TP O'Mahony: RBG was a giant of the American legal system

Ruth Bader Ginsburg was instrumental in shaping US law and that influence was felt all over the world. She leaves an important legacy and the battle to replace her will be a 'dramatic showdown', with long-lasting effects, writes TP O'Mahony.
TP O'Mahony: RBG was a giant of the American legal system

In this April 6, 2018, file photo, Supreme Court Justice Ruth Bader Ginsburg applauds after a performance in her honour after she spoke about her life and work during a discussion at Georgetown Law School in Washington. The Supreme Court says Ginsburg has died of metastatic pancreatic cancer at age 87. Picture: Alex Brandon

The liberal US tradition of using the law and the courts to uphold and expand personal rights - of which Ruth Bader Ginsburg was an outstanding champion - had a significant influence on Irish jurisprudence as well, especially since the 1970s.

It is doubtful if the Irish Supreme Court would have ruled as it did in 1992 in the X Case if the US Supreme Court hadn’t already legalised a right to abortion in the famous Roe v Wade case of 1973.

Similarly, the 1974 decision by the Irish Supreme Court in McGee v AG, which established a right to marital privacy (thereby permitting access to contraceptives for married couples), would have been very unlikely but for the 1965 ruling in Griswold v Connecticut, in which the US Supreme Court found an “implied right” to marital privacy, overturning a statute banning contraception.

This is why these four cases have come to be considered landmark rulings in the constitutional law of both the United States and Ireland.

These cases were, of course, decided when RBG (as Ruth Bader Ginsburg came to be known to her friends and army of admirers) was still teaching law at Rutgers University and Columbia Law School. 

But they influenced her understanding of the law and fostered an expansive role for the courts in the area of individual rights.

So when her time came to take her place (courtesy of President Bill Clinton) on the bench of the highest court in America in 1993, she was steadfast in support of Roe v Wade and women’s reproductive rights. 

She would go on to become a crusading judge and would influence the court in outlawing gender discrimination.

She was instrumental in blocking several attempts to restrict women’s access to abortion, fearless in battling all forms of discrimination based on sex, and a strong advocate of gun control legislation.

This, and the fear that conservative judges appointed by President Donald Trump may seek to overturn Roe v Wade and row back on reproductive rights, is why her death at the weekend at the age of 87 has been so widely mourned.

During her long tenure on the Supreme Court, she became the leader of its liberal wing, acquiring rock star status among young female law students. And, already the battle-lines are being drawn as controversy grows over whether Trump or the winner of the November election should nominate her replacement.

Trump seems determined to name a new judge and since Republicans are in a majority in the US Senate (which must give its consent to the President’s nominee), that now is the likely outcome.

I met Ruth Bader Ginsburg in Dublin in January 2007. We met by arrangement in the residence of the US Ambassador in the Phoenix Park. 

She came in unannounced and crossed the room to shake my hand. Although diminutive in stature and deceptively soft-spoken, I knew I was in the presence of a giant of the American legal system.

Her appointment by President Bill Clinton made her only the second woman to be appointed to America’s highest court. But by the time we met in Dublin, the state of RBG’s health was already causing concern about the future of her tenure on the court.

She shrugged that off when I met her, and appeared serene about the future.

TP O'Mahony with Ruth Bader Ginsburg in Dublin in 2007. 	Picture: Paul Sharp
TP O'Mahony with Ruth Bader Ginsburg in Dublin in 2007. Picture: Paul Sharp

“What will be will be,” she said with a smile. She had with her a copy of the US constitution, which, she said, she carried everywhere. 

Inevitably, given the level of gun crime in the USA, we talked about the Second Amendment.

I mentioned to her a famous article by journalist and novelist Pete Hamill entitled “Twenty Seven Words - The Bloody Problem of the Second Amendment”. 

This amendment is one of the first ten known collectively as the Bill of Rights; these were ratified and added to the constitution (which itself had been ratified in 1787) in December 1791.

Hamill had stated that he was on the side of those who believe that the goal of all intelligent, compassionate citizens - of all races and political creeds - should be the elimination of private guns from American life.

RBG was in full agreement, but, like Hamill, she said there was little hope that this could be accomplished quickly or easily.

“A love of guns is deeply embedded in American culture,” she said, shaking her head in sadness. 

“This goes back to the frontier towns established during the opening up of the West in the 19th century. Many of these towns were lawless, and matters were often settled by guns. We have inherited that awful legacy.” 

The concerns about her health multiplied ten months after our meeting when she fell and cracked three ribs, having already been diagnosed with lung cancer.

But this woman was incredibly resilient and spirited, and defiantly told CNN that she’d be “sticking around until I’m 90”.

That wasn’t to be, and because of this the great worry among liberals, and especially women for whom she had always been a powerful voice, was that if anything happened to her before November’s election it would give President Trump an opportunity to tilt the court even further to the right.

Mrs Justice Ginsburg hoped she could prevent that, but fate intervened.

People gather at the Supreme Court to honor the late Justice Ruth Bader Ginsburg, Saturday, September 19 in Washington. Picture: AP Photo/Cliff Owen
People gather at the Supreme Court to honor the late Justice Ruth Bader Ginsburg, Saturday, September 19 in Washington. Picture: AP Photo/Cliff Owen

Shortly before her death, she told her grand-daughter that she wanted her replacement to be chosen by the “new President”. 

She has never hidden her contempt for Trump, speaking out quite bluntly before the 2016 election, saying afterwards that “sexism played a role” in the defeat of Hillary Clinton.

But Trump has already made plain his intention to nominate a replacement before November, and Mitch McConnell, the majority leader in the US Senate, said there will be a vote on the confirmation of Trump’s nominee before the election. 

Joe Biden has insisted that the President should be elected first, and the nomination of a new judge should wait until that happens.

A “dramatic showdown” is coming, according to one commentator on Fox News.

One of the complications that will come into play - given the fears that Trump may not accept the result of the vote on 3 November - is that the Supreme Court may be called on to adjudicate (as it was in Bush v Gore in 2000, when the Court, by a 5-4 majority declared George W Bush to be the President-elect).

But an eight-member court holds out the prospect of a four-four split, which presages a constitutional nightmare. That will give an added incentive to the Trump White House to replace RBG as soon as possible.

Trump’s pick is certain to add to the conservative majority on the court that predated RBG’s death. 

This new majority of six conservative judges in a nine-member bench could significantly alter the American legal landscape for decades to come, given that under the US Constitution, Supreme Court judges are appointed for life - and in the American system life means life, which is why RBG was still on the Court at the age of 87.

President Trump already appointed Neil Gorsuch in 2017 and Brett Kavanaugh in 2018. Getting to appoint a third judge within the four-year span of one term in the White House is highly unusual. 

Decisively tilting the ideological balance of the court to the right - with implications for reproductive rights, voting rights, protections from discrimination, decent healthcare for millions of vulnerable Americans, and even for the powers of the Presidency itself - could well be the lasting legacy of the Trump presidency.

As for Ruth Bader Ginsburg, her legacy, particularly as a spirited champion of women’s rights, is already part of American legal history.

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