The Way to Honor Ruth Bader Ginsburg

When I heard the news of the death of Ruth Bader Ginsburg, I visited the campus the next morning to pay tribute to her and found several makeshift memorials had already been set up to the woman who had become a towering figure in the legal profession and a Justice of the United States Supreme Court. Ginsburg graduated first in her class at Columbia Law School in 1959, and in 1972 she became the first woman full professor at the school.

I remember first reading about Ginsburg’s work when I studied the landmark case of Frontiero v. Richardson (1973) in my constitutional law class at Harvard Law School in 1990. It was in that case that she helped convince a plurality of the court to apply “strict scrutiny” to government classifications based on gender in much the same way the court examines government classifications based on race. “We can only conclude that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny,” Justice Brennan wrote.

Years later, I had the honor to stand in the White House Rose Garden in June of 1993 when President Clinton nominated her to be only the second woman on the U.S. Supreme Court. “The announcement the president just made is significant, I believe, because it contributes to the end of the days when women — at least half the talent pool of the country — appear in high places only as one-at-a-time performers,” Ginsburg said that day.

In June 2013, she wrote a blistering dissent when a 5-4 majority of the court struck down a key provision of the Voting Rights Act in Shelby County v. Holder. Rejecting the Republican argument that the Voting Rights Act was no longer needed because racial discrimination in voting had declined, Ginsburg explained that the decline was precisely because of the very law that Republicans hoped to eviscerate by eliminating requirements that southern states get preclearance from the Justice Department before changing their voting laws. “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” Ginsburg wrote.

She was right. “Within 24 hours of the ruling, Texas announced that it would implement a strict photo ID law,” according to the Brennan Center for Justice. Two other states, Mississippi and Alabama, also began to enforce laws that had previously been barred because of federal preclearance, the Center explained.

Ginsburg’s death comes just weeks before the next presidential election and foreshadows fundamental structural problems with our system of government. Democrats have won the popular vote in six of the last seven presidential elections (1992, 1996, 2000, 2008, 2012, 2016), yet the Supreme Court has not had a majority of Democratic appointees since 1969. This is undemocratic and must be changed.

Part of the problem, of course, is the electoral college that allowed George W. Bush and Donald Trump to assume office and appoint Supreme Court Justices, even though they both lost the popular vote. Any system that allows a minority of powerful people to dictate the decisions of the government does not reflect the will of the people.

But the other problem is that the Republican Party has adopted an inconsistent standard for how judicial nominations should be considered. Republicans even refused to allow a vote — just a mere vote — on President Obama’s Supreme Court nominee, Merrick Garland, in 2016 because, they claimed, it was too close to an election. “When Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in,” President Obama said in a statement on Ginsburg’s death. “Senators are now called to apply that standard."

The death of Justice Ginsburg in September 2020 comes even closer to an election than the death of Justice Scalia in February 2016, and yet Republicans, including Senate Majority Leader Mitch McConnell and Donald Trump, plan to push hard for a Supreme Court nominee, in violation of their own alleged rules.

“If an opening comes in the last year of President Trump's term, