There is No Law Against Hypocrisy (Ruth Bader Ginsburg)

Joan Ruth Bader Ginsburg passed on September 18th. Her passing is being felt around the world. She served as a D.C. Appeals court justice from 1980 to 1993 when she was appointed and confirmed to the Supreme Court by the Clinton Administration. She was a champion of gender equality and women’s rights. She was a volunteer attorney for the ACLU, where she co-founded the Women’s Rights Project in 1973. While she was public about her belief in a constitional right to privacy and gender equality, she refused to answer questions about how she would rule when confirmed to the Supreme Court, a refusal she reinforced during John Roberts’s confirmation. Roberts invoked his own similar refusal, which had become known as the “Ginsburg rule”, a move that Ginsburg said was “unquestionably right”. Ginsburg authored the 1996 Opinion in United States v. Virginia, which struck down the Virginia Military Institute’s (VMI) male-only admissions policy as violating the Equal Protection Clause of the Fourteenth Amendment. Ginsburg did not often read from the bench, but chose to do so in several meaningful dissents. Ginsburg dissented in the court’s decision in Ledbetter v. Goodyear, a 2007 case where plaintiff Lilly Ledbetter filed a lawsuit against her employer claiming pay discrimination based on her gender under Title VII of the Civil Rights Act of 1964. In the 5–4 decision, the majority interpreted the statute of limitations as starting to run at the time of every pay period, even if a woman did not know she was being paid less than her male colleague until later. Ginsburg found the result absurd, pointing out that women often do not know they are being paid less, and therefore it was unfair to expect them to act at the time of each paycheck. Ginsburg was in the minority for Gonzales v. Carhart, another 2007 5–4 decision upholding restrictions on partial birth abortion. In her dissent, Ginsburg opposed the majority’s decision to defer to legislative findings that the procedure was not safe for women. Ginsburg focused her ire on the way Congress reached its findings and with the veracity of the findings. In 2014, the Court ruled 5-4 in Burwell v. Hobby Lobby that the Religious Freedom Restoration act allowed closely-held corporations to deny contraception in healthcare coverage to their employees as required by the Affordable Care Act. Ginsburg also took issue with the majority’s ruling in Shelby County v. Holder, a 2014 5-4 decision striking down the oversight of voting procedures in districts with a history of illegal discrimination. The majority ruled that “current conditions” meant that previous oversight had been successful and could be eliminated, a decision Ginsburg derided as shortsighted, saying that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” Thank you to Law360.com for collecting these audio quotes. For more about Ginsburg’s remarkable life and journey, I highly recommend watching “On the Basis of Sex”, 2018 docudrama, and “RBG”, also a 2018 documentary. But now she has passed, and, as I said, her passing has been felt worldwide. I, myself, wanted to make this video on Saturday the 19th, but I was too moved to bring myself to write. I was also worried, as many now are, that her passing may mean a significant and fundamental shift in future rulings by the Supreme Court, an instution that has the final say on disputes of law and interpretation of legislative policy. The politcal leaning of Supreme Court justices has long-term and significant effects. As an example, the time from 1897 to 1937 is known as “The Lochner Era”, for the case of Lochner v. New York, a 1905 case that struck down a New York State law limiting the number of hours bakers could work on the grounds that it violated the bakers’ “right to contract”. The Court sometimes invalidated state and federal legislation that inhibited business or otherwise limited the free market, including laws on minimum wage, federal (but not state) child labor laws, regulations of banking, insurance and transportation industries. The Lochner era ended when the Court’s tendency to invalidate labor and market regulations came into direct conflict with Congress’s regulatory efforts in the New Deal. As Justice Robert H. Jackson characterized the power of the court and also its judges, “We are not final because we are infallible, but we are infallible only because we are final.” Acknowledging the humanity of the justices means accepting that personal experience, beliefs, and biases are inextricable from the Court’s decisions. And that’s what I really want to talk about today. Now that there are eight remaining justices on the Court, the option is available to the President of the United States to nominate a replacement. Article II of the U.S. Constitution provides that “[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law” Here, in 2020, it is understood, politically, that President Trump’s potential nomination would likely be confirmed by the consent of the Senate without much trouble. As it stands today, the Republican-controlled Senate could confirm a Supreme Court nominee with a simply majority along party lines. The only thing that could stand in the way of a nominee’s confirmation would be the dissent of at least four republican senators (assuming democratic senators unanimously oppose confirmation). If there is a tie, the tie is broken by the Vice President as President of the Senate. The timing of Ginsburg’s death could not be more divisive. The U.S. Presidential election is just a few weeks away and absentee and mail-in ballots are already in citizens’ mailboxes. The 2020 election was already among the most explosive in my lifetime and Ginsburg’s passing will only add fuel to an already roaring bonfire. A similar situation occurred back in 2016 during President Barack Obama’s final term. In February of 2016, Justice Antonin Scalia passed away, leaving his seat open for President Obama to nominate a successor. Famously, the Republican-led Senate refused to hold confirmation hearings for Obama’s nominee, Chief D.C. Appeals Court Justice Merrick Garland. The refusal to hold a confirmation hearing was justified by the Senators. In one letter to Senate Majority Leader Mitch McConnel, eight republican Senators said the following:

“the American people are presented with an exceedingly rare opportunity to decide, in a very real and concrete way. the direction the Court will take over the next generation. We believe The People should have this opportunity.”

“Not since 1932 has the Senate confirmed in a presidential election year a Supreme Court nominee to a vacancy arising in that year. And it is necessary to go even further back – to 1888 – in order to find an election-year nominee who was nominated and confirmed under divided government, as we have now. Accordingly, given the particular circumstances under which this vacancy arises, we wish to inform you of our intention to exercise our constitutional authority to withhold consent on any nominee to the Supre1ne Court submitted by this President to fill Justice Scalia’s vacancy.”

Now, in 2020, many of the same Senators are calling for the fast nomination and confirmation of a new Justice despite their position four years ago. McConnell is still the Senate Majority Leader, and he has publicly announced his intention to fast-track any nominee President Trump puts to them, saying:

“In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise,” “By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.”

Whether you find that to be hypocritical or not, I leave to you. But there is almost nothing anyone but the Senate can do to stop whatever this train of events is carrying. This snowball of events was set in motion not by Ginsburg’s death, but by the voters who chose their representatives and leaders long ago, and the operation of those votes in electing the President and Senators as set forth in the U.S. Constituion. The people may protest, they may call their Senators, they may gnash their teeth and wail their emotions. But hypocrisy is not against the law, and the people’s power is limited to that set forth in the Constitution. Your power, the people’s only power, in this crisis of the consequences of your own making, is to vote.