Ruth Bader Ginsburg, one of the most respected and revered US Supreme Court justices in recent decades, has died, leaving an immense void in the lives of untold millions of Americans who were captivated by her life story, supportive of her jurisprudence and scholarship, and enthralled by her presence, persona and notoriety ( she even became the iconic "Notorious RBG"). In the highest tradition of Jewish faith, she was a woman of valour, with a career spanning from being a mother and homemaker to a legal superstar who reached the pinnacle of legal stature. RBG was a woman of consequence.
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Justice Ginsburg worked in a building on whose pediment are inscribed the words "Equal Justice Under Law". This is what she sought for all Americans, for all women, for all people of all colours and from every walk of life. She yielded to no one in her fight to ensure that women had freedom of choice over their bodies, that all citizens had full and equal access to the voting booth, that power - governmental, business and individual - was fully accountable to the rule of law, that democracy was not polluted by greed and money. She was faithful to her principles and purpose to her last day in this life.
It is a terribly sad measure of our times that the death of a Supreme Court justice would, within a handful of hours, be conflated into the bitter political wars over the future of the Supreme Court that will shape the contours of the country for years to come.
The current wave of politicisation of the court the United States is enduring can be dated from the decision on abortion in 1973, Roe v Wade. It was underscored by the Court's 5-4 ruling in Bush v Gore that decided the 2000 presidential election, and then supercharged with the decision in Citizens United (2010) that removed, by equating the spending of money with the expression of speech under the first amendment, any control on the expenditure of special interest money in US political campaigns. The court also strongly affirmed gun rights under the second amendment in District of Columbia v Heller. All these decisions have unleashed waves of political forces throughout the country.
All three branches of government under the US constitution are now on the ballot.
The court is so important because it is the place of judgment in American society on these highly emotive issues - issues spawned in the words of the constitution.
Through deaths and retirements over the past few years, the Associate Justices of the court up until Justice Ginsburg's death have been evenly split 4-4 between conservative and progressive wings, with Chief Justice John Roberts, a moderate conservative, stepping in to the role of swing vote and shaping majorities he deems best to craft. The two vacancies filled by President Trump were for justices from the conservative wing - and he replenished those seats with like-minded successors, thereby maintaining an uneasy balance.
Even though the election is but 45 days away, if President Trump can replace Justice Ginsburg now, he can forge a clear 5-3 conservative majority among the associate justices - not dependent on the vote of a Chief Justice who affirmed Obamacare, gay rights in the workplace, and a president's being subject to certain legal processes seeking documents he controls - no matter how America votes in November. If Trump is re-elected, given the ages of several justices (liberal Stephen Breyer is 82), there may be other liberal vacancies and older conservatives (conservative Clarence Thomas is 72) who could be replaced with younger conservative jurists.
The Republican leader, Senator McConnell, has said - on the night Justice Ginsburg died, and right after it became known that one of her last statements was "my most fervent wish is that I will not be replaced until a new president is installed" - that he wants President Trump to fill the Ginsburg vacancy now. And yesterday, President Trump stated his intention to put forward a nominee and seek her or his prompt approval.
The backstory to this was written in February 2016 when, following the sudden death of conservative justice Antonin Scalia, President Obama nominated a distinguished jurist seen as likely to garner cross-party support, Merrick Garland. But his confirmation was blocked by Senator McConnell, who said that the Senate should not act in a presidential election year: "The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country. So of course, of course, the American people should have a say in the court's direction."
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But not this election year.
No confirmation of a Supreme Court justice so close to an election has ever been held before. Conservatives will see a chance to cement a strong conservative majority on the court. Democrats will see the urgency of defeating Trump and saving the Supreme Court.
This can help Trump by increasing the urgency felt by evangelicals to stick with the President, further cementing his base.
From the point of view of Joe Biden, moving to confirm a new justice before a new president is elected is a gross miscarriage of the democratic process that can only galvanize Democratic voters now seeing the real threat of a shift in the court that would endure for decades. This can help Democrats by spurring young voters and women to come out for Biden. This can also help Biden with voters in the suburbs, who are not happy with Trump's extremism.
The most likely outcome at this moment is for Trump's nominee to undergo initial Senate consideration, with a vote on confirmation deferred until after the election.
With her last breath, Justice Ginsburg has transformed the US election in November into one not only for the presidency, not only for the Congress, but also for the future of the Supreme Court as well. All three branches of government under the US constitution are now on the ballot.
- Bruce Wolpe is a senior fellow at the United States Studies Centre at the University of Sydney. He has worked on the Democratic staff in the US Congress and served on the staff of former prime minister Julia Gillard.
