Graphic by Anjali Rao-Herel ‘22
By Katie Goss ’23
Staff Writer
On Sept. 18, Supreme Court Justice Ruth Bader Ginsburg passed away after her battle with metastatic pancreatic cancer. Ginsburg had served on the court since she was appointed by Bill Clinton in 1993. At the time of her appointment, she was only the second woman to have served on the court. Before that, she had been appointed by Jimmy Carter in 1980 to serve on the U.S. Court of Appeals for the District of Columbia Circuit. A majority of her legal career was spent advocating and arguing for gender equality and women's rights.
“When I found out that she [Ginsburg] died, I didn't truly believe it,” Briana Sapini ’23 said. “My mom was the one who told me, and when she told me that RBG died, she acted like it was a death in the family. After I got over the initial shock that she was dead, my concern for our future increased.”
“It's clear that the death of Justice Ginsburg has resulted in both grief and fear for many students and community members,” said Maggie Micklo ’21. “I know I've been grieving both the loss of RBG as a symbol and trailblazer for the rights of many marginalized communities and the loss of a more left-leaning voice on the Supreme Court.”
Ginsburg was given the famous nickname “The Notorious RBG” over Tumblr by Shana Knizhnik, who was a second-year law student at New York University at the time. The name was a play on the New York rapper Biggie Smalls who went by “The Notorious B.I.G.” Knizhnik gave the nickname after Ginsburg’s dissent in the case Shelby County v. Holder, which found Section 4b of the Voting Rights Act of 1965 unconstitutional and in turn invalidated Section 5. Section 5 prohibited districts fitting the criteria from Section 4b from changing their election laws and procedures without first getting federal authorization. Section 4b said districts that had a voting test as of Nov. 1, 1964 and less than a 50 percent turnout rate for the presidential election that same year were eligible districts due to their history of voter discrimination.
The nickname stuck with her, and, as she grew more popular with those interested in the legal happenings in the U.S., she also rose to the status of a popular cultural icon in more liberal circles. She stood up for not only women's rights, but for the equality and rights of other groups discriminated against.
On Sept. 20, shortly after Ginsburg passed, the Women’s College Coalition, which includes Mount Holyoke, put out a statement on their website.
“Ruth Bader Ginsburg … was a leader whose words and actions changed the lives of women across generations. She changed our lives — and the lives of our alumnae, our students and our colleagues,” the statement read. “Ruth Bader Ginsburg in life — and now in death — reminds us of the incredible value of women’s education.”
The WCC statement said that Ginsburg “claimed” rather than “received” an education. She advocated for the value of women in the workplace, especially in leadership or higher-up positions. The ACLU Women’s Rights Project, founded by Ginsburg in 1972, is known for taking the case of Reed v. Reed to the Supreme Court. The court ruled in favor of the ACLU on the grounds that administrators of estates cannot be based on sex or favor men over women. She is also recognized for her rulings in the cases of the United States v. Virginia, which allowed women to attend the previously all-male Virginia Military Institute, and Ledbetter v. Goodyear, which had to do with gender discrimination in regard to salary.
However, Ginsburg’s voting record wasn’t always consistent with these liberal beliefs, specifically in cases and topics surrounding Indigenous rights and racial injustice. In her Reed v. Reed case, she credited her argument to African American civil rights attorney, Pauli Murray, in recognition of the influence of Murray’s legal strategies. However, in more recent times, she was not as outspoken on issues such as Black Lives Matter, and even criticized Colin Kaepernick on his protest of police violence by kneeling during the national anthem. Recently, she had voted in favor of most Indigenous cases in the Court, such as her opinion in the 2016 U.S. v. Bryant case, which was about using tribal court convictions in order to enhance federal sentencing for repeated domestic violence offenders. However, in the past, she had written many opinions that were not in the best interests of tribes. Her opinion written for the case City of Sherrill v. Oneida Indian Nation of New York was said to be “incredibly dismissive of tribal prerogatives,” according to The Marshall Project. “Some of the language in that opinion is considered some of the more overtly racist language in its challenge and skepticism of tribal interests.”
Although she later apologized for these decisions and has apologized for other statements or rulings she agreed with in the past, it is still evident that Ginsburg herself was not always reliably liberal in her rulings. Additionally, it shows that justices on the court can grow and change in some of their views over time.
Ginsburg’s death has left yet another open seat in the court that President Donald Trump may be able to fill before Election Day. During his term in office, Trump has already appointed two Supreme Court justices. Now he may get the opportunity to appoint a third right before the election. The timing of this procedure has raised controversy and concern across the nation.
The Court was at a 5-4 ratio before Ginsburg’s death, with Republicans having the majority. However, since there was only one more Republican than Democrat justice, rulings could swing either way should a typically conservative justice decide to vote more liberal in a decision. If Trump elects another nominee, he would tip the highest court into a 6-3 ratio.
“With [Ginsburg] being dead now, instead of after the election, it has destroyed any hope I had, because Mitch McConnell has said that he would approve Trump’s nomination even if it was one day before the election,” Sapini said. “Now that [a] 6-3 Republican majority can become a reality, it makes me scared. With that majority, there is no hope that [a] decision that could help minorities, the LGBTQ community or women’s rights will happen.”
With Amy Coney Barrett being Trump's pick for the open seat, this decision, if finalized, would be the first time since Ginsburg herself was nominated for the Supreme Court seat that there would be a majority shift in the court.
