How Ruth Bader Ginsburg influenced the Supreme Court, and whether she’ll be replaced before the election

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Ruth Bader Ginsburg was the moral center of the Supreme Court, according to Adam Cohen, author of “Supreme Inequality.” Photo by Supreme Court of the United States

Ruth Bader Ginsburg became a Supreme Court justice in 1993 — the second woman to ever be named to the high court. She was a pioneer for gender equality. She championed voting rights, affirmative action, and other liberal causes in blistering dissents.

She died on September 18 at age 87. Ginsburg’s body will lie in repose at the Supreme Court on Wednesday and Thursday, and then lie in state Friday at the Capitol.  

Her death has plunged Washington into even more political chaos, as the presidential election is a little more than a month away.

President Trump told Fox News today that he’d announce his pick to replace Ginsburg this week, and that he has narrowed his list of candidates to five.

Senate Minority Mitch McConnell said on Friday that Trump’s nominee will get a floor vote. That reverses the stance he and Republicans took four years ago, when they refused to consider President Obama’s nominee, Merick Garland.

KCRW talks about all this with Jessica Levinson, law professor at Loyola Law School; Adam Cohen, author of the book “Supreme Inequality: The Supreme Court’s Fifty-Year Battle For a More Unjust America;” and Melanie Zanona, Politico reporter covering Congress. 

KCRW: How did Ruth Bader Ginsburg inspire your career?

Jessica Levinson: “When I was in law school, it was before she was the notorious RBG. … She was at that point not a figure that had captured the public imagination. She was the second female Supreme Court justice.

So part of how she inspired me is frankly, just in the way she talked about what it means to be an American. And I always remember this quote that she had. She said, ‘What's the difference between a bookkeeper in the garment district and a Supreme Court justice?’ And she said, ‘The answer is one generation.’ And to me that always said so much about who we are as a country. 

And then as a lawyer, she inspired me because she did something that — we all remember her as a groundbreaker when it comes to gender equality. And she did that in such a smart way. She brought cases that disproportionately impacted men. And that's how she taught everyone and particularly at that point, male judges, that gender equality really harms everybody. And I just thought that that was a brilliant move. And it really helped to define her early career.”

She saw herself as a humanist, right? Someone who fought for the rights of men and women equally.

Jessica Levinson: “A lot of her career in terms of gender equality was really exactly that, which is to explain to everybody why it's not just women who are harmed by gender discrimination, but it's everybody. It's the husbands, it’s fathers, it’s brothers. 

And I was kind of vaguely referring to one of the first cases she took where there was a widowed father who wanted to get government benefits after his wife had passed away, I think in labor, but the benefits were only available to single mothers. And she brought that case to show that equality of sexes really benefits everybody.”

What effect did Ginsburg have on the Supreme Court?

Adam Cohen: “She’s really a moral center of the court. … We think of the court as being the champion of the little guy, and the institution that's charged and making sure that our society is fair. But in fact, in the year[s] she was on the court, the court had a conservative majority with a conservative chief justice, and regularly ruled for the rich and powerful over the poor and the working class. Ruth Bader Ginsburg was really a moral force that stood up to that on the court. 

She regularly dissented in favor of employees who are being discriminated against on the basis of race and sex and age. She stood up for people who were having their wages unfairly taken, stolen by their employers. … She stood up really for all of us. 

So she was a great dissenter, as it turned out, because the court was majority conservative in those years. She didn't write so many important majority decisions. But she was constantly telling us where the court is going wrong and giving a different vision for the law.”

One of her biggest and most important dissents was in the Lilly Ledbetter case. This was an equal pay case. And the majority did not go the way she wanted. She actually read her decision from the bench, which sent a powerful message. How was she then effective in getting her views across by being a minority voice in that particular case?

Adam Cohen: “She believed the law protected Lilly Ledbetter, who was a female manager at a tire and rubber plant in Alabama, who's being paid less than all the men. The majority, because they're a conservative majority, threw out her equal pay claim on a technicality that Ruth Bader Ginsburg rightly said was not correct. 

She showed in her dissent how Congress could fix the law. And in fact, Congress did fix the law. And the first law that President Obama signed as a president was the Lilly Ledbetter Equal Pay Act, which fixed the problem in the law that the conservatives were insisting on, and ensured that this case wouldn't happen again. So Ruth Bader Ginsburg really did lay the groundwork for that correction by Congress.”

