The Court Needs Balance

 

In the end, the cancer won, as it usually does. But over more than twenty years, she, along with her physicians, fought back. As it attacked multiple organ systems, surgery, chemotherapy and radiation were used to combat the spread– along with the formidable will of the patient. But, sadly, the life of Justice Ruth Bader Ginsburg came to an end on Friday September 18^th at the age of 87 years. She died on the eve of Rosh Hashanah, the beginning of the Jewish New Year, which some say conveys special honors on one who dies on that day.

As crowds formed spontaneously outside the Supreme Court Building Friday evening to pay respects and just mourn, the importance of her death to the American people is made clear.  People, who came by the thousands, sang Amazing Grace, recited Jewish prayers and left flowers. They appeared to just want to be near her place of work, the place where she made her mark on the interpretation of laws for most of us. When she took her seat on the Supreme Court, things changed.  As only the second woman to sit on the high court, and the first progressive defender of women’s rights to be seated, she has made a difference during her twenty-seven years as a Justice. For many of those years she was the only woman present and she had a formidable task to educate her fellow jurists on issues of gender equality.

She had laid the groundwork as a lawyer for the American Civil Liberties Union many years before in a series of cases argued over time which set out the issues where men and women were treated differently under the law. For example, a male military officer could get an allowance for a female dependent spouse while a female officer could not qualify for the same funds for her husband. In another case, a husband could not qualify for spousal benefits from Social Security after the death of his wife in childbirth so that he could care for their child. These were a few of the several decisions which she argued before the court in the 1970’s and won. At that same time, she had to contend with justices such as William Douglas who had complained about women appearing before the court whining and droning on about women’s liberation. Consequently, her arguments had to be concise and compelling, which is why the cases were chosen so carefully and not always based on women, but rather on matters of unequal treatment under the law.

Over her many years on the court, she was never in the majority on a right/left court balance, although she authored many majority opinions and many significant dissents. One of her most important cases included the suit to allow women to enter the Virginia Military institute, a college which, even though state supported with tax payer dollars, refused admission to women. Others included support for damages in the case of environmental pollution and for developmentally disabled individuals to receive state funded care. Significant dissents were among her more recent opinions as the court turned more conservative. Of these, dissent in Gore v. Bush, Lilly Ledbetter, and Hobby Lobby, Citizens United, and Shelby County were significant. (I have just summarized the popular case names in these fairly well-known decisions.) In Obergefell v Hodges – (the same sex marriage decision) she was a member of the 5-4 majority with the opinion written by then Justice Kennedy.

Suffice it to say, her presence as a Justice will be missed. Her contribution to popular culture and the nickname the notorious RBG, - while derided by some - also energized the young to the importance of the Court in a way that decades of staid mostly white males seated on the bench have not done. Saturday Night Live brought her image to many more and emphasized her style, concerns and quiet strength with humor.  As she became a pop icon, the Supreme Court became more noticed by others by often aware of its’ role. In 2018 The Hill polled voters about their knowledge of the Supreme Court and found that about half could not name even one justice; while those who could name one most often mentioned Justice Ginsburg - others noted were Roberts and Thomas.  When the hearings about Judge Kavanaugh were aired, more could also add his name. As the administration has sought to blur the separate but equal powers of government, more awareness is key to enforcing these divisions.

Senate leader Mitch McConnell has been mentioned here before for his denial of a Court nomination to President Obama in a power play which put politics over propriety and precedent. It is obvious now that the specious argument he made then and, is contradicting now in his hurry to add another justice before the next president takes office, ranks of hypocrisy, but he does not care. The Republicans did not even give pause to mourn or pay tribute before they gleefully announced that they would choose a successor and set hearings. I am hopeful that public opinion can weigh in strongly enough to make him and his supporters pay a political price and that senators who are up for election this term, including McConnell, are defeated if they persist in these actions. It is said that McConnell is unbeatable in Kentucky – but who knows?

In my opinion, the Bush v Gore decision started the modern era of selecting politics before the Constitution – not that the court has not been political in the past, but Justices Scalia, and Thomas and later, Alito. seemingly have refused to entertain a thought not held by the founders, even though much of modern society could not have been anticipated by them. (Remember, only male property owners were allowed to vote at that time and persons of color, women and slaves were not given that right, although Amendments have mostly corrected those deficiencies.)

The Affordable Care Act is to be considered again by the Court right after the election in a lawsuit brought by the Administration and Republican state Attorney Generals in another attempt to strike it down after the law was upheld by Congress. The health care law is overwhelmingly supported by the public as is Roe v. Wade, which conservatives hope to again bring before a more conservative court. When the Court moves beyond public opinion it may endanger the support it has held in the minds of Americans as the last, best and fairest word on any given issue. This administration has already defied Congress with not answering subpoenas, denied the rule of law, and attempted to undermine the CDC, Justice Department and Health and Human Services; it should not be allowed to defile the Supreme Court by improperly rushing through a nomination. 

To quote earlier statements by Senators Graham, and Grassley, each said the process of 2016 should not be repeated and, as the people decide the next president, he should be allowed to select a nominee. However yesterday Graham – demonstrating he has no moral core, checks instead to see which way the winds are blowing – backtracked again and said he would vote to choose a nominee now. Some say Senators Collins, Murkowski and Romney are also not in favor, but time will tell. In another odd twist, if Martha McSally (R) loses her special election Senate seat to astronaut Mark Kelly (D) in Arizona, he would immediately be seated and take away another Republican vote in the 53-47 Senate, so McConnell has an incentive to not only finance her race, but to also get the vote before November 3^rd which might be a tall order. The New York Times indicated in an article that the court battle may energize Democrats more than Republicans as it further demonstrates polarization in the country. If the American people quite loudly make their voices heard, there is a possibility that some Republicans might listen; if not, then I hope we can turn the Senate Democratic in a repeat of the landslides of 2018 in the House, and, of course, elect Joe Biden.

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There have been many policy issues and personnel changes at the CDC over the last week – I will take a look at those next week. We are approaching 200,000 COVID-19 deaths in the next day or so, even as total incidence slows nationwide; just before the anticipated start of flu season in the US and the projected second Fall wave starts.

Latest COVID-19 Stats: (New York Times) as of 9/19/20.

Total US cases: 6.808,400 Total new cases: 41,844 Total Deaths: 199,308 Total new deaths: 672.

Total Maryland Cases: 120,489 Total new cases: 548 Total Deaths:3,879 Total new deaths 7.

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If early voting has started for your area, please VOTE!

Well, this has been quite a week, so I guess I will close now with the turn of phrase suggested by some in tribute to Justice Ginsberg, “May her memory be a revolution.”

‘Til next week, peace.