Barrett is a current judge in the 7th U.S. Circuit Court of Appeals known for her conservative views. As a graduate and former professor of the University of Notre Dame, she has expressed that she is a deeply religious Catholic; however, she has said that it does not affect her work as a judge. She is regarded as a conservative in her political views and has voiced conservative opinions on issues such as health care and abortion. However, Barrett has not always voted in the conservative favor. In Morales v. Barr, which was a deportation case in regard to immigration laws, she ruled against the Trump administration.
Although Barrett has spoken about her opposition to abortion rights, she was quoted in CNN as saying she thought it was “‘very unlikely at this point that the court is going to overturn (Roe v. Wade),’ adding that ‘the fundamental element, that the woman has a right to choose abortion, will probably stand.’”
Barrett complimented Ginsburg’s success as a woman in her time at a White House ceremony. “Ginsburg began her career at a time when women were not welcome in the legal profession,’ yet ‘she not only broke glass ceilings, she smashed them,’” CNN reported.
Nevertheless, Barrett has continued to rule in mostly conservative outcomes and is still positioned to overturn the Supreme Court majority to be conservative as a whole if voted in.
“The fear is real and valid. The stakes are so high, and the nomination of Amy Coney Barrett to replace Justice Ginsburg will result in decades of right-wing decision-making from the court,” said Micklo. “I fear for reproductive access, DACA recipients and the millions of people who benefit from the Affordable Care Act.”
David Cole wrote in a Washington Post article, “With the exception of [Clarence] Thomas, all of the current justices replaced justices who roughly shared their ideological commitments. … In essence, each appointment was one-for-one. If … a committed conservative replaces a committed liberal, the new justice will fundamentally alter the court’s ideological balance.”
Controversy surrounds whether a president should get to fill a Supreme Court seat so close to Election Day. A similar situation occurred in 2016, before the previous presidential election, with President Barack Obama. Justice Antonin Scalia had passed away in February of that year. Obama had picked Merrick Garland to fill that spot before his time was up in office but was quickly shot down by Mitch McConnell. Almost immediately after Scalia’s death was announced, McConnell was vocal about not letting the current president pick the justice. Since it was so close to the election, he voiced that it was the next president’s decision to make.
Quoted in an NPR article, McConnell said, “Of course the American people should have a say in the court’s direction. It is a president's constitutional right to nominate a Supreme Court justice, and it is the Senate's constitutional right to act as a check on a president and withhold its consent.”
According to a poll cited in a CNBC article, a majority of Americans in swing states think whoever is elected president in the upcoming election should get to fill the spot.
“52 percent of voters in so-called swing states want the winner of the election to name the next high court justice. … And just 37 percent of voters nationally think Trump should be able to nominate a justice if he loses. … Fifty-seven percent said he should not be able to do so,” said the CNBC article.
However, now that Trump is in the same position as Obama was in 2016, Republicans in the Senate, including McConnell, agree that Trump should get to pick a nominee for the open seat. Mitt Romney was quoted in the same CNBC article, confirming he would vote for Trump’s nominee.
“The Constitution gives the President the power to nominate and the Senate the authority to provide advice and consent on Supreme Court nominees,” Romney said. “Accordingly, I intend to follow the Constitution and precedent in considering the President’s nominee. If the nominee reaches the Senate floor, I intend to vote based upon their qualifications,” he added.
When asked about this issue, Micklo said, “I can only hope that voters will hold their Republican senators accountable for the hypocrisy of pushing through a nominee so close to an election after refusing to consider a nominee in the year leading up to the 2016 election.”
There has been some discussion that if Joe Biden wins the election, Democrats will try to “pack” the court. Better known as “court-packing,” this is when you add more seats to a court in order to sway it in favor of the current partisanship. Because the Constitution does not specify the number of seats on the high court, it is left up to the Senate to decide.
“I think it's definitely something worth talking about. The size of the court is both set by law and tradition, but not constitutional law,” said Adam Hilton, a professor of politics at Mount Holyoke. “There have been times, especially in very tumultuous political times, like the Civil War and [the] Reconstruction [era], where the size of the court was manipulated. There were both expansions and contractions, to try and play to certain partisan advantages.”
Hilton explained that, although other democratic countries have similar courts, appointees do not get to serve a lifetime term on them. The position is typically one term with a set amount of time, and once that term is up, the appointee must retire.
“But if [Supreme Court justices] prove hostile to things that we need to do, like address climate change [or] address inequality, and the Democrats have significant majorities to do it, … I wouldn't call it ‘packing,’ I would call it ‘Supreme Court reform,’ [and that] is probably worth talking about,” Hilton said.
Supreme Court justices are not always predictable in their decisions. There have been many instances when a justice who votes in one manner decides to vote in a completely different outcome than usual, as seen with Ginsburg’s track record.
Nevertheless, she was not one to back down from her personal views, and made great strides not only as a woman in her time, but for women everywhere to follow in her footsteps.
“Justice Ginsburg revolutionized the way many people view the Supreme Court. Instead of an out-of-touch group of technocrats, the court became a subject of feminist popular culture, with imagery of ‘The Notorious RBG’ everywhere in liberal circles,” Micklo said. “I worry that this attention to the court will fade, particularly from the left.”
Ginsburg was the first woman to be granted the honor of lying in repose at the U.S. Capitol and is buried at Arlington National Cemetery. Her last wish was not to be replaced “until a new president is installed.”