The GOP Isn’t Allowed to Appoint a New Justice, Because They Promised They Wouldn’t

Since RBG passed on Friday, there’s been much speculation about whether the GOP would attempt to fill her seat on the Supreme Court before the election. But what some prognosticators seem to forget is that they can’t do that because they promised they wouldn’t.

So that should put an end to that! 

RIP to RBG

In a year full of loss, this one hits the hardest. 

I went to the Supreme Court on Friday night. Two things stuck out as we walked among the people assembled on the steps. 

The first is Ginsburg’s incredible legacy. Long before she was a Supreme Court justice, she (seemingly single-handedly) led the charge in the 1970s for sex equality. Nearly every landmark Supreme Court case about sex and the Equal Protection Clause was tied to Ginsburg. Then she went and authored her own crucial opinion once she was on the Court. 

You don’t need me to tell you that RBG was a trailblazer. But seeing the assembled mourners on Friday night was a powerful reminder of all the people whose lives she helped change for the better. The women who were able to have fulfilling professional careers that weren’t conceivable in the years before Ginsburg forged her own path. The lives that are richer in a society that has benefited because of the work RBG did to push us toward a more equal nation on the basis of the sex. She helped challenge and loosen the ingrained, constricting, and unfair gender roles and legal rules that confined men and women. Our lives at home and at work are unimaginably better for it. 

The second thing that hit me though was how losing RBG makes the law in general, and the Supreme Court in particular, feel ever more like a tenuous and arbitrary edifice. We have put so much pressure on nine old people in the Supreme Court to uphold and enforce our rights, and we feel crushed every time they fail to do so. We have let a Court of almost uniformly white men cloak itself in a veneer of objectivity only to get kicked in the stomach every time the Court helps the conservative movement swipe away another hard-fought right. Ginsburg’s passing sheds even more light on the artifice of an institution that stakes claims to neutral principles of law while allowing states and the federal government to concoct preposterous abortion restrictions or establish crosses on public land or kill Mexican teenagers playing on the wrong side of an invisible line

These feelings are mixed up with some frustrations about RBG. She was celebrated as a liberal icon—even when other justices outflanked her on the left. Her hiring practices weren’t as progressive as her legal opinions. And her meme-ification as the Notorious RBG had overtones of minstrelsy and appropriation

Perhaps most frustratingly, she could have retired earlier and let an Obama appointee continue down her path for a more liberal expansion of rights. Instead, we’re staring down the barrel of 30+ years of Amy Coney Barrett using RBG’s seat to build a “kingdom of God.” 

Ginsburg became known for her impassioned dissent on an increasingly conservative Court. We were already in for a lot more dissents like hers given Trump’s two nominations to the bench so far (one stolen, the other simply despicable). But now things could get very bad for a very long time. What lies ahead might force us to rethink our view of the Supreme Court as a fair institution that will protect our rights and values. In that case, we may need to shift our focus away from the federal courts and toward matching the conservative movement’s strides at the state level. 

RBG crafted a brilliant litigation strategy that operated within an overwhelmingly white and male power structure to make a push toward sex equality. But her legal victories—as crucial as they were—only took us so far toward concrete and lasting change. The real change comes from the sweat and blood of shifting hearts and minds as we fight for a more just society. Ginsburg could see the whole board when it came to social change, and she knew when and how the law fit into the bigger picture. 

It’s a shame that Ginsburg’s death immediately became a political battlefront rather than a testimony to her incredible achievements and lasting influence. But it’s heartening that we can celebrate her achievements and continue her legacy by fighting to protect the rights she fought for and to expand the vision of equality she articulated. So let’s do that. May her memory be a revolution.