern and support for the weak and the powerless, the marginally and the socially scorned.”

President Eisenhower
President Eisenhower

Eisenhower’s election in 1952 signalled a shift to the right in American politics, during a period that saw the rise of McCarthyism and anti-communist paranoia.

Reflecting on his time in office, he would later say that appointing Warren was “the greatest goddamn mistake of my presidency”.

The influence of the Warren court even made its presence felt in Ireland.

“The Committee on the Constitution acknowledged, in 1967, that the Supreme Court would no longer be bound by earlier decisions, in respect of fundamental rights, suggesting that it might be creative in how these rights could be interpreted,” says Brian Girvan, professor of comparative politics at the University of Glasgow, writing in an essay in the 2005 book, The Lemass Era.

“Indeed, this view may well have originated with Lemass, who told Brian Walsh, when he was appointed to the Supreme Court, in 1961, that he would like the court to operate in a similar fashion to that of the American Supreme Court.”

Ginsburg has inherited the “creative” and progressive spirit of the Warren court. She changed the lives of American women, which is why she is so revered, and she has been an inspiration for a new generation of young feminists.

These women look to Ginsburg to continue to champion women’s reproductive rights, especially at a time when Roe v Wade, the historic 1973 case in which the court legalised abortion in the USA, is under threat of being overturned — an outcome that Trump and his supporters on the Christian right earnestly desire.

Much to the dismay of the Trump White House, Ginsburg told CNN, days after the appointment of Kavanaugh to the seat on the court vacated on the retirement of Anthony Kennedy, that she’d be sticking around for another five years, until she’s 90.

Meanwhile, marking Ginsburg’s 25th year on the Supreme Court, the first full-length biography of her, Ruth Bader Ginsburg: A Life, which is written by Jane Sherron De Hart with the judge’s co-operation, has just been published.

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