The nation is fixated on who President Trump will nominate to replace Ginsburg? Will that person get a vote before the election or during the lame duck session? What is the word now in Washington as to the timeline of all this?

Melanie Zanona: “The timeline right now is really up in the air. Mitch McConnell will meet with his leadership team tonight. He's also going to huddle with the entire GOP conference tomorrow during their weekly lunch. So perhaps we'll get some more clarity on the timing issue. 

But what I can tell you is — talking to the GOP sources on Capitol Hill that I have — there's sort of two schools of thinking here. The first one is to do it in a lame duck session of Congress. From a calendar perspective, that also makes the most sense. This process takes time. On average, I think the confirmation process takes about two months or longer. And it’s also to protect some of these vulnerable Republicans who are up for reelection, as well as allow the GOP to use it as a real motivating factor to juice up the base on election day. 

But then you have this other school of thinking that says they should get it done as quickly as possible. I know the President is calling for that himself. He wants to get it done before election day. Part of the thinking there is that they just don't know what the political calculus is going to look like after November, especially if Trump does lose the White House. I think it might be hard for some of these moderate Republicans to vote for Trump's nominee if he's the outgoing president in a lame duck session. That could be a problem for them. 

And there's this other potential curveball scenario that democrat Mark Kelly, who's running in Arizona, if he wins his special election on November 3, he would be sworn in early. So then McConnell will be working with an even slimmer majority. 

So all these factors are going to be factoring into their decision making. But I suspect like in the coming week or so, we might have a little bit more clarity on timing.”

Susan Collins and Lisa Murkowski are the only Republican senators saying to hold off until the U.S. knows who the next president will be?

Melanie Zanona: “That is exactly right. And keep in mind, McConnell can only afford to lose three Republican senators. There's a few holdouts who we haven't heard from, like Mitt Romney, who of course voted for one of the impeachment articles. He has no loyalty to Trump. But he's also a pretty reliable conservative for the GOP. And other than impeachment, he's been a pretty reliable Republican vote. 

And then the other one we're looking at is Cory Gardener, who's up for reelection in the purple state of Colorado. This is going to be tough for him. But as we've seen pretty consistently on Capitol Hill, Republicans find that there is just more for them to lose than gain by bucking Trump. So at this point, the feeling is that the GOP will get there in terms of votes. But it's just not a sure thing quite yet.”

Joe Biden was trying to appeal to the more moderate senators on Sunday: “We need to de-escalate, not escalate. So I appeal to those few Senate Republicans, the handful who really will decide what happens. Please follow your conscience. Don't vote to confirm anyone nominated under the circumstances President Trump and Senator McConnell have created. Don't go there. Uphold your constitutional duty, your conscience. Let the people speak. Cool the flames that have been engulfing our country.”

How likely is that appeal to work?

Melanie Zanona: “I don't think Republicans on Capitol Hill right now are taking their cues from Joe Biden. And look, I mean, Democrats are going to try to make this an attack ad. They're going to play all these statements from these Republicans who in the past said that we shouldn't confirm an appointee in an election year. They're going to try to use that against them. 

But I can tell you … hypocrisy is not going to deter him [Mitch McConnell] here. The shame factor is not going to be part of the equation. McConnell  … he cares the most about confirming judges. This is part of his legacy. And so they're going to try to do everything in their power to push through with this.”

One of the things that Democrats are going to do is highlight the Affordable Care Act. A big case on the docket this fall would invalidate the Affordable Care Act, or at least put the health care of millions of Americans into jeopardy. And so if there is no justice seated before the arguments in November, and I think the arguments are scheduled for November 10, what does that mean, let’s say, if there is a four-four split?

Jessica Levinson: “If there's a four four split, and we saw this a couple of times back in 2016, after Justice Scalia had passed away, then the lower court ruling would stand. And so at this point, we're looking at a lower court in trying to determine, ‘Does this mean that the entire Affordable Care Act is in fact unconstitutional?’ And that's what the case that's being appealed [is about]. So this could be a huge loss for proponents of the Affordable Care Act. And this is why I think if the court does go ahead with an eight person complement, then you're going to see a lot of more narrow decisions, because they're going to try and do the same thing they did in 2016 and avoid deadlocks and avoid those bigger decisions where they can't get a majority.”

