The Notorious RBG is Dead

Ruth Bader Ginsberg, who died today at 87 from cancer complications, was, as this outstanding NYT obit notes, a significant, direction-changing member of the US Supreme Court for a significant number of years.

Her efforts on behalf of sexual equality supported the concept that, as one writer said, “Both men and women have one principal role, that of being people.”

Justice Ginsberg dealt with numerous health issues in recent years, many of them quite serious. When it was revealed some months ago that a cancer issue had re-arisen, it was feared by many that she wouldn’t survive that hospitalization.

But survive she did, declaring, as she had before, that she intended to stay on the court — as opposed to retiring — “as long as I can do the job full steam.” She did so through the end of the session that concluded in July.

Ruth Bader Ginsberg wrote the majority opinion on many decisions and many opposing ones as well on the Supreme Court. She also was outspoken on and off the bench — first on the US Court of Appeals for the District of Columbia where she sat for 13 years, then, since being appointed by President Clinton to the Supreme Court in 1993 — in favor of seeing men and women treated equally in fact as well as in law. She was widely admired as a litigator and director of the Women’s Right Project of the American Civil Liberties Union during the 1970s and was, as The Times obit noted, “occasionally described as the Thurgood Marshall of the women’s rights movement.”

But it wasn’t just women she was arguing for: She felt men also were treated unfairly in situations such as the state-supported Virginia Military Academy’s all-male admission policy was unconstitutional: It failed to provide equal protection for the sexes under the law, and that is not, she argued, fair to either sex.

The loss of this balanced-view justice — during her confirmation hearing, Ginsberg told the Senate Judiciary Committee that her approach to judging was “neither ‘liberal’ nor ‘conservative’” — occurred just 47 days before a presidential election, which could well make the incumbent a ‘lame duck’ still possessing the power to appoint a new Supreme Court Justice.

It is reasonable to assume that President Trump will make every effort to see a new justice approved, as is necessary, by the Senate before his term expires. (Never mind that the Senate Majority Leader, Mitch McConnell, blocked a nomination by President Obama under similar circumstances.)

While Republicans won’t agree, there is much to be said for the Supreme Court having a balance, in these polarized times, with an equal number, among the nine members (including the Chief Justice, John Roberts) of left- and -right-leaning members. That’s so simply because Supreme Court decisions can have decades-long, life-changing effects on individuals and institutions in ways that, a few years down the road, may be out of sync with popular beliefs or practices — which do, of course, evolve over time.

It could be argued that McConnell had a point four years ago in refusing to advance an appointment to the Supreme Court by Obama, on the grounds that an election was imminent. If that was true then, it should be true now. And perhaps that should be written into law: That appointments of such import should not be advanced X months before a presidential election. (What’s good for one party should be good for the other!)