Ruth Bader Ginsburg, 1933- 2020: RIP… America
Ruth Bader Ginsburg’s death sets in motion a battle for the future of the Supreme Court, the rule of law and the concept of an independent judiciary. It will be a battle without a victor, and American democracy will be the loser.
Throughout her life, Bader Ginsburg (aka, the Notorious RBG) was the embodiment of how the rule of law, manifested through the vehicle of the Constitution of the United States, could (and should) serve the interests of the American people by ensuring that the playing field that is American society was as level as possible. Whether one agrees with her politics or not, RBG’s defense of the constitutionally based principles of individual liberties and freedoms was the personification of what the judicial process in America should be about.
RBG’s death is not expected to bring about the kind of somber celebration of life and legacy that she deserves. Nor will it give pause to the self-destructive processes underway in the US today, which would allow those on both sides of the political spectrum – who through their actions destroy that which they claim to defend – to take a time out and reflect on the consequences of their actions.
Instead, her death has triggered a political fight over her succession that will deepen the fractures in American society, leading to the kind of reactions that are the antithesis of the rule of law that RBG so passionately fought to defend. That the death of a woman whose life embodied the hope and promise of America threatens to be the cause of its ultimate demise is a tragic irony.
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America’s current predicament was foretold more than 230 years ago, at the conclusion of the Constitutional Convention in 1787. It is said that Benjamin Franklin, a delegate, visited the home of Elizabeth Powel, the wife of the Philadelphia mayor, Samuel Powel. Mrs. Powel asked Franklin, “Well, Doctor, what have we got, a republic or a monarchy?” to which Franklin famously replied, “A republic, if you can keep it.”
The story doesn’t end there, however. Powel responded, “And why not keep it?”
“Because,” Franklin said, “the people, on tasting the dish, are always disposed to eat more of it than does them good.”
So, the political gluttony, in the form of the accumulation of unchecked power, has every chance to become the death knell of American democracy. RBG’s death, relatively speaking, merely set the table for a meal that has been a long time coming.
On the surface, the political fight over RBG’s succession is about process. Should a sitting president be able to execute his constitutional prerogative to nominate a candidate to fill a vacant Supreme Court seat on the eve of a national election, where, if the outcome is detrimental for the incumbent, a completely different candidate would be put forward by the victorious challenger?
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One need only listen to the words of current Chairman of the Senate Judiciary Committee Lindsey Graham back in 2016, when he opposed the confirmation of Merrick Garland as a Supreme Court judge. Discussing a Senate rule stating that a president in the final year of his or her current term in office should have to await the outcome of the election, reserving the nomination for the victor, Graham noted that the rule could come back to haunt a future Republican president, stating that “[Y]ou could use my words against me, and you’d be absolutely right.”
Graham made those comments some six months before the 2016 election. That was too short of a period, Graham and other Republican held, to justify President Barack Obama exercising his constitutional duty to nominate a candidate for an empty Supreme Court seat. Today, with the passing of RBG, President Donald Trump has less than two months to do the same. Hypocrisy does not even begin to define the Republican stance in supporting Trump.
In the corrupt universe of American politics today, however, hypocrisy is the coin of the realm. This is especially true when it comes to the US Congress, which long ago stopped advocating for the American people and constitutionally protected individual rights, and instead took up the banner of monied corporate interests. That this corruption would extend to the Supreme Court was only natural – while Article III of the Constitution established the federal judiciary, inclusive of “one supreme Court,” it left how this court would be organized up to Congress.
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The struggle between Congress and the Supreme Court has been ongoing since the birth of the United States. The self-appointed power of judicial review, where the Supreme Court, through its 1803 decision in Marbury v. Madison, determined that it had the ability to declare a legislative or executive act in violation of the Constitution, is in and of itself not a constitutionally mandated power. Rather, it represents the Supreme Court’s interpretation of the Judiciary Act of 1789, which was determined by the justices to be contrary to Article VI of the Constitution, which established the Constitution as the supreme law of the land.
On the surface, judicial review would appear to be the ideal power for the third branch of government, allowing for the appropriate checks and balances between the ostensibly three separate but equal branches of government to occur. This is not, however, how the Constitution defined the role of the Supreme Court, but rather how the Supreme Court, with the consent of Congress, interpreted its own role. Over the years, Congress and presidents have sought to shape the Supreme Court in a manner which best suits their respective political interests, and not the interests of the American people, with the Court itself caught in between.
If Marbury v. Madison saw the birth of an ostensibly independent Supreme Court, Citizens United v. FEC witnessed its demise. This 2010 decision found that the prohibition of all independent expenditures by corporations and unions violated the First Amendment’s protection of free speech, freeing labor unions and corporations to spend money to directly advocate for or against candidates for elected office. RBG foretold the detrimental impact Citizens United would have on American democracy when she observed, “I think the notion that we have all the democracy that money can buy strays so far from what our democracy is supposed to be… I think members of the legislature, people who have to run for office, know the connection between money and influence on what laws get passed.”
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Left unsaid by RBG was the corrupting influence this decision would have on the Supreme Court itself, pushing it to act at the pleasure of Congress. RBG’s death has unleashed the horrible consequences of Citizens United, where a Congress more beholden to the corporate interests that have bought and paid for its membership have engaged in an existential struggle for the future makeup of the Court with absolutely no regard for the will of the people as expressed through their only vehicle of empowerment – a free and fair election.
The Republicans see RBG’s death as an opportunity to seize absolute control of the Supreme Court for the next two or three decades, while the Democrats see the social programs they have fought to instill in the fabric of American society since the 1960’s at risk from the same. In short, RBG’s passing has defined an ideological battlefield – the Supreme Court – that both political parties see as constituting an existential struggle for the future of the United States.
In shaping the fight for RBG’s seat in such stark terms, Republicans and Democrats have ensured that, regardless of the outcome, half the country will feel disenfranchised by the result. Having politicized the Supreme Court, Congress has undermined the public trust and confidence in the very concept of the rule of law that underpins the American democratic experiment. In short, the battle for RBG’s seat represents the end of the American dream.
Regardless of the outcome, there can be no winners – just losers. The US will continue to exist, but in name only. The vision of our founding fathers will have been squandered. Paraphrasing Benjamin Franklin, we had a republic, but we could not keep it.
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