The UNITED States of America
September 19, 2020·6 comments·Politics
Ruth Bader Ginsburg is remembered as a women's rights icon. But her actual judicial philosophy was far narrower and more rigorous: equal treatment under law for all citizens, grounded in the material reality of work and compensation. As the nation processes her death, it's worth asking whether we're celebrating what she actually believed or a simplified version we've created.
• RBG had little patience for symbolic gestures about equality. Her focus was relentlessly on the real world: whether people doing the work actually got paid for it. This distinction between performative equality and material equality runs through her entire body of work.
• Her judicial voice was about universal equal protection, not identity-based advocacy. The framing of her as primarily a women's rights judge obscures her more fundamental commitment to equal treatment for all citizens under law.
• She was skeptical of the Court's own power to create change through broad pronouncements. The institution itself has no enforcement mechanism beyond persuasion and legitimacy. This created a constraint on how she approached constitutional questions.
• The real-world test for equality is whether someone gets an honest day's pay for an honest day's work. Everything else is secondary. This standard is simpler than the frameworks we typically use but harder to implement.
• What's being lost with her passing is less a progressive vote and more a judge grounded in rigorous thinking about what equality actually means. The question is whether anyone replacing her shares that same commitment to material justice over symbolic gesture.
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Comments
If you read the RBG address I posted here, you’ll see that she thought Roe was a significant Court overreach and should have been a much narrower decision. Her legal opinions on abortion were consistently focused on equal protection of citizens under the law.
On Citizens United … c’mon, man. You’re arguing that corporations and other pools of capital are “speakers” like you and me. Again, equal protection of citizens under the law.
To your last point, again … c’mon, man. What does that even mean to say “the legislature’s interpretation of equal protection”?
May RBG RIP!
But the too soon or too late (tsotl) conundrum applies yet again. All of us have to confront the tsotl eventually. Highly confident/successful individuals tend to be too late; it is exactly their success that makes them vulnerable to too late. RBG’s attempt to outlive the moment is admirable for her perseverance, but now her too late will likely prove to be a too soon or too late disaster.
Sounds like RBG could have been founding pack member of #BITFD, except as she mentioned “the framers armed the court with no swords to carry out its pronouncements”. I guess I’ve never really considered that the 3rd branch is nothing without enforcement. Especially considering the war over the next days and months appointing her successor. That Andrew Jackson quote “the Chief Justice has made his decision, now let him enforce it” feels like a given for the last 2 decades on Wall Street. Going to have to look around for an audio file, be interesting to hear it in her own words. Also, funny to see a document that was typed and still had typos.
Unfortunately due to the Widening Gyre and the switch to non-cooperative game theory in Washington, I see the following outcome likely if there is a D sweep in November. R’s jam through a SCJ confirmation before the inauguration. D’s then use that as a justification to (1) eliminate Senate fillibuster, (2) expand the court (to right the wrongs of the R’s “stealing” two seats on the Court) and (3) quickly vote on Statehood for DC and Puerto Rico, adding 4 permanent D Senate seats, all in the name of preserving the legitimacy of the Court. Whatever (little) remaining bi-partisanship there was will be gone as the Gyre will widen further. Lord help us if the R’s can’t keep the Senate.
My very conservative, Trump-voting mother lamented the death of RBG this weekend. Her sentiment was simple: anyone who was good enough to be the closest, dearest friend of Antonin Scalia must have been an extraordinary person worthy of the utmost respect.
I think it would be instructive for Americans to consider other countries (e.g Apartheid South Africa) when thinking about the “noisy minority.” Mitt Romney’s decision to back replacing RBG ASAP today is understandable to me, despite the fact I don’t agree with his politics; Trump’s nominee will likely be the kind of judge he’d vote for at any other time. But in his press conf explanation - that America is a “center-right country” and that, to him and his fellow social conservatives, this will correct a left-leaning court that doesn’t reflect America - makes a dangerous point. In various societies, it feels like there must be a percentage tipping point (30%? 40%?) where a minority convinces itself it’s a majority (And today’s polarized media world helps that too), and thus deserving of the correction of an outrage. I believe Nate Silver’s Voter Power Index points out how far from the mean this thinking is in the US; a rural vote (more likely White, Christian and socially conservative) is worth up to 2.5x an urban vote, with White America looking like 68% of the population when they’re only 60%. I say none of this to pick on any group, but at some point a noisy minority with outsized power and influence hits a wall. This is common across civilizations in history and it has a tendency to end in unrest, state breakdown, violence and sadly, atrocities. So when you worry about what scorched earth tactics the “other side” will use to bring the balance back to what they think is level, be careful. Saying “it’s a republic!” doesn’t quite cut it, and humanity has an awful tendency to forget their neighbors are human quickly.
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