“Turning Over In Her Grave” - RBG and the Future of SCOTUS

By Moksha Akil ‘22

With the death of Ruth Bader Ginsburg comes a furious debate about who will replace her. Before we have that debate, though, it’s important to understand just how impactful her work was.

 Before joining the Court, Ginsburg was a lawyer and professor. In 1971, she established the Women’s Rights Project of the American Civil Liberties Union, which continues to litigate gender discrimination cases. Of course, this work would ultimately make her famous in legal circles—women’s rights was always her prime legal cause, and her work in this arena is well-known.

Her casework didn’t solely focus on “women’s issues,” though. Ginsburg found herself working on a variety of economic and social rights cases.  For example, according to NPR, Ginsburg “liked Social Security cases because they illustrated how discrimination against women can [also] harm men.” Weinberger v. Wiesenfeld, a Social Security case from the seventies, illustrates this well. In it, Ginsburg represented a man who wasn’t able to receive Social Security benefits after the death of his wife, the breadwinner, because only widows could receive benefits at the time. This mode of attacking gender discrimination was a common theme throughout her career—Ginsburg exposed at every turn how gender inequality harmed everyone, men included.

Another example: in one of their first major cases together, Ginsburg and her husband took on a law regarding tax deductions for the care of an elderly person. The law stated that such deductions could only be claimed by women or widowed or divorced men. Ginsburg pursued a constitutional challenge while her husband, a tax lawyer, took a tax route. They won their case.

Even for a Supreme Court justice, her work was expansive. Ginsburg’s support for abortion rights and equal pay for women is well-known and should be celebrated, but her work for gender equality reached far beyond that. Take her impassioned dissent against Burwell vs. Hobby Lobby, for instance, a decision which “[denied] legions of women who do not hold their employers’ beliefs, access to contraceptive coverage,’’ according to NPR. Or look at Ledbetter v. Goodyear Tire & Rubber Co., a decision which led to the Lilly Ledbetter Fair Pay Act of 2009. She was always a champion for women’s rights, and this was reflected in her work both with the ACLU and on the bench. It is with this legacy in mind that we must look to the future of the Supreme Court, and more specifically, to Amy Coney Barrett.

Barrett, Trump’s third nominee for the Supreme Court, has highlighted Justice Antonin Scalia’s mentorship in most public appearances since her nomination. A justice who passed in 2016, Scalia was one of the Court’s most ardent conservatives—and a foremost defender of legal originalism. The New York Times believes Barrett will follow suit. I agree.

Through and through, Barrett is inspired by Scalia’s textualist philosophy. In her terms, Barrett believes that judges do not create policy: they “must apply the law as written.” While she didn’t speak on the intentions of the constitution and simply said that we must apply the written laws, Barrett could also be seen as an originalist. Following the Constitution as written and intended by the founders hundreds of years ago. 

One place where she has applied that philosophy is to abortion rights. Many right-wing groups believe that, with Barrett’s appointment, monumental cases such as Roe v. Wade will be overturned. This would clear the path for some states to ban abortion. Judge Barrett has already voted against abortion rights on the Federal Court of Appeals, according to CNN, and once explicitly said that abortion is “immoral.”

She has also criticized the Court’s legal protection of the Affordable Care Act and believes that felons not considered “dangerous” should be allowed to own a gun. Barrett has voted to allow executions to proceed as well, even though as a Catholic she is morally opposed to it. Her philosophy is stridently conservative.

The differences between Ginsburg and Barrett are drastic.

Trump isn’t using Barrett’s nomination to better the country. As the New York Times wrote, “[The] president opted for the candidate most likely to thrill his conservative base and outrage his liberal opponents.” His goal is to simply anger the liberals as much as possible and stay relevant in the news cycle. 

His strategy here is actually remarkably immature—to replace Ginsburg, against her wishes, with a judge who holds the exact opposite views as her is tremendously disrespectful.

This Supreme Court strategy feels quite similar, frankly, to his pushing for a more “pro-American” education system—pure propaganda. At this point, Trump is trying to please his voters as much as possible, mainly to secure their votes amid all his faults and missteps. These radical proposals should be taken seriously, though, because they are serious. 

While it should be expected, I guess, that Trump replaces Ginsburg with a judge with views like Barrett’s, the fact that it is just over a month to the election should show you just how desperate he is for votes, pleasing his supporters and pushing the Republican agenda. Yes, this is what we should expect of a politician such as Trump, but as I said before, this nomination could be used to better the country in a way that he believes is necessary. But even beyond doing the right thing, which may be foreign to him, Trump’s desperation displays a lack of confidence in the election and his supporters.

Justice Ginsburg worked for gender equality most of her life and “must be turning over in her grave up in heaven, to see that the person they chose seems to be intent on undoing all the things that Ginsburg did,” Senate Minority Leader Chuck Schumer said in a statement. Schumer’s right—she would be.

 Schumer goes on to say that the nomination is a “power grab”—“a cynical attack on the legitimacy of the court.” Right again. It is blatantly obvious that Trump has another motivation besides choosing the candidate best fit for the job. Barrett’s strong conservative beliefs and willingness to criticize policies that have improved our country show how the choice is entirely political.