National Post (National Edition)
The alleged last words of an American icon
Let us stipulate for a moment that we sympathize with the affection and grief for U.S. Supreme Court Justice Ruth Bader Ginsburg, whose death on Friday from pancreatic cancer provoked public vigils and unhinged social-media anguish. Can we agree, putting ourselves in the position of fellow mourners, that the obsequies are still a little curious? No other Supreme Court justice — not even Thurgood Marshall — has had anything like “RBG's” popular cult. She wasn't renowned as a juridical stylist or as an irrepressible personality in the manner of an Oliver Wendell Holmes or even Antonin Scalia. When a wit dies people don't stagger outdoors with a lit candle; they might at most pour a tall whisky.
When Scalia died, The New York Times cited his “transformative legal theories,” no doubt a little grudgingly. Its obituary for Ginsburg praised her work as a pioneering feminist litigator who helped sweep archaic sex rules from property and estate law, but it acknowledged that she had never succeeded in changing U.S. law to treat distinctions of sex with the very strict scrutiny it devotes to racial ones.
The Times judged her signature flourish as a justice to have been U.S. vs. Virginia (1996), which forced the Virginia Military Institute (VMI) to admit women. It has become a canonical case a quarter-century later, but VMI was literally the only public institution of higher education in the U.S. that still imposed a sex bar. (And, of course, young law students are exposed to Scalia's dissent as well as Ginsburg's writing on behalf of the majority.)
Maybe the people who have been getting Ruth Bader Ginsburg tattoos and dressing their kids as Ginsburg for Halloween are simply feeling nostalgia for the Clinton era, which witnessed her arrival as a justice — for a U.S. government, economy and society that now, after less than a generation, seems unrecognizable. (Justice Stephen Breyer is now the Supreme Court's last Clinton justice; the two presidents Bush, between them, still have three.)
Or maybe it's her personal virtues of principle and perseverance that are attractive. If the world were run exclusively by Ruth Bader Ginsburgs, it might be a better place. Sheer toughness, at least, would stand higher among the public virtues than it does now. But given the timing of her demise, it has not gone overlooked that she was urged to retire from the court during the Obama years in order to make way for a young liberal successor.
She met these pleas with the same confident scorn she had once reserved for people who didn't think women had a place at the legal bar. As political strategy, it didn't work out well.
If the deathbed plea she allegedly dictated to a granddaughter is genuine, it seems she knew this.
Ginsburg is said to have said, “My most fervent wish is that I will not be replaced until a new president is installed.” The current president may, of course, be re-elected to a fresh four-year term in November. Many commentators are quietly making the point that Supreme Court justices don't choose their successors under the U.S. Constitution, but few are asking what the U.S. is supposed to do about Ginsburg's dream if President Donald Trump gets back in. Leave her chair empty for four years? Reverse the outcome of the election?
My instincts, and indeed my regard for Ginsburg, suggest that her testament may be the invention of a grieving relative. History is full of these, and they usually do have the nature of pious exemplars. But maybe it was intended as a curse. Maybe she was appealing to a sympathetic providence, rather than the marines, to bring about a “new president” equipped with a list of decent liberal judges.
In the meantime, the adulation once sometimes dedicated to elected politicians continues to creep toward the judiciary — as if the American public sensed that the true nexus of legislation is departing from the American legislature, and that influence over the law has drifted toward the judiciary, which “interprets” law, and the executive, whose acknowledged function is to select judges of the correct stripe. (Although whomever you vote for, Harvard and Yale will always get in …)
If this is what the American public thinks, I am in no position to dissuade it. If your constitution is predicated on dispersing power by means of “checks and balances,” the spirit of faction is bound to find all of the available avenues. Remember, the American revolutionaries wanted to keep partisanship out of the legislative branch, too. Most of them lived to become savage partisans themselves, slightly embarrassed and unable to pinpoint what had gone wrong.
And if the history of the United States is viewed as a continuation of English political traditions, well, judges were attracting partisan exaltation and condemnation before there was any such creature on Earth as a prime minister or a president. Maybe our cousins are returning to a natural equilibrium rather than descending into chaos. One would like to think so.
TESTAMENT MAY BE THE INVENTION OF A GRIEVING RELATIVE.