America lost a consistent and fearless advocate for equal justice under the law with the untimely death of Justice Ruth Bader Ginsburg. Whether striking down the exclusion of women from the Virginia Military Institute or standing up for voting rights in her dissent in Shelby County v. Holder, Ginsburg was motivated by a deep faith in our democracy.
It is not enough, though, to praise her many accomplishments or her moral character. We must work to fulfill the dream of equality under the law while honoring her “most fervent wish,” as said by her granddaughter, “that I will not be replaced until a new president is installed.”
Senate Majority Leader Mitch McConnell (R-Ky.), who just four years ago broke precedent and refused to hold a hearing for any nomination by then-President Barack Obama on the grounds that “the American people should have a voice in the selection of their next Supreme Court Justice,” promised to fill Ginsburg’s seat without delay instead.
Republicans who once pledged consistency in this exact scenario — a 2020 vacancy under a Republican president — wasted no time in clarifying the emptiness of their words. While it is certainly lawful for Republicans to hold no principles except raw power, they would do well to read the Bible they claim to uphold: “Whoever sows injustice reaps calamity, and the rod they wield in fury will be broken.”
A 5-4 conservative majority has already handed the 2000 election to former President George W. Bush — you can thank the court for the Iraq War — neutered the Voting Rights Act of 1965, overruled precedent to allow unlimited corporate money in elections, allowed partisan state legislators unchecked powers to choose their voters instead of the other way around, weakened Obamacare’s Medicaid expansion leading to thousands of preventable deaths and legitimized discrimination against Muslim immigrants.
While most rulings are noncontroversial, the unmistakable ideological tint to many consequential decisions makes the court a de-facto legislature with unelected members-for-life. “The more liberal or conservative a justice is, the more frequently he or she votes in that direction when casting the deciding vote,” according to research from Northwestern University.
“Liberal Justices tend to invalidate conservative laws and conservative Justices, liberal laws,” according to the Emory Law Journal. How convenient that their different interpretations of the Constitution just happen to align with their policy preferences!
A 6-3 conservative majority would be even worse, removing any pretense of impartiality through the occasional liberal ruling. This court, already the most pro-business in generations, could surpass the Lochner era in its deference to the rich and powerful.
It could strike down the entire Affordable Care Act, yanking healthcare from millions of Americans and returning those with pre-existing conditions to the bad old days of legalized discrimination.
It could render the right to vote meaningless and subject women’s reproductive healthcare to the whims of hyper-gerrymandered state legislatures. It could even throw a contested election result to President Donald J. Trump.
Former President Abraham Lincoln’s fear, “the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal,” would be realized.
Independent courts can defend human rights from tyrannical majorities, but the court’s historical record is mixed: It has upheld eugenics, slavery, racial segregation, child labor, colonialism and homophobic sodomy laws. For every Brown v. Board of Education, there is a Plessy v. Ferguson.
Instead of majority rule with minority rights, we are sinking into minority rule. Republicans benefit immensely from a Constitution which values an American citizen’s vote unequally and arbitrarily depending on their state.
Not only does Trump owe his office to the electoral college despite winning fewer votes, but Republican senators also represent 7 million fewer Americans than Democrats.
The year 2017 was the first time in history when senators representing a minority of the population regularly passed laws and confirmed judges, according to GovTrack. Trump’s three Supreme Court justices and 200 federal judges will influence public policy for decades.
Why would a party so unpopular yet so powerful care about the public’s clear opposition to ramming someone through weeks before the election?
If Democrats flip the Senate and White House this year, it would be an act of indefensible cowardice to let Republicans dictate the policy agenda by any means. If Democrats want to actually govern, they should restore ideological balance to the court by adding three new justices who share Ginsburg’s progressive and egalitarian vision.
The Constitution allows this violation of precedent just as it allows McConnell’s partisan hypocrisy. In fact, Congress only settled on nine justices after years of ideologically charged fluctuations in the 1860s.
Republicans will retaliate. So what? Defending the status quo is not sober responsibility, but unilateral surrender. It invites further norm erosion by showing that there are no consequences. At worst, court expansion merely exposes the court as what it already is — an unelected politicized legislature.
A representative republic must represent the public to have any meaning. It cannot endure with the party of the majority treating procedural tradition as sacrosanct while an extremist minority pursues victory at all costs. Let our government be of, by and for the people.
Thomas Kozma is a Bloustein School of Planning and Public Policy junior majoring in planning and public policy. His column, “With Liberty and Justice for All,” runs on alternate Thursdays.
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