At the United States Supreme Court in Washington D.C. this week, the American flag flew at half-mast.
After lying in repose at the Court where she served for 27 years, RBG, as she was notoriously known, would become the first woman in history to lie in state at the U.S. Capitol – where a furious political battle already was taking place over her vacant judicial seat.
As an Australian lawyer who revered this extraordinary legal giant, I had in my mind the twinkling kindness and powerful intellect of a woman who tirelessly invested in future generations. Even as she battled illness, she addressed thousands of us at a Washington event last year and on numerous occasions visited Georgetown Law School, where I recently graduated among a law cohort where women comprised the majority.
Across the U.S., women like me, live her legacy.
It was her meticulously crafted judicial opinions and powerful dissents on a largely conservative Supreme Court that made Ginsburg one of the most respected, influential and notorious legal figures in America and perhaps the world.
"Dissent speak to a future age. It's not simply to say, 'My colleagues are wrong and I would do it this way.' But the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that's the dissenter's hope: that they are writing not for today, but for tomorrow."
People grieve for RBG and for their country
Outside the Supreme Court under the watchful gaze of the statue of Lady Justice (whom many identify with Ginsburg), I spoke with Americans of all walks of life who came to pay their respects to the woman they called a “legal force of nature” and an “irreplaceable human being”.
Children with their mothers and grandmothers, chalked colourful messages across the sidewalk: “Rest in Power RBG”, “Forever Notorious”, and “We will take it from here”.
“There are just so many things that we can do today that we have to thank and give [Ginsburg] credit for,” said Amy Hosseinnian, a young bartender in Washington D.C., “but it’s also important we recognize there is a hell of a lot that needs to be done for there to be a measure of equality for everyone.”
Samantha Clark, a D.C. based scientist, said:
“I am Jewish myself. RBG was one of the most famous Jews in American life and for all women, she was a huge pioneer. The most basic freedoms that American women enjoy now, like having a line of credit and living an independent life without a husband, were argued [and won] by RBG.”
A mother knelt beside the colourful memorial of flowers and cards blossoming across the pavement. Her young daughter placed a gentle arm around her shoulders.
Ginsburg touched the lives of women and men across the generations and led her country, and much of the world, to a better understanding and experience of gender equality.
She will be remembered long after we grow old as a fierce advocate, brilliant strategist and highly principled defender of equality, who devoted her life on and off the judicial bench to removing the barriers that prevent people from experiencing equal justice under law.
Justice Ginsburg famously said:
"Fight for the things that you care about, but do it in a way that will lead others to join you."
Without raising her voice, Ginsberg used the power of her intellect and original strategic ploys to show how the law discriminated on the basis of sex and explained a lived reality for women that many of her male colleagues had not considered before.
Using cases involving discrimination against men, she ingeniously carved out the legal inroads for future legal challenges that pioneered many equal rights for women.
For instance, utilising the Fourteenth Amendment's equal protection clause, she toppled the entrenched system of discrimination built on gender stereotypes; moving the Court away from overly broad generalisations about women and men towards “exacting scrutiny” of laws that treated women differently to men.
“Ginsburg fought for what was right and she did so in a fair, honest and even kind way,” a mother said, as she looked upon the Court. “She was a five-foot force of nature,” her friend added.
Anna, a federal government employee, cradled her newborn son in one arm and her toddler in the other:
“As the mother of two boys, I want to be able to teach them what it means to have racial and gender justice […] and for them to lead others.”
On the streets of Washington D.C., the sense of loss was devastating, made worse by the venomous and dangerously partisan political contest to replace Ginsburg on the Court and to elect the next President of the United States.
Ginsberg’s death, just six weeks before the U.S. elections, added another explosive element in the critical tug-of-war over the future trajectory of this deeply troubled superpower.
Anna said, grimly:
I fear for the country. If [President Trump] is re-elected and becomes a second-term president, he doesn’t have anyone he has to please anymore, in terms of constituents or voters, because this is it. It’s really scary, especially from an environmental and racial justice perspective. We have already seen what he can do in his first term and that will be even worse in his second.
“If [President Trump] tries to get another person into her seat before the election, there’s going to be a war in America. It’s scary, very scary,” said Gwynn, a 65-year-old from Malta, who recently became a U.S. citizen in order to vote in this presidential election.
Kathy, a retired social worker chokes up thinking about all the Unites States has lost:
“It’s just devastating. I feared for the country before [Justice Ginsburg] died, but I fear for it more than ever now. A six-three conservative court could take the country back to the fifties.”
The expectation of a 6-3 conservative majority on the Supreme Court bench has many Americans worried. Since 1969, Republicans have picked 14 Supreme Court Justices, while Democrat Presidents have appointed just 4.
The ultra-conservative configuration now looms as President Trump’s most lasting legacy, possibly shifting American law in areas including healthcare, abortion, same-sex marriage, racial justice and gun control for generations.
President Trump has stated brazenly that he wants a full Supreme Court bench before the election so that it is prepared to decide on the legality of mail-in ballots.
Barely an hour after the Supreme Court announced Justice Ginsburg’s passing, Senate Majority Leader, Mitch McConnell vowed that President Trump’s judicial nominee would receive a vote on the Senate floor.
Past promises and precedent were quickly forgotten by Republicans, reflecting Joe Biden’s lead in the opinion polls and President Trump has used Justice Ginsburg’s death to rally and unite his political base around the beating chant of “fill that seat”.
Under the United States Constitution, the President has the power to nominate judges and the Senate has the power to confirm them. Trump is expected to announce his nomination at 5 pm on Saturday, 26 September and has promised it will be a woman.
Judge Amy Coney Barrett, 48, of the Chicago-based 7th Circuit and Judge Barbara Lagoa, 52, of the 11th Circuit, were widely reported to be the top contenders for the President’s nomination. Both have conservative legal backgrounds with the additional attraction of political utility in the election.
Both nominees are young and, with a lifetime appointment to the Supreme Court, could tilt the balance of power on the Supreme Court for generations.
As Republicans have a 53-47 majority in the Senate, unless four Republican senators were to respect the so-called “Biden rule” and decline to vote on Trump’s nominee until after the election, the judicial seat will be filled by Trump’s choice.
The political fight will be ferocious and the fallout bitter with calls already for retribution if the Democrats win control of the White House and Senate.
In the days before RBG’s death, she reportedly told her granddaughter, Clara Spera, “My most fervent wish is that I will not be replaced until a new president is installed".
It is very unlikely her final wish will be honoured, a heartbreaking reality for those who have come this week to pay their respects to a champion of equality and fairness for all. On the streets of Washington D.C., the mood was grim, even for this terrible season of loss and grief.
Justice Ginsburg’s indelible legacy, however, has left many with an enduring sense of responsibility.
“It’s going to be really tough,” said Walter Lee, an elderly African-American man, “but all in all we are going to stay strong and continue on.”
A mother proudly watched her son chalk "R-B-G" into the pavement.
She turned to me and said solemnly:
"[Justice Ruth Bader Ginsburg] represented sensibility amongst the chaos of partisanship. She brought our country far.”
Claire McMullen is a lawyer and writer who recently completed a Masters in International Legal Studies at Georgetown University Law School in Washington DC.
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