If you haven’t heard by now, then there is a good chance that you live under a rock or in a fallout bunker hidden away from civilization: Ruth Bader Ginsburg has died.
The stalwart liberal justice of the Supreme Court, who spent 27 years on the highest bench in the land, died of complications due to pancreatic cancer on Friday, Sep. 18. She was 87 years old.
As many have observed, this moment was basically inevitable. Ginsburg, advancing in years and constantly in and out of the hospital due to cancer, was assumed not to have very much time left even by the beginning of the Trump presidency in 2016. Most believed that she would be the first justice to go under Trump’s tenure, and thus stand to be replaced by Republicans. Surprisingly, she ended up being the third justice to be replaced by the current administration, after the late Antonin Scalia and Anthony Kennedy respectively.
Nevertheless, to the dismay of left-leaning voters and supporters of judicial activism (where the two groups fail to overlap at any rate), Ginsburg’s death comes at potentially the worst moment. As I write, President Trump seems poised to cement an originalist-conservative majority on the Court that would last for at least a generation.
Yet, more interesting than the haranguing over the Court are the actions and rhetoric of both sides and what they reveal about America, and perhaps the future of the American project itself. The death of RBG has stripped away the façade of civility that has already begun to fray at the edges. Underneath, we see the exposed machinery of political power, and it does not look pretty. Like two people trying to drive the same car, we are treated to the whirring and grinding of gears as they fight over the transmission, each having a fundamentally different idea of where we’re going and how to get there.
The moral imaginations of the two sides, to take an obvious example, are diametrically opposed. Among committed political leftists and left-leaning people, RBG had already arisen to the status of something like a saint even before her death. In 2018, Focus Features produced a hagiographic biopic about Ginsburg called On the Basis of Sex. Ginsburg became an icon associated with women’s rights, most notably her support for expansive abortion rights. So much so that after her death there were candlelight vigils in several dozen cities mourning her loss, some ironically gathering near the Capitol to sing, of all things, John Lennon’s “Imagine”.
A quick aside, perhaps singing a song that begins with “imagine there’s no heaven” is a poor choice for a funeral vigil, but what do I know?
By the same token, while liberals and progressives mourned the passing of St. Ginsburg and now patiently await the time they can see her incorrupt body lying in repose so that they might touch their prayer beads to her holy relics, conservatives and reactionaries took an opposite tact.
Like the English burning Jean d’Arc at the stake, not only were conservative leaders ready to get on with the business of appointing RBG’s replacement, but more mundane right-wing culture warriors were content to revel in the schadenfreude of her passing. As news emerged Friday evening of Ginsburg’s death, certain parts of right-wing Twitter were awash in celebration and crab raves proliferated. In many right-of-center communities, Ginsburg is at the very least intensely disliked for her legal philosophy, most specifically her strident support for abortion rights, which has seen her painted as a villain by the right. Rep. Doug Collins, for example, a US Representative from Georgia took the eve of Ginsburg’s death as an opportunity to tweet: “RIP to the more than 30 million innocent babies that have been murdered during the decades that Ruth Bader Ginsburg defended pro-abortion laws.”
And while that may seem ghoulish to some, it was relatively tame in comparison to some of the pronouncements that found their way onto the Internet from verified journalists and intellectuals, most notably Reza Aslan who promptly tweeted: “If they even TRY to replace RBG we burn the entire f—–g thing down.”
But alright, perhaps this is just whataboutism in the labyrinthine halls of the Internet. You can find someone espousing any political viewpoint saying things that some would find questionable. What else is new?
The reason I chose to highlight these sets of reactions is because I think it reveals something of just how deep the divide goes within American culture, to the point where a person that one side holds up as a saintly figure the other despises as not just a bad person but an enabler of mass murder.
And for once, I think both sides are being completely reasonable and true to their principles. If pro-life conservatives are correct in their fundamental moral assumption that the unborn are people with a right to life, then their condemnation of Ginsburg as a villainous figure is not forceful enough, all things considered. Likewise, for pro-choice progressives, who earnestly believe that abortion is a fundamental human right, Ginsburg’s strident defense of that right makes her nothing less than a champion for civil liberties in the tradition of Martin Luther King, Jr. or Susan B. Anthony.
And thus we return to a consideration of power, that omnipresent specter behind all human relations when considered on a large enough scale.
Previously, America idolized (some might say, fetishized) an ideal of representative democracy, one in which the people got a say, political leaders were honorable public servants, and our disagreements over tax policy or the best way to fund this or that social program didn’t keep us from seeking truth, justice, and the American way together. Never mind that America was literally never like this, we are quickly and painfully coming to understand that there is not one America with many separate subcultures. There are at least two, maybe even three or four, Americas, and under those rules classical understandings of American republicanism just do not work.
A nation wherein something like half the population believes that, in the Roe decision, the highest court in the land allowed the legal murder of human beings to proliferate and become enshrined as a right while the other half believes that very same decision to be a cornerstone of civil liberties for women is fundamentally ungovernable. A people with two diametrically opposed moral philosophies cannot be controlled, save by a tyrant. To reason to a compromise, two groups must have shared beliefs to begin from, and I fail to see what those could be. Each side believes that the other’s conception of life, liberty, and the pursuit of happiness is instead a form of oppression.
In such circumstances, all we are left with is power, and right now the power to appoint a new justice, one that will change the direction of the SCOTUS for decades, rests with the Senate and the President. Charges of hypocrisy were, no doubt, ready on the lips of congressional Democrats the moment they heard the fateful news of Ginsburg’s passing. Nobody who is not already on side for Trump’s pick will be convinced by McConnell’s nuanced rationale for his decision to push through the appointment. Likewise, nothing could convince conservatives that they shouldn’t seize this golden opportunity to cement their hold on the court.
In the end, liberals and progressives will walk away feeling cheated, feeling like the systems of power in this country are rigged against them. Conservatives will walk away, likely feeling a bit scummy, but rationalizing their behavior based on doing what was necessary to protect religious liberty against a relentless onslaught from the left, and of having a shot at striking down Roe, a promise that they have made to their base for over thirty years.
The real effect of this debacle has been to blow away any pretense that the Supreme Court is a passive, neutral arbiter of constitutional law. Rather, SCOTUS is the real unitary center of power in the US government, an appointed oligarchy where the members rule for life, that legislates from the bench, can read rights and duties into the Constitution as if out of thin air, and can impose those interpretations unilaterally on over 300 million Americans as if by imperial diktat.
It doesn’t matter how or why it became like that, or if it ever was anything else. Both sides in this existential culture war want to seize control of SCOTUS as a weapon to wield against their enemies and shield their own side. “Red America,” as it is called, just so happened to have a perfectly lined-up shot on goal. I suspect, however, it will not be the end of the match. Many left-leaning outlets and intellectuals have already revived talk that began swirling during Justice Gorsuch’s appointment of the potential for a Democratic president and legislature to ram through a court-packing bill similar to the 1937 Judicial Procedures Reform Bill.
And barring the kind of electoral success that would allow that to happen, there might be, as many in the media-industrial complex seem to believe, a more fiery response come election night.
Either way, with the death of Ruth Bader Ginsburg, whatever one may think of her, the American people must face the consequences of an utter breakdown of the American myth. Where that leads is anyone’s guess.
Photo Credit: The Associated Press
