On Friday, September 18, 2020, Justice Ruth Bader Ginsburg passed away as a result of complications from metastatic cancer of the pancreas. Reportedly, she died at home in the company of her family. Her death meant the end of a 27-year stint sitting as an associate justice on the Supreme Court of the United States (SCOTUS), and for many, the end of a legal and feminist icon.
Ginsburg is especially well known for her dissenting opinions on the Court, which was conservative leaning for most of the 27 years she served as associate justice. She consistently cast progressive votes on many divisive social issues, including gender equality, abortion rights, immigration, healthcare, and affirmative action. With Ginsburg sitting, the Court was at a 5-4 conservative majority (although some would argue that Chief Justice Roberts is a centrist, as he has recently cast some surprising votes, like one siding with the majority in striking down a Louisiana law that would restrict abortion rights). The next justice placed will decide between an overwhelming 6-3 conservative majority or a more even 5-4 split. With Ginsburg’s death falling less than seven weeks before Election Day, a political battle has begun over the future of the Court, with many fiercely arguing over whether President Trump should appoint her replacement.
Ginsburg made her opinion of President Trump known, even before his election as president, in an interview for the New York Times—a politically charged move that was highly unusual for a justice. “I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president,” she said in the interview published July 10, 2016. She later expressed regret for her remarks in a written statement released by the Supreme Court, saying, “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.” However, her true opinion of the President seems to have changed little before the time of her death, according to a report by NPR. Apparently, Ginsburg dictated the following statement only days before her death: “My most fervent wish is that I will not be replaced until a new president is installed.”
The significance of this unfortunate timing has not been missed by JD students here at Osgoode. Ray Marcondes, a Section A 1L in her first year at Osgoode, had the following to say when asked if she had any concerns related to the newly open position: “I have so many concerns! […] RBG’s passing means that the U.S. Supreme Court is now held by 5 republican justices, 3 democratic justices and 1 vacant seat. With U.S. Senator Mitch McConnell and the president vowing to fill the seat prior to the election in November, that will leave the Court skewed 6 to 3 in favor of the republicans. Making it a far more partisan Court than it was, as Chief Justice Roberts (a republican) has been voting more moderately in recent decisions, which has allowed for democratic rulings recently. Now, regardless of whether the Chief Justice swings his vote liberal, it won’t matter. Now two justices have to be convinced to vote more moderately/ democratically. This is deeply troubling, not only for the future of democratic ideals in the U.S. but, potentially, for the outcome of the upcoming election. If the election results are contested,
which considering the president’s current rhetoric, is likely to happen if he is not re-elected, then the election may be decided by the U.S. Supreme Court. A Court that will then be far more partisan than when it decided on a similar matter (Bush v Gore) in 2000.”
Tanzim Rashid, a 2L student at Osgoode, commented on Justice Ruth Bader Ginsburg’s commitment to upholding the spirit of the law, and followed with his concerns about the results an overwhelmingly conservative SCOTUS could have on future rulings in several areas: “To me, Ruth Bader Ginsburg was a person who saw the law not only for what it is but for what it could be. In every landmark decision she wrote, and in every ground-breaking dissent she spearheaded, Justice Ginsburg upheld her commitment to put the spirit of the law above its literal interpretation. From all I’ve learned about the Brooklyn-born jurist, she departed from the SCOTUS’ conservative bend and opened up the gates for successive justices to play a more active role in weaving America’s legal fabric. Her death leaves the SCOTUS with three liberal justices and four conservative ones, with Chief Justice Roberts oscillating between both sides. Her replacement, therefore, will likely determine the balance of the Court for the next quarter century. If it is President Trump who chooses her successor, the Court will lean unequivocally conservative. If her successor is chosen by President Biden, the Court will split down the middle between liberals and conservatives. A wholly conservative Court is my principal fear in the wake of Justice Ginsburg’s death. Women’s reproductive rights, marriage equality, campaign finance, and electoral rights would all be under siege in a Court controlled by socially conservative, legally originalist jurists. I hope her dying wish to have her seat filled after the presidential election is honoured.”
Some students are more cynical, feeling that Ginsburg perhaps should have stepped down while Obama was president to prevent a situation precisely like the current one. One anonymous 1L student outlined this complaint, going on to express some discontent with the volatile nature of the system more generally: “I take issue with treating politicians like celebrities in a democracy. Much less a politician who has done harm to BIPOC communities and had the opportunity to step down during the Obama administration. I will acknowledge that her death is a tragic one, while at the same time wishing that the civil liberties of so many were not resting on the shoulders of one person.”
With powerful feelings and statements on all sides, it is, at the time of writing, unclear how the situation will be resolved. President Trump has clearly stated his intent to announce his nomination next week and rejected suggestions that he should wait until after Election Day (November 3, 2020) for the then-president to nominate Ginsburg’s replacement. However, with less than 7 weeks to go, it is unclear whether he will be successful in pushing through a nomination before the deadline.
In the meantime, any readers interested in the life of “the notorious RBG” and how she came to be a Supreme Court Justice are encouraged to check out the excellent 2018 documentary, “RBG.” JD students may also be interested in the “Amicus Presents: The Class of RBG” podcast series for its focus on Ginsburg’s time at Harvard and on the stories of the other women of the class of 1959.