Saturday, September 19, 2020

RBG From the Point of View of the Universe

 by Michael C. Dorf

"President Trump’s nominee will receive a vote on the floor of the United States Senate." -- Majority Leader Mitch McConnell in a statement released yesterday that pivoted from gracious praise of Justice Ruth Bader Ginsburg to doublespeak about how 2020 is supposedly qualitatively different from 2016.

"[T]he funeral baked meats [d]id coldly furnish forth the marriage tables." -- Hamlet (in Act I, Scene II), chafing at how soon after the death of his father the king, his mother, Queen Gertrude, remarried the new king, Hamlet's uncle Claudius.


It was inevitable that the news cycle would not pause to reflect on the extraordinary career and life of Justice Ruth Bader Ginsburg before turning immediately to a discussion of whether there exist at least four Republican Senators who are not utter hypocrites. Still, I might have thought that savvy-if-evil politicians like Senator McConnell would have waited at least 24 hours before announcing their schemes for how they intend to reshape the post-RBG Court, if not out of common decency then perhaps because appearing to take time to grieve would be good politics. Call me naive.

I shall no doubt have much to say about whatever comes next, but for today I want to take a moment to celebrate Justice Ginsburg in broader perspective. I shall do so using a trope that my father, who also died in this annus horribilis, often invoked. My dad was a couple of years older than Justice Ginsburg and, although they did not know each other, moved in some of the same circles. That included overlapping for a couple of years at Cornell when she was an undergrad and he was a graduate student here.

My dad studied philosophy and liked to use an image from the English philosopher Henry Sidgwick: the point of view of the Universe. Sidgwick was a utilitarian who embedded that turn of phrase in a claim that one oughtn't to favor one's own interests over those of others (except to the extent that one knows one's own interests and is better able to advance them than to advance those of others). My dad and Justice Ginsburg were both notable for putting the interests of others -- both those close to them and strangers -- ahead of their own interests in many ways, but my dad, who knew what Sidgwick meant, liked to use the term in a different way. When dealing with one of life's minor or not-so-minor setbacks, he would say that it helps to see it from the point of view of the universe. He used the phrase less as a utilitarian and more as a stoic (in the original sense, not in the colloquial sense of joyless).

RBG was undoubtedly a stoic too. Given her repeated triumphs over cancer, it was tempting to see her as a kind of benevolent version of Rasputin: unkillable. But RBG did not think of herself that way. She repeatedly accepted the cards she was dealt and played them more successfully than one would think possible, by applying her enormous intelligence, sound and sensitive judgment, and phenomenal work ethic.

I did not know RBG nearly as well as those of my friends who clerked for her. I clerked at the Court when she was still on the DC Circuit. Still, I like to think of myself as connected in some way. As a teacher of two subjects that were dear to her (civil procedure early in my career and constitutional law throughout), I studied and assigned her many important opinions and dissents. We shared affiliations with the same four universities (Cornell, Columbia, Harvard, and Rutgers). And I did have the good fortune to talk to her on occasion. I'll relate one.

Some years ago, we were on a panel together. I don't now remember the topic, but in the course of my remarks I repeated the conventional wisdom that RBG had cleverly chosen a litigation strategy of bringing to the Supreme Court claims for sex equality with male plaintiffs. Unoriginally, I said that this was clever because such cases both appealed to the then-all-male members of the Court and underscored how legal distinctions based on sex that relied on stereotypes disadvantaged everyone, regardless of their sex.

When it was her turn to speak, Justice Ginsburg corrected me. I don't have a transcript, but I remember her saying something very much like this: Michael, you know everyone says that, but it isn't true. We had plenty of female plaintiffs. It just happened that in a few of the key cases the plaintiffs happened to be men.

I was happy to be corrected and have no reason to doubt that Justice Ginsburg was accurately recounting her triumphs as a lawyer. And yet, I think she sold herself short. Her legacy includes the proposition that sex-role stereotyping--regardless of who nominally benefits--is the central evil at which the sex equality norm takes aim.

