Justice Ruth Bader Ginsburg’s Legacy as a Justice and What That Reveals About our Broken Supreme Court
By Eric Segall
Justice Ruth Bader Ginsburg was a remarkable woman both personally and professionally. Way ahead of her time, she championed women’s rights and changed American history for the better. Warm, caring, and funny in her private life while also fearlessly fighting for a better and more just society as a lawyer, judge, and justice. She will be sorely missed.
At this moment in America’s history, however, we should also pause to recognize that as a justice, Ginsburg was a partisan who for more than a quarter of a century voted her politics, beliefs, and values regardless of prior law. In that regard, the only difference between Justice Ginsburg and Justices Thomas and Alito, when it comes to their Supreme Court careers, is that Ginsburg did not hide her politics behind the false veneer of originalism, and that difference matters. But what matters more is recognizing that this remarkable woman, when handed largely unreviewable power for life, did what just about everyone would do as a Supreme Court Justice--vote her preferences.
On virtually every major social issue litigated since 1993 (leaving aside criminal procedure cases), Ginsburg voted liberal. These issues included abortion, affirmative action, gay rights, the reach of employment discrimination laws, gun rights, separation of church and state, and campaign finance reform, among many others. Just as folks on the left, including me, have criticized Justices Thomas and Scalia for finding in the Constitution’s original meaning all the political results they favor, so should we criticize Justice Ginsburg for finding in her living Constitution all the political outcomes she would have preferred had she been voting on them as an elected politician, not a justice.
There have been justices such as Byron White, David Souter, Sandra Day O’Connor, and Anthony Kennedy who would swing back and forth between liberal and conservative results, but that is because of the right of center or left of center political views those justices held. Sometimes Supreme Court Justices have particular issues they care deeply about, which may not align with their party affiliations. Justice Kennedy was devoted to gay rights, for example, and Justice Breyer sometimes votes conservatively on criminal procedure issues, but again the explanation for those rare deviations is all about values and politics not text, history, or precedent.
The Supreme Court as an institution is broken because of a perfect storm of factors--including the difficulty of amending the Constitution to overturn the justices’ decisions, a long tradition of aggressive judicial review in country-changing cases, the imprecision of many of our most important constitutional rights-protecting provisions, and the reality that no other democracy on earth gives largely unreviewable power to governmental officials for life for a reason: power corrupts and power for life corrupts even more.
Because our Constitution is so hard to amend, making structural changes to the Court is difficult. But it is not impossible. A good start would be legislation limiting the justices to 18-year terms and then allowing them to sit on the lower courts. Other ways the Court’s power could be limited include legislation stripping the Court of jurisdiction and altering the retirement benefits of the justices to incentivize them to not serve too long.
Justice Ginsburg’s death will, of course, greatly affect the last five weeks of the upcoming election. But this election should be about the serious crises facing our country caused by climate change, the pandemic, racial injustice, and our economic woes. The election should not be about who gets to serve on a broken institution that divides our country like no other. Yet, until we turn down the stakes on who gets to choose Supreme Court justices and the authority we delegate to those justices, the Court will play an oversized role in our elections and our country.
Ruth Bader Ginsburg’s life should be celebrated. Her career inspired millions of women of all ages in countless ways. But even her character and integrity could not overcome the temptations that come with life tenure and unreviewable authority. The Constitution is neither liberal nor conservative, Democratic or Republican. It is a blank slate that Supreme Court justices use to impose their preferences on the rest of us. There has to be a better way.