Reflections on the Death of RBG

About an hour ago I got word that Justice Ruth Bader Ginsburg died. I still haven’t fully processed my thoughts about this. I suppose that’s what this blog post is an attempt to do.

I have always loved the law. Certainly not every law or how the law was often applied. It is inescapably true that the law allowed some people to own other people. That same law meant, according to then US Supreme Court Justice Roger Taney, that black Americans “had no rights a white man is bound to respect”, and later denied their grandchildren the right to even drink out of the same water fountain as white people.

But while the law could be irrational and cruel, it could, at its best, be soaring and life-affirming. The Civil Rights and Voting Rights Act, the Public Accommodations Act, The Clean Water Act, Child Labor Laws, the GI Bill, etc. The law could change lives and change minds. It could make us better, not merely by forcing us to be better, but through it’s example, actually transforming us into a better people.

But the best thing about the law was not the text of any individual legislation. It was the concept itself that I have found to be majestic and inspiring. For thousands of years, the strongest among us coerced and abused those weaker to serve his whim. If you disagreed with the King, he’d just cut your head off and find someone else to do his bidding. That is still the way of the world in far too many places.

But oh, the law! How I worshipped the idea that no person could subjugate another person by mere dint of brute force. All of us are bound by the law and are secured by its entwinement. In America, the poorest person of the lowest station can walk into a courtroom demanding justice, and, if she is right, walk out having brought the largest corporation or even the government of the United States itself to it’s knees. Is there any more perfect manifestation of what a just society should be?

For much of my life, the US Supreme Court was the living exemplification of the tangible effects of justice on our lives. I learned early that Justices are appointed for life specifically to ensure that they never have to consider the popularity of their decisions. And I saw time and again how the court stood up for even the most unpopular and despised litigants if their cause was just.

Brown vs. Board of Education eliminated the repugnant legal separation of the races, saying that “Separate but equal is inherently unequal”. In Gideon vs. Wainwright, they said that every person charged with a crime, no matter how horrific the allegation or destitute the defendant, had to have a lawyer by her side when her freedom was on the line. In Obergafell they said that even if 99% of the population opposes the right of gay Americans to marry, it is a right nonetheless, which every person is “bound to respect”. I could go on and on, with every case I mention representing a new and brighter life for at least some of our fellow citizens.

Obviously, I didn’t agree with every decision. Some were truly heartbreaking. However, MLK said that the arc of the moral universe was long, but it bends towards justice, and that seemed to be, in fits and starts, the trajectory the Supreme Court was on. By almost every measure, we are more just, more fair and more free then we were fifty years ago.

I grew almost embarrassingly reverent of the law, and the Court’s role in shaping it. I decided to make it my life, for 17 years as a lawyer, and 18 as a legislator. When my wife Jen agreed to marry me, I made one request. I wanted to name our first-born (male or female) after my personal hero, Supreme Court Justice William Brennan. As I write this our daughter Brennan is at the US Supreme Court building lighting a candle for Justice Ginsburg.

When our son came along I wanted to name him after another hero, Justice Thurgood Marshall. However, Jen felt we had done the Supreme Court as much as we needed to. She said that if we introduced our two children as “Brennan and Marshall” people would think we were, and these are her words, “Crazy”. We opted for Justin instead.

If we had decided to have a third child, I would have fought hard to name her after Justice Ginsburg (“Ruth” if a girl, “Bader” if a boy). Her life both before she was on the Court as the leading architect of advancing women’s rights through litigation, and as the fearless 100 pound lioness of fairness and equality during her 27 years on the bench, is everything I’d hope our kids would aspire to. She was a beacon in tough times and an afflatus of progress always.

She is now gone. And despite the fact that Mitch McConnell refused to bring Merrick Garland up for a vote when Obama nominated him with a full year left in his term because “the voters should have a say”, he will surely bring whoever Trump nominates to the floor with less than 45 days until the election. We no longer need to hear from the voters. In fact, he has already promised to do just that. He couldn’t even grant Justice Ginsburg 24 hours of rest.

Perhaps I’m wrong. But I feel we are at the end of an era. Not the Ginsburg era, but something much larger. I fear we are at the end of the era of Justice. No longer will we look to the Court as the last, best hope for the oppressed, as the protector of the powerless, as the balefire of decency, wrenching the better angels of our nature out of us in spite of ourselves.

I suspect instead that the Court will become the garish ally of the laughing racists, the rapacious polluters, the corrupt and the bigoted, the mean, the “let ’em eat cake” crowd and the deporters, the theocrats and the executioners. In other words, they will join cause with the powerful and afflict the afflicted.

We have three branches of government. Two of them, the Executive and the Legislature are designed to look after the interests of powerful majorities. It is the Court that is charged with looking after those who can’t afford to give big checks to campaigns, or whose cause is not fashionable in popular culture. That is what I fear is ending. Who will those who care about justice for all name their children after now? I’ve never been sadder.

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