AMERICAN politics, with its panoply of acrobats, jugglers and clowns, often resembles a circus, particularly in election years.
This year’s performance, already unprecedented in many ways on account of the incumbent president’s waywardness and the exigencies imposed by the coronavirus pandemic, took a somewhat unexpected turn last Friday with the unfortunate demise of supreme court judge Ruth Bader Ginsburg.
It’s hard to imagine the demise of a jurist, no matter how eminent, throwing any other semi-democracy into such a tizzy. But let’s not forget we are talking about the greatest show on earth — where, all too often, anything goes.
Hence the very same senators who just four years ago thwarted Barack Obama’s constitutional right to fill a supreme court vacancy nine months out from a presidential election are now adamant that Ginsburg must be replaced immediately, even though arguably the nation’s most consequential election is less than six weeks away.
But then, hypocrisy could be classified as an essential ingredient of the circus menu. Besides, the long-standing desire to entrench a conservative majority on the supreme court bench was a key part of the Republican playbook in 2016.
Hypocrisy may be an essential ingredient of the circus menu.
Donald Trump has already installed two reprehensible supreme court judges (alongside many others in lower courts), and is keen to turn the duo into a trio. He says he would prefer to replace Ginsburg with another woman, and two of the top contenders are Amy Coney Barrett — who once said a “legal career is but a means to an end … and that end is building the kingdom of God” — and Barbara Lagoa, the Miami-born daughter of Cuban exiles, who has the added advantage of potentially helping to swing the Latino vote more firmly behind Trump in Florida.
Whoever his choice may be, the judge would turn the hitherto 5-4 conservative advantage into a 6-3 supremacy, entrenching a right-wing majority in the judicial wing of America’s government for years, and possibly decades, to come.
This matters because of the supreme court’s standing in the political hierarchy as the ultimate arbiter of right and wrong — almost a politburo of sorts. One of the leading concerns is about the likelihood of the 1973 Roe vs Wade judgement, which gave American women the right to choose whether to have an abortion, being overturned.
The US supreme court is meant to interpret the law rather than lay it down. Yet there are numerous instances of the judiciary advancing progressive causes, notably by overturning racial segregation in educational institutions in the 1950s, and legalising contraception and abortion in the following two decades. Ginsburg, as a lawyer, argued six cases before the court, and won five of them; the crucial ones related to gender discrimination. One of the most prominent cases related to a father being stripped of social security benefits on account of being a male after his wife died during childbirth.
In combating the patriarchal prejudices of the justices she was arguing before, Ginsburg recognised that a clear instance of discrimination against men was a fruitful means to demonstrating to an all-male panel that equal rights should apply to all human beings.
Whether such judgements should be left to an unelected panel picked on a partisan basis is a wider dilemma for American democracy. It has concentrated minds at least since the mid-19th century, when the anti-slavery inclinations of the first Republican administration under Abraham Lincoln were routinely being thwarted by a supreme court bench drawn largely from the segregationist South. Nearly 100 years later, Franklin Roosevelt described the bench as “nine old men” bent upon resisting his reforms and threatened to pack the court — that is, expand its size by appointing his choice of judges to neutralise its bias.
The threat worked for a while, as it did in Lincoln’s case in the 1860s, but the main issue remains unresolved. Joe Biden is being pushed to pursue Roosevelt’s pledge, should he win on Nov 3. But who knows whether that will happen. In fact, it’s perfectly possible that the choice of president will be decided by the supreme court, as it deplorably was in 2000. Ginsburg’s dissent at the time stated: “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
That scenario may be revisited in the months ahead. Overall though, although the judicial record of “the Notorious RBG” may not entirely stand up to progressive scrutiny, the Russian poet Yevgeny Yevtushenko’s verdict is surely apropos: “How sharply our children will be ashamed,” he wrote in the 1960s, “taking at last their vengeance for these horrors/ remembering how in so strange a time/ common integrity could look like courage.”