Why we should all be offering our ribs to Ruth Bader Ginsburg

It seems that with each Supreme Court nomination the process gets more political, and that’s why the timing of Ginsburg's ailments is particularly terrifying: Republicans just increased their majority in the Senate allowing them to easily confirm a new Trump-appointed justice

Sirena Bergman@SirenaBergman
Friday 09 November 2018 17:44
Ruth Bader Ginsburg admitted to hospital after fall at Supreme Court

“Is it possible to donate your ribs?”

Not something I envisioned ever googling, but needs must. The news that US Supreme Court Justice Ruth Bader Ginsburg is in hospital, after a fall which fractured three of her ribs, hoards of liberals have not only pledged to offer her their bones, but also, the rest of their organs – just in case.

Personally, I like the idea of wrapping her up up in bubble wrap and building her a bouncy castle to live in for the next two years to ensure she remains unharmed until a reasonable president can appoint her successor. If Ginsburg retires before then, the US could turn into one of the most reactionary nations on the planet.

Ginsburg – or The Notorious RBG, as her legions of unlikely young fans call her – is one of, if not the most, progressive justices currently on the bench. She has been beloved by the left since well before we entered the bizarre twilight zone of Donald Trump’s presidency, but it’s a testament to how divided the country has become that one 85-year-old woman wields such power.

The irony is that Ginsburg herself was a close friend of the late justice Antonin Scalia, one of the most right-leaning justices, until his death in 2016. On the bench, they disagreed; after work, they went to the opera together. This is hardly a woman desperate to stoke division along political party lines.

But fears of her retirement are far from unfounded. Ginsburg is one of three remaining left-leaning justices on the bench – the oldest and most senior – and there’s no question that under the current administration she would be replaced by a conservative justice, most likely a white and privately educated man, if Trump’s appointment record is anything to go by.

It feels implausible today, but history tells us there was a time when the appointment of judges to the Supreme Court was relatively non-political. Justice Earl Warren was appointed in 1953 by Republican president Dwight Eisenhower. Yet until his retirement in 1969 he made some of the most progressive rulings in the history of the court, most famously in Brown v Board of Education, which declared racial segregation in schools to be unconstitutional. As chief justice he delivered the opinion in Miranda v Arizona which gave name to the Miranda rights you’ll be familiar with if you’ve ever watched an American police procedural. As a former prosecutor, his rulings that all accused should be informed of their rights to remain silent and be afforded legal representation if they cannot afford it, was particularly powerful.

Supreme Court appointments in the US have become more political since the 1980s, with the judges typically holding views that align to those of the president who chose them, but there has always been a sense of pragmatism as well – justices must be approved by the Senate, the makeup of which can be heavily weighted in favour of the opposition party (and often is). It’s this complex political power play that led Barack Obama to appoint moderate centrist Merrick Garland in March 2016 after the death of Scalia. Of course, the Republicans blocked his nomination and Scalia ended up being replaced by Neil Gorsuch in a vote of 54-45, with every single Republican senator – plus four democrats – backing him. By the time Brett Kavanaugh faced the senate, only one Democrat voted for him and two Republicans rejected his nomination. The process was so divisive it has been credited for the record turnout in the midterms.

It seems that with each nomination the process gets more political, and that’s why the timing of Ginsburg's ailments is particularly terrifying to liberals – this week the Republicans increased their majority in the Senate, and although there are still a few results undecided it looks like their seats will go from 51 to 54 in January, meaning that at least five Republican senators would have to vote against the party to stop a justice from being confirmed.

If Trump were able to appoint Ginsburg's replacement, the Supreme Court would have seven conservative judges and two lone liberal voices, which means the vast majority of its rulings, which have the power to impact millions of people across the country, will fall on the Republican end of the social, economic and political spectrum.

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The Supreme Court is set to rule on some crucial issues, including Trump’s attempts to end Daca, President Obama’s executive order act which allows people brought to the US illegally as children to apply to remain and work. Issues such as the death penalty, transgender rights and of course, abortion, are also likely to reach the highest court soon, and even with six conservative justices on the bench, those of us on the left are quaking in our ethically manufactured, locally sourced, vegan Doctor Martens. It’s not hard to see why.

Supreme Court justices have one job – to interpret the constitution. But a document written 231 years ago, by 39 white men, whose idea of justice was so vastly different to ours is almost impossible to apply to the challenges of 2018. Conservative judges tend to lean towards a more literal interpretation, which is of course by its very nature an attitude becoming more and more outdated by the day. This absurdity doesn't matter, though. Supreme Court judges are appointed for life and their decisions are final. They are, in many ways, the only nine people with the power to shape America for years to come.

Those of us who don’t want it to be shaped in the image of Trump, Gorsuch and Kavanaugh have to cling on to the hope that Ginsburg will be a martyr to the cause, holding out for as long as it takes – for all of our sakes.

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