“Honor Her Wish”
The Darker It Gets the Harder We Fight: The Path Forward after the Death of Justice Ginsburg
Before law school, I had familiarity with Justice Ginsburg as a cultural icon. But the past three years have provided an opportunity to dig into her legal opinions and her jurisprudence. And if anything it makes you appreciate the gravity of her legacy even more. Ginsburg was a tenacious, brilliant, and tactical warrior for equal justice. Her historic legacy is one of expanded opportunity and fairness, especially for American women.
From the beginning, she overcame levels of adversity that are hard to even imagine today. She was one of nine women in a class of 500 men in law school, where she was belittled and denied a Supreme Court clerkship because of her sex. Nonetheless, she became a historically effective litigator at the American Civil Liberties Union. Her first legal brief in Reed v. Reed was an absolute tour de force for basic fairness and the rights of women. She made persuasive legal arguments for equal treatment in court rooms across the country, framing gender discrimination in ways that even mysognistic, male judges had trouble defending. As a result, her litigation began changing dozens of laws: whether it was laws refusing to issue women credit cards, preventing them from leasing apartments, or even consenting to medical treatment. As the Guardian points out, “it is impossible to overstate the impact [of her litigation record].” She changed the fabric of American society, moving us closer to our Constitution’s promise of a “more perfect Union.”
And all of this was before she became the second female Justice on the Supreme Court. I had the privilege of listening to her speak this past year at Georgetown, and I was struck by her humility, her resilience, and her determination. Even in ill-health, she continued to attend oral arguments and fight passionately for an inclusive and just America on the bench. And as much as that experience meant to me, I know she had an incredibly special resonance for my female classmates. For many of my peers she was more than just a trailblazer: she was a role model and a hero. There is something powerful about looking at pictures of young girls dressed as RBG for Halloween, how her story gave them something to aspire to.
Her cultural significance alone would make the grieving process for her loss hard enough. But the reality is the current political context has drastically increased the stakes. RBG’s final words to her grandaughter were “my most fervent wish is that I will not be replaced until a new president is installed.”
Already, however, President Trump and his enablers are preparing to fill RBG’s seat as they sacrifice principle for power in an act of historic and shameful hypocrisy. The Republican Senate refused to even consider President Obama’s Supreme Court ahead of the 2016 election, breaking basic constitutional norms by fabricating a new standard that the American people should decide on the Supreme Court vacancy in an election year. So for 269 days the Republican Senate would not even meet with Merrick Garland, an unquestionably qualified and reasonable pick. Yet despite it now being an election year and a mere 45 days from election day, Mitch McConnell has now violated his own “standard” by insisting on voting on a replacement Justice selected by President Trump. As President Obama has pointed out, this kind of brazen and unfair double standard strikes to the core of the Court’s legitimacy and moral authority. The Court does not have the power of the purse or the sword — all it has is its credibility — and when you undermine that, you are breaking something fundamental.
As a practical reality, it is impossible to overstate the consequences of a solidly 6–3 Republican appointed Supreme Court. The Constitutional right to choose currently survives by a single vote, and there hundreds of issues where this is the case. Voting rights, immigrants rights, LGBTQ rights, you name it. RBG’s passing has clarified the human stakes of this election, especially for the most vulnerable. And it has also shown that the fundamental challenge facing the United States is minority rule…in a country premised on the concept of democracy — the will of the people. A mere 17% of the American population is able to command a majority in the Senate. In the House, where “politicians choose their voters” through gerrymandering, there are similar structural challenges to translating the will of the majority into political power. At the Presidential level, the electoral college is becoming an antiquated and destructive barrier to the will of the majority, with a Republican President only winning the popular vote once in 28 years. And this same dynamic is now present on the Supreme Court, where 4 of the 5 Republican appointed Justices were placed on their seats by a President who initially lost the popular vote. This is creating a fundamental, dangerous, and unsustainable disconnect between the will of the people and their elected government.
It all begs a key question: What can you do?
First, here’s what we won’t do. Giving up, learned helplessness, and cynical fatalism are luxuries we cannot afford. And the reality is defeatism often becomes a self-fulfilling prophecy, as Vote Save America has pointed out. Which is why, of course, all authoritarians try to encourage hopelessness — that nothing matters or will make a difference.
So lets be clear. If anyone had cause to be cynical, it is our ancestors who faced even more daunting challenges to their basic freedoms. We are the beneficiaries of their sacrifices, and we now have our own civic responsibility and duty to fight for democracy and the protections of those whose wellbeing is absolutely counting on this election. As Brittany Packnett Cunningham put it, this is a moment for choosing “discipline of hope over the ease of cynicism, fortitude over fatalism, strategy and organizing as a container for our anger.” It is a time for action and fighting back with everything we have. The darker it gets, the harder we have to fight.
Staying on the sidelines is not an option this election. We owe it to ourselves, to our ancestors, and to everyone counting on this election for the basic safety to fight with absolutely everything we have and nothing less.
With that in mind, here are the tools to make the biggest difference this election.
1) Elect Biden / Harris to fill Supreme Court vacancies.
The most fundamental and important step we can take is win the Presidency so it is Joe Biden filling Supreme Court vacancies.
There are several steps you can take on that front.
- Donate. This election will be a game of inches and every dollar counts.
- Make Calls to Swing State Voters. I am making calls every Friday with a group of friends and you are welcome to join us. The site includes trainings and the interface is really straightforward. Data science shows these calls increase voter turnout by an estimated 3.5%. For context, Trump won Florida and Pennsylvania by just over 1%.
- Text Voters. If you are not as comfortable calling (which I recommend), you can still text voters — which is a helpful way of getting them involved.
- Get involved in Voter Protection. This is going to be a critical effort with all the voter suppression strategies the GOP is engaging in.
- Sign up to volunteer for the campaign for several days in the last critical stretch.
- Be a pollworker! Many pollworkers are older and at risk during the pandemic.
- Advocate for Biden / Harris on social media. Many people don’t realize how many people see your posts online, which can often get into the thousands. Research has shown undecided and infrequent voters generally are more persuaded by articles and arguments for why you are voting for Biden/Harris rather than why you are against Trump. I fully recognize that highlighting the danger of the latter is often imperative, but the reality is if you want to persuade people you need to make an affirmative case of what you are for rather than simply what you are against.
2) Help flip the Senate
We are going to need a Democrat controlled Senate to confirm Supreme Court vacancies and institute even more structural reforms to make sure majorities can govern in this country. The best way to do so is the donate to Flip the Senate. As it stands, these are the most competitive Senate races. So if you want to donate individually, donate to John Hickenlooper, Mark Kelly, Sarah Gideon, and Cal Cunningham. We need four seats to flip the Senate.
3) Vote!
Make sure you are registered, check early voting timelines in your state, and request a mail ballot if you want to vote remotely and the process isn’t automatic for your state (which is typically the case).
And make sure you are reaching out to all your friends and family to confirm they are voting as well.
We are all going to have to fight with everything we can this election. Get in the arena and fight for democracy.
Addendum:
While this post isn’t a deep dive into what expanding the Supreme Court could look like if we need to cross that bridge, I’m including some resources understand what that could look like. At this point, nothing can be off the table. The Republican Party has continually engaged in asymmetric constitutional hardball where they break norms and are ruthless in achieving their objectives. The Democratic party cannot afford to continue bringing a knife to a gunfight. Which is why democracy expansion — including statehood for D.C., Puerto Rico, making voting a national holiday, expanding the franchise and ending the filibuster — are absolutely imperative. The basic legitimacy of our democracy — its ability to translate popular majorities into policy — is on the line.
When it comes to the Supreme Court, Congress has changed the composition of the Supreme Court seven times. If the Republican Senate forces through a hypocritical, norm breaking process consummated in effectively two stolen Supreme Court seats, expanding the Court may be the only option. That is not a move anyone should take lightly, but it is worth understanding and preparing for at an absolute minimum.
For more reading on the case for court expansion, you can check out the following resources.
