A progressive icon, the American Supreme Court justice died Friday, Sept. 18, at the age of 87, sparking a political battle for her replacement. Professor Anne Deysine sees both reason to worry and a test for American democracy.
Professor emerita at the University Paris-Nanterre, a specialist in American law and politics, Anne Deysine is the author of “Les Etats-Unis et la démocratie” and “La Cour suprême des Etats-Unis.” She discusses the death of Justice Ruth Bader Ginsburg and its consequences, a month and a half before the American election.
What is your first reaction to Ruth Bader Ginsburg’s death?
First, it is sad that she died under these circumstances, where her legacy — which is incredible — is ignored, and people are jumping right into a political battle. That is my first reaction. The second is that we will no doubt be confronted with Mitch McConnell’s total absence of principles. In 2016, he refused to even consider Judge Merrick Garland, nominated by Barack Obama eight months before an election, after the death of Justice Antonin Scalia. This time, he announced without hesitation his intention to confirm Donald Trump’s nominee with the presidential election just six weeks away.
Do the Democrats have the tools to fight back?
In institutional terms, in the Senate, they do not. McConnell has decided that he will go down in history for having changed the orientation of the Supreme Court. And so, he has a tight hold on his majority, his troops, who are terrified of Trump and of not being reelected. In my eyes, there is pretty much zero chance of the Republican senators rebelling. Just look at their attitude during the impeachment trial. No Republican senator, except for Mitt Romney, had the courage to vote against Trump.
That leaves Democrats with the media. But right-wing media is louder than its left-wing counterpart. Short-term, the question is: Will democrats — not in the sense of the Democratic Party, but in the literal sense of the term, those who would like to see something resembling democracy in the United States — be able to stop Republicans from doing what they stopped Obama from doing in 2016? But I am not very optimistic.
So, what is going to happen in the next few weeks will be historic?
It is a turning point in the United States. Because, aside from the damage that the confirmation of a sixth conservative justice can do to the Supreme Court, if the institutions and public opinion allow it to happen, that means that all the mechanisms that the founding fathers tried to put into place have disappeared. It would be unacceptable and would show Republicans’ utter lack of integrity, if they manage to do the opposite of what they did four years ago. If there is no resistance, that would be consistent with one of the arguments that I made in my last book, that democracies die when their actors stop resisting. There has been an erosion of norms in the United States, and that started before Trump. But we really are at a pivotal moment here.
What effect could this have on the campaign? Could Donald Trump, who has been in trouble these last few months because of his handling of COVID-19 and his response to anti-racist protests, benefit?
In terms of communication and especially in terms of having a voice, he has everything to gain. Two weeks ago, his administration, incidentally, put out a new list of judges, potential candidates for the Supreme Court who keep getting younger and more and more ideological. Because Trump realizes that such a list is a fabulous strength when it comes to getting votes, especially when it comes to shoring up the evangelical vote. The recent peace deal between Israel, the United Arab Emirates, and Bahrain went up this same alley.
These past few months, several of the Supreme Court’s decisions have provoked criticism from conservatives, notably the decision on abortion [the Court, by a 5-to-4 vote, declared a Louisiana law imposing drastic restrictions on a woman’s right to choose unconstitutional]. Chief Justice John Roberts, who is undeniably a conservative, but also an institutionalist who cares about the Court’s credibility and legitimacy, was the swing vote, who joined with the progressive justices. In a certain way, and for strategic reasons, he stopped the Court from taking a rightward jolt. With this seat to fill, Trump will be able to say to his base: “This is our chance to have five true conservative justices, in addition to Chief Justice Roberts, who is not really conservative.”
On the other hand, for Democrats and progressives, the death of Ginsburg is not just the loss of a seat. It is also the loss of an icon….
She was in fact an icon of progressivism, of women’s rights, and of equality. Aside from that, she played a very important role on the Court because she was the progressive minority’s senior justice. She will be replaced by Justice Stephen Breyer, nominated at practically the same time she was, and who is also an intellectual force to be reckoned with. But he will not have the same star power that “RBG” had. To give you an example, I gave a talk to some Democrats abroad, and they gave me socks and a T-shirt with Ginsburg’s image. Everywhere, there are gift items, gizmos and exhibitions on her. She was an icon, and with her star power, she had influence. When she read a dissenting opinion on the Court, showing just how opposed she was to the conservative majority, the media picked it up. That carried a certain weight. It will continue with Breyer, but less.
Could the fact that she was an icon also help to energize voters, especially young progressives, whose support Joe Biden is having trouble winning?
We have to hope that that happens, even though, unfortunately, it will not stop the Republican Senate from confirming a sixth conservative to the Supreme Court. It is, in any case, the only piece of good news to come from this death: that young people, and Democrats more widely, finally understand the high stakes of the Supreme Court. If they do not understand it now, then that will really be reason to lose hope.
If Republicans are able to solidify a conservative majority on the Court, what will the consequences be? Abortion rights especially come to mind….
Abortion is at stake, and this topic often attracts the most attention. But there are also other areas that are in just as much danger: voting rights, the separation of powers, the president’s power. Among the candidates on Trump’s list, in addition to being young ideologues, many have worked for his administration and are in favor of extremely extensive presidential powers. In every area, there is a risk of seeing opposing powers clash and rights and freedoms being scaled back.
We must remember that Roberts, even though the right criticizes him, remains quite conservative. He has taken care to make sure that there are few 5-to-4 decisions that can be perceived as partisan. But this has not stopped the Court from ruling systematically against freedoms, in favor of expanded presidential powers, against expanded voting rights — for example, voting by mail. The situation was already worrying before, even if Roberts limited the damage and the rightward slide somewhat, at least on the surface. If he loses this role as a sometime moderator, the floodgates will open, and not just on abortion. In all areas.
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