By Rachel Roncka and Ourania Parastatidis (Boston Latin Chapter)
There is no doubt that 2020 has been a year full of both historical significance and insurmountable loss. The word “unprecedented” is beginning to seem overused, yet there is no more accurate descriptor for all that has happened in the past 9 months. On Friday, September 18th, this calamitous sequence of events climaxed in the death of one of the nation’s most highly regarded decision makers, United States Supreme Court Justice Ruth Bader Ginsburg.
Throughout her lengthy career spanning both law and academia, she acquired a panoply of firsts. She was the first female professor to earn tenure at Columbia and aided President Obama in the passing of his first piece of legislation as president, the Lilly Ledbetter Fair Pay Act of 2009. This act is among the many victories RBG secured for women and the fight for equal rights. She was also an advocate for LGBTQ+ rights and became the first Supreme Court Justice to officiate a wedding between a same sex couple following Obergefell v. Hodges (2015). She contributed to the majority opinion of this landmark case, which guaranteed the right to marriage for same-sex couples across all 50 states.
Although RBG is a personal hero to many of us, it is important that we acknowledge she, like every human, is not morally irreproachable. Having served on the Supreme Court for 27 years, she was bound to make controversial decisions, as was the case in Sherrill v. Oneida Indian Nation of New York (2005). RBG delivered the 8-1 opinion on behalf of the court and her fellow Justices. In short, the court held that land originally belonging to the Oneida but just recently bought back from the possession of the city should not be exempt from state and municipal taxes. Over 200 years had passed after the initial sale of the land to local government, and it had developed in such a way where it could no longer be characterized as tribal land. Many view this ruling as insensitive to the history and cultural legacy of the Oneida and other Indian tribes, who have endured many wrongs at the hands of American settlers and government. The case is exceedingly complicated, but this criticism is entirely valid, and RBG herself claimed that this ruling would come to be the biggest regret of her life. This reversal of opinion mirrors her belief in the concept of a living Constitution, capable of evolving with the times and responding to the concerns of the people. She firmly believed in change and applied that belief not only throughout her career, but on an individual level as well.
The week after her passing, family, colleagues, and admirers came to pay their respects and say their final goodbyes while the Justice lay in repose beneath the Portico of the building where her impervious legal arguments and groundbreaking judgements made history. However, mourning proceedings and tributes to her legacy are shadowed by fear and anticipation over who will succeed her position. Upon her deathbed she pleaded that she not be replaced until the next president is elected, but later that night it was announced that incumbent President Donald Trump would proceed with his nomination. This action would contradict a rule that denies a president the ability to appoint a new Supreme Court Justice in their final term. Senate Republicans invoked this so-called ‘Biden rule’ to prevent President Obama from selecting Merrick Garland as successor to Justice Antonin Scalia in 2016. Their reasoning behind this was that the next Justice nomination should reflect the will of the people. Therefore, the people should first be allowed to vote for the next president, who would then appoint the new Justice. Had this rule been applied today, the next Supreme Court nominee would’ve become a key issue in the election. The primary difference between these instances is that we now have both a Republican president and a Republican-dominated Senate, whereas in 2016, our president was a Democrat at odds with the Senate. Any nomination made by President Trump would likely win the Senate vote easily because of their alignment in party and ideology. However, Republican Senators, Susan Collins (ME) and Lisa Murkowski (AK), opposed moving ahead with the nomination. Given that there are 52 Republicans in the Senate, 2 more would’ve needed to join their opposition to tip the scales in the Democrats’ favor and eliminate the possibility of a tie breaker vote from Vice President Mike Pence. However, there are no signs that any other Senate Republican will be defecting, thus President Trump will likely appoint Judge Amy Coney Barrett. The fact that the next Justice will be another woman is little consolation to reproductive rights advocates, as her pro-life stance is abundantly clear from her career history.
The lifelong position of Supreme Court Justice is one of immense power and influence, and allowing the current president to appoint a Justice who shares his conservative views could jeopardize current protections for reproductive rights, healthcare, members of the LGBTQ+ community, and more. Ruth Bader Ginsburg was a pioneer, legal warrior, and inspiration for Americans both young and old. Her legacy will live on in the future generations of lawyers, activists, and leaders fighting for true justice and equality. However, if precedent is ignored and the current president’s nominee is instated, that legacy will not be upheld by her successor in the highest court of our nation.