What are some of the other cases that could be affected? 

Jessica Levinson: “One of the other big cases is out of the city of Philadelphia. And this deals with two agencies … that were government contractors, and they wouldn't license same sex couples to be foster parents because of the agency's religious beliefs. The city basically said, ‘No, you have to.’ One of those agencies sued and said, ‘I have a First Amendment right under the freedom of religion, that I don't have to allow same sex couples to be foster parents, even if the city tells me to.’

… We're going to see more of this — this matchup between LGBTQ rights and religious rights.”

One of the remedies people are talking about on the left is court packing. So if the Democrats are able to take back the Senate and also the presidency, they would then be able to put in more justices to dim the power of the conservative majority. Is that feasible? Has that ever been done in the history of the Supreme Court?

Adam Cohen, “The famous example was from 1937, when the Supreme Court struck down several of Franklin Roosevelt's most important New Deal laws. And the Supreme Court at that point was very out of touch with not just the president and Congress, but with the mood of the American people who supported FDR. 

FDR threatened to pack the court, to add some additional justices who would vote to uphold the New Deal laws. And when he did that, the court switched sides — the famous ‘switch in time to save nine,’ as they called it — and began to implement New Deal laws. So it wasn't necessary. That was a big example historically. 

There's definitely a lot of talk of it right now. One appeal of it is that unlike other reforms that are being thought about, it doesn't require a Constitutional amendment. The number of justices on the court is set by statute. … If Trump gets his nominee in and Biden is elected, particularly if Democrats do very well in the Congressional elections, there will be calls for this. And there will be people saying both that the court is very much out of touch with the popular opinion of the United States, and that the Republicans did some shady stuff to get their majority.

It's not clear that it will actually succeed because I do think even some Democratic members of Congress may be loath to do something that would be as fundamental as changing the number of justices on the court. But many people also think just having the conversation, threatening to do it, may reign in the conservative court from some of its worst impulses. It's an idea we're going to be hearing a lot more about in the days ahead.”

Melanie, is that something you're hearing on Capitol Hill, that Democrats are seriously considering that?

Melanie Zanona: “With Democrats, they have been really tight lipped about how they're going to attack this and what their Democratic sort of strategy is going to be here. The truth is they don't have a whole lot of procedural weapons that they can use. Yes, they can try to delay at least the time in between the committee vote and the committee hearing on this. They can also, of course, demand 30 hours of debate on the Senate floor. 

But their power is really limited. If McConnell really does have the votes to push this thing through, there's not a whole lot they can do, except for these sort of really extreme options, like trying to move head with an impeachment trial … shutting down the government, just anything they can do to throw a gear in the Senate's wrenches. 

But Pelosi is much more cautious that it's hard to imagine her going down that route. She already at least shot down the idea of trying to shut down the government to prevent this. 

And when it comes to the impeachment trial, at the end of the day, the Senate GOP, they control the majority. And so they could just dismiss the articles. They could set their own rules where they could be legislating in off hours. So yeah, I mean, at the end of the day, they don't have a lot of things they can do from the inside. 

What I'm hearing is that Democrats are going to try to turn this into a campaign issue and work from the outside, put political pressure on these Republicans who are up for election. They're going to try to make it all about health care, which was a huge issue in 2018 and helped deliver them the majority. And now they're going to say once again, health care is at stake. So really, Democrats are going to be zeroed in on their campaign message and trying to focus that in the next couple of weeks.”

— Written by Amy Ta, produced by Michelle Eloy and Nihar Patel

Credits

Guests:
Jessica Levinson - Professor, LMU's Loyola Law School in Los Angeles - @LevinsonJessica, Adam Cohen - author of the book “Supreme Inequality: The Supreme Court’s Fifty-Year Battle For a More Unjust America”, Melanie Zanona - Politico reporter covering Congress

Host:
Madeleine Brand

Producers:
Sarah Sweeney, Michell Eloy, Amy Ta, Rosalie Atkinson, Brian Hardzinski, Angie Perrin, Kathryn Barnes