From Ginsburg’s era of freedoms and equality to Coney Barrett’s conservative reign of dismantling minority rights.
On September 18th of this year, Justice Ruth Bader Ginsburg of the Supreme Court of the United States, and a giant in the annals of American jurisprudence, passed away. A little over a month later, on October 26th, Amy Coney Barrett was sworn in as Justice Ginsburg’s replacement.
This jarring shift can be recognized as a part of the kickback that has followed some of the most progressive gains in the U.S: The first Black president is succeeded by a narcissistic white nationalist dead set on ushering an administration of chaos and enmity; civil rights gains face onslaughts of tactical discriminatory legislation and emboldened hate groups (as seen in the different decades of struggle against racial domination in the 60’s, 90’s to the 2010’s). Any victories on welfare system reform are rapidly seized on in order to wage new wars against the poor. Tides of progress are met with stifling and regressive political backlash. Justice Ginsburg, a tireless champion of minority and equality rights, being replaced by a staunch conservative ideologue, who is one of the most under-qualified nominees to sit on the bench, is no less part of this pattern.
There’s hardly a shortage of alarming acts that took to get Coney Barrett to the Supreme Court. Among the most contemptuous of these acts was easily the overturning of the fictive procedural rule put into place by Republican and Senate majority leader, Mitch McConnell. In a brute exercise of power, this makeshift rule was first used to deny the then-incumbent president, Barack Obama, a chance to hold confirmation hearings for his nominee to fill the vacancy left by the passing of Justice Antonin Scalia – a full eight months before the next presidential election. At the time, Republicans asserted that in the year of a presidential election, the nominee of such an important seat should be left to the president-elect of the election. South Carolina senator, and chairman of the Senate Committee on the Judiciary, Lindsay Graham, who obsequiously parroted this justification, went as far as to publicly avow that he would adhere to the same standard when and if the time came where the situation was reversed. It was hardly a surprise when the hypothetical became reality, and Graham dismissed his moral posture in favour of embracing Coney Barrett.
What is glaring here is that amidst the tumult of the election, and the countless antics from Trump and his loyal Republican base, Coney Barret’s swearing into office is disappearing into the background. This is perhaps the case because the stakes have been far greater on other fronts. Democrats have had to bitterly shift gears to focus on how to facilitate a smooth transition of power and have rallied their efforts on the next Republican stronghold: control of the Senate. Notwithstanding the urgency of these efforts, there is an imperative to not forget one of the most stinging and corrosive replacements that took place within one of the most powerful judiciaries in recent memory.
Laying bare the severity of the injury and peril caused by Coney Barret’s induction requires a revisiting of who Justice Ginsburg was and what the legacy she left behind is. Much of Ginsburg’s career was premised on tearing down what she referred to as “artificial barriers'' that created disparate social conditions for the sexes. She came to be known for her ruthlessly analytical and progressive opinions and dissents on landmark cases. Among her most notable were on the bench and as counsel are: United States v Virginia, Shelby County v Holder, and Moritz v Commissioner. As counsel in Moritz v Commissioner –a particular standout because of what scholars have scrutinized as a trojan horse for broader gender equality– Ginsburg successfully argued before the U.S Court of Appeal for the Tenth Circuit that denying men caregiver tax deductions reserved for women or widowers was a violation of the 14th amendment’s Equal Protection Clause. The case was an incisive victory that advanced the push for gender justice – only now, for the first time in the courts, gender discrimination was framed through the standpoint of a man; as a matter having adversely affecting men. And it was heard. Even more notable were her scathing dissents, like those in Shelby County, that revealed her philosophy as premised on seeing the fate of one minoritized group’s rights as tied to that of another. For Ginsburg, addressing inequalities across the spectrum required seeing the coarticulations between matters of race and gender.
In stark contrast, Coney Barrett’s legal pedigree is one laid at the feet of the late Associate Justice of the SCOTUS, Justice Antonin Scalia, whose conservative order can be best described as ideological violence masked as conservative scholarship and jurisprudence. On the heavily contested issues including health care, immigration, discrimination, and gun rights, Coney Barrett has cemented nothing short of a strict conservative record. In her academic work, Coney Barrett has bent the stare decisis doctrine –the doctrine that establishes the binding nature of judicial decisions on the outcome of future cases ruled on similar subject matter—to her conservative will. She has mounted a defence for holding a hierarchy of legitimacy among court precedents, which in effect seeks to destabilize the legitimacy and force of certain precedents. According to this legal doctrine ground-breaking cases like Brown v Board, where the supreme court struck down segregationist laws as unconstitutional, enjoy the status of being “super-precedents” over decisions like Roe v Wade,where restrictions on the access to abortion were held unconstitutional, because the latter does not enjoy the universal support of the former. Though one could easily contest any notion that anti-segregationist sentiments are universally supported in modern times, as Coney Barret would seem to simplistically assert. Along with a track record of dissents on cases challenging abortion restriction laws, she has aligned herself with anti-choice activist groups in her extra-judicial life. None of this comes as a surprise in light of Trump’s rabid commitment to filling the court with justices who will overturn Roe v Wade. There is little doubt as to the sort of Justice Coney Barrett will be.
The clash between Coney Barrett’s judicial philosophy and that of Justice Ginsburg was nowhere more salient than at her confirmation hearings before the Senate Judicial Committee. Not unlike nominees before her, Coney Barret was deft at sidestepping landmine questions that may reveal how she would rule on future cases coming before the court. When asked about her future stance on reproductive freedoms, Coney Barret had the temerity to quote what is referred to as the 'Ginsburg-rule.' A principle coined by Justice Ginsburg at her own confirmation hearing where she asserted that it was a nominee’s right to withhold a forecast of their future opinion—a position that has now become standard practice for nominees to invoke ever since. Nevermind that despite taking this stance, Ginsburg remained unwavering on her positions at her hearing that bearing a child featured so centrally in a woman’s life, that it was inseparable from her dignity and wellbeing. She derided this kind of decision left in the hands of the lawmakers as an instantiation of regarding a woman as less capable and deserving of the decision-making autonomy afforded to her male counterpart. Through invoking Ginsburg in this way, Coney Barret betrayed her character as on par with Mitch McConnell and Lindsay Graham, whose hubris in contorting the playbook to achieve their political ends belies any notion of a well-functioning democratic institution. Though, the insouciant co-option of Justice Ginsburg’s words does land as a harder blow for those who understand her legacy as under imminent threat.
Almost 48 years since Roe v Wade was decided, the ongoing attacks and efforts to abolish Roe should make observers more nervous and outraged than ever about how secure these rights are. Moreover, it is difficult to overlook the connection between nations that, in theory, have long settled the question of reproductive freedoms, and those nations where movements are gaining momentum to further keep restrictive legislation in place or to tear down hard-gained freedoms. We need not look further than Poland’s current uprising on the continent, and the severely restricted abortion laws in Latin America to see the abhorrent deviation from what has long been recognized by the international community as fundamental freedoms for women.
There is nothing more unnerving than seeing a woman walking through the doors opened by the champions who tirelessly fought the giant before them, only to have their eye fixed on ways to barricade and erase any semblance of an opening. Yet, another inflection of the tides of progress and regression has gifted the arsenal of progressive movements a potentially powerful addition. To that end: Welcome VP Harris.