We scholars and pundits make much of the fact that Justice Anthony Kennedy, a conservative, authored all of the Court's leading gay rights cases, and that Justice Gorsuch wrote and Chief Justice Roberts joined the Court's Bostock decision this past term, finding that sexual orientation and gender identity discrimination are forms of sex discrimination. All three deserve the praise they have received for those opinions and votes. But let's not overlook what is taken for granted--that of course the liberal justices, including RBG, would vote for the LGBTQ+ plaintiffs in such cases. And they did.

Well, isn't that just what it means to be a liberal? Sure, it is now, but it wasn't always that way. Long after Stonewall, the Supreme Court, including Justices we regard as liberal, didn't see LGBTQ+ rights as continuous with other civil rights struggles. That only changed beginning in the 1980s, when four Justices dissented in Bowers v. Hardwick. It changed, I want to suggest, in no small part because of how RBG had changed the conversation. It would be another 17 years before the Court overruled Hardwick, but the groundwork had been laid much earlier.

RBG has been justly called the Thurgood Marshall of the women's rights movement. She may also rightly be called the Charles Hamilton Houston of the LGBTQ+ rights movement--as one whose initial work was crucial to what came after.

Was it all for naught? If four or more Republican Senators cannot be found to balk at the hypocritical plans of Mitch McConnell, Neil Gorsuch will become the median Justice. If Trump somehow wins re-election, that position could next be held by Brett Kavanaugh or even someone to his right. Will a Court that moves far away from Justice Ginsburg's views on abortion, affirmative action, campaign finance regulation, capital punishment, guns, and so much much more mean the end for her legacy?

No. For one thing, the Supreme Court is a lagging indicator of public opinion. On the question that mattered most to her--sex discrimination--there is unlikely to be more than a little backtracking at the margins.

More importantly, we ought not and do not measure anyone's accomplishments by the failures of their successors. We remember Marcus Aurelius as the philosopher-king. No one thinks less of him because later Roman emperors did not follow his path, much less because Rome eventually fell.

Some day the American Republic too will be no more. Maybe it will take a thousand years or perhaps it will happen on and after November 3 of the current wretched year. From the point of view of the universe, it matters hardly at all.

If, as Keynes said, in the long run we're all dead, what then, does matter? It is not my place to offer a definitive answer to a question with which the greatest minds in history have struggled. I'll conclude by saying that I've long thought the best answer is a kind of existential one that the best-lived lives exemplify. Here is how Ronald Dworkin put the point in one of his last essays: "It is important that we live well," he said, "not important just to us or to anyone else, but just important."

RBG lived well. She worked extremely hard. She served her country with courage and determination. She stood up to power on behalf of the powerless. Those of us who take inspiration from her life will do what we can to build on her accomplishments, but nothing that comes next can change or undercut what she did.


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  2. I'd note too that one aspect of the success of the feminist movement that she worked so hard to advance are women on the bench of a variety of ideologies. A Justice Amy Coney-Barrett might not be who I want (not for this seat; I rather her than Kavanaugh). But, it is a sign of advancement all the same.

    To labor my presence, it interests me that she was seen as a "judicial restraint liberal" (again to cite Greenhouse) on the court of appeals. That might deserve more attention than it receives.

  3. Like you, I naively hoped McConnell could issue an initial statement about Justice Ginsburg’s death without feeling the need to remind us of his belief in the naked exercise of power above all else. In our defense, even Trump was able to keep his focus on Justice Ginsburg in his remarks when reporters informed him that she had died. How foolish that we thought McConnell could meet Trump’s lofty standard of decency.

    Although I am happy about the result and Gorsuch’s vote, it’s too bad that Justice Ginsburg wasn’t assigned the decision in Bostock. It would have provided one last opportunity for her to articulate the sex stereotyping principles that she advanced throughout her career, and that best justify the outcomes in the two cases before the Court.

  4. May RBG Rest in Peace. :( She was certainly a great judge and SCOTUS Justice. :(

    In regards to the "Biden/McConnell Rule", I do wonder whether Republicans have actually made such an emphasis on the last year of a US president's term in different circumstances. For instance, if the GOP would have recaptured control of the US Senate in 2012 (rather than in 2014) while Barack Obama would have won reelection, and Justice Scalia would have died in 2013 (rather than 2016), would the GOP have still argued that Obama should not be able to appoint any new SCOTUS Justices even though he would have still had over three years left to go in his Presidency in this hypothetical scenario? The GOP would have still been able to make such an argument, of course, but it wouldn't have been able to make this argument based on the last year of a president's term. Rather, it could have simply argued that as long as the US Senate is under the control of a different party from the US President, the US Senate has the categorical right to refuse to consider any new US presidential nominees for SCOTUS. Such a rule would have, of course, also allowed the GOP to replace Ginsburg this year without making it hypocritical for them to block Garland back in 2016.

    @Joe: Frankly, I suspect that Trump might be more inclined to choose someone such as Barbara Lagoa rather than Amy Coney Barrett for SCOTUS this time around. It might be harder for Democrats to oppose a Hispanic woman for SCOTUS--especially considering Biden's own polling problems with (some) Hispanics. Plus, Amy Coney Barrett appears to be too conservative and thus I don't know whether or not she can actually get confirmed in the current US Senate.

  5. Thanks much to Michael for this post on a non-weekday. It did not disappoint.

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  7. I admire RBG, as I think everyone does, although I didn’t care for some of the hagiography that attended her later years. I do hope that her memory is not used as a spur toward extremist proposals—court reform, “court packing,” etc.—on either side which I don’t think are consistent with her worldview. I think basically she was a petty mild person who was radical when the times demanded it: not a bad model for lawyers, or just people, overall.

  8. You mean a "pretty mild person", correct? I'm pretty sure that the use of "petty" instead of "pretty" was a typo here.

    As for what RBG would have thought about court-packing in the event of the GOP successfully ramming through a replacement for her over these next couple of months, who knows, right?

  9. There are no gentleman’s rules. The rules are enshrined in the Constitution. McConnell blocked the vote on Garland because under the Constitution he could. He may or may not have the votes to push through a Trump nominee. But these are the rules; they have been written in the Constitution; and it is crazy and reckless to claim that some other set of rules applies. Outrageous and irresponsible.

  10. Let’s put this democratic principle another way: McConnell blocked Garland because the voters who elected him wanted him to block it. He will try to push through a Trump nominee because that’s also what his constituents want. Why, in a democracy, is any other explanation required, and why should this simple explanation be treated as illegitimate rather than exalted for what it is? It is literally democratic. Complaints about the Senate or electoral college giving outsized political power to people in small states are just complaints about the basic provisions of the Constitution. If you think the Constitution itself is illegitimate for this reason then say that. The counter is that obviously your side controls everything other than these few political levers — every university, every major media outlet, almost every major corporation (except a few engaged in fossil fuels or that still employ Americans), Silicon Valley, Wall Street, the NGO complex, the national security establishment, think tanks, etc.

  11. The Constitution, if there are votes, can include Congress in a day confirming a replacement and then expanding the Court by five members. And, then confirming them. This could have done by the Republicans as a package with the Gorsuch nomination.

    It's quite possible, surely, to find a problem with a specific constitutional provision. I don't know how "basic" any one thing here is. The Constitution is a bunch of things and it is ideal to use the various parts in various ways so there is a balance.

    The "counter" is not about "your side controls everything" either. I note that this is after talk of some raw power to do something.

    As to McConnell, the voters elected Obama too. He, given a Republican Senate, factoring that in, nominated an older moderate person multiple Republicans said in the past was a good choice. Garland being over 60 matters since that can translate in over a decade less time on the Court than Gorsuch. Then, there was no hearings or anything. This was problematic taking everything as a whole as a matter of good constitutional behavior. Since "we have the power" is not all that means. It is a united whole.


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