A progressive and feminist icon, Justice Ruth Bader Ginsburg (RBG) was and still is the object of a cult following in the United States, especially among younger generations. Upon her death in September 2020, Democratic America returned her tribute for several days, recalling his action for the rights of women and minorities. But shortly after his burial and a few weeks before the presidential election between Donald Trump and Joe Biden, the meditation very quickly gave way to a fierce political battle for his replacement.
In record time, the Republicans managed to confirm the candidate proposed by Donald Trump, Amy Coney Barrett, and offer a great victory to the presidential candidate. Opposed to abortion, contraception and favorable to firearms, Amy Coney Barrett is at odds with her predecessor, to the delight of the Republican camp and religious circles who see their weight increase within the most US high court. Since then, six conservative judges make up its ranks against three progressives, the Supreme Court is seen as the place of all the dangers for the rights of women, minorities and progressive causes.
It did not take very long for these fears to materialize, since the Court would be on the verge of ending federal protection of the right to abortion by overturning the Roe v. Wade, according to the document published in early May by Politico. As an earthquake is about to occur in the United States, the error committed by Ruth Bader Ginsburg in 2014, which we will discuss in this article, risks costing the progressive camp and more generally women dearly.
Resignation was the solution
Ruth Bader Ginsburg, who died at the age of 87 from pancreatic cancer detected ten years earlier, took a huge risk by refusing to resign during Barack Obama’s mandate to be replaced by a judge who shared her views ( the latter being appointed for life).
Several forums have been published since 2011 to alert on this point. Among them, let us quote in particular that of Erwin Chemerinsky, published in the Los Angeles Times in March 2014 and soberly entitled “It all depends on Ginsburg”. The well-known American lawyer then sounded the alarm a few months before the mid-term elections at the end of which the Republican Party was preparing to regain control of the Senate, an essential step to confirm a judge.
He was visionary from the first lines: “Ruth Bader Ginsburg is expected to retire from the Supreme Court next June. She turned 81 on Saturday and clearly she is physically and mentally capable of carrying on. But only by stepping down this summer can she ensure that a Democratic president can choose a successor who shares her views and values. […] If a Republican president chooses Ginsburg’s replacement, this judge could easily be the fifth vote needed to allow the government to ban all abortions.”
Eight years later, we measure the relevance of the statement. Although the Court is not a political body, appointments often reflect the views of those in power, which has significant consequences for an institution whose role is incredibly important in shaping public policy in the United States.
Obstinacy and blindness
By clinging to his seat despite his advanced age and his health concerns, RBG showed naivety, even a certain selfishness. And the cult following didn’t help, as Mother Jones reporter Stephanie Mencimer noted shortly after Donald Trump was elected: “The figurines and videos honoring him will be a derisory balm to affix to the damage that could be done to racial equality, LGBT rights and reproductive freedoms if Trump were allowed to replace Ginsburg.”
Many have, in fact, been those who have defended his choice, yet strategically incomprehensible and dangerous. His stubbornness to sit and the blindness of part of the left unwittingly paved the way for the conservative revolution so long awaited by the most radical right-wing circles.
This plea of inadmissibility of “Justice Ginsburg” did the business of the Republican Party which, thanks to the flair and cynicism of its leader Mitch McConnell, achieved a masterstroke in the following years. In 2016, at the end of Barack Obama’s term, the Grand Old Party refused to audition the candidate nominated by the Democratic president to replace the late conservative Antonin Scalia and blocked the process for eight months, arguing that it would be inappropriate to appoint a new judge in the middle of an election year.
The whole world knows the rest of the story. To everyone’s surprise, Donald Trump defeats Hillary Clinton despite a delay of 3 million votes and obtains the right to make the nomination. The conservative camp then saved its majority with the arrival of Neil Gorsuch to the Supreme Court and hastened to do everything possible to secure it a little more by rejuvenating the workforce.
Judge Anthony Kennedy, reputed to be a moderate, retired in 2018 at the age of 81 and was replaced by Brett Kavanaugh, an ultra-conservative in his fifties. The blow comes with the death of RBG, just two months before the 2020 presidential election: Mitch McConnell announces that he will not take into account the rule that came out of his hat four years earlier to block the nomination of Barack Obama, and put everything in place to proceed with the confirmation of Amy Coney Barrett, Donald Trump’s candidate. The trap closes on the Democrats and the conservative majority progresses to six against three. Checkmate for several years, even decades.
Tainted Icon Status
According to the document obtained by Politico, five of the six conservative justices appear set to overturn Roe v. Wade – only Chief Justice John Roberts could refuse to join his cronies. A sufficient number to obtain a majority and to wipe out with a stroke of the pen the fruits of a feminist fight of several decades.
A resignation of Ruth Bader Ginsburg in 2014 would have probably reversed the balance of power and saved, in part, the protection of the right to abortion at the federal level. If the United States jumps back fifty years next June, Donald Trump and the Republicans will not be the only ones responsible. The entire legacy left by RBG could well go up in smoke because of a bad decision made ten years earlier. What somewhat taint its status as an icon.
Although the subject has never really been debated publicly by elected Democrats, it is in everyone’s mind. Proof of this is Stephen Breyer (81) recently resigned to make way for Ketanji Brown Jackson (51), Joe Biden’s candidate confirmed by the Senate last April. At least the lesson has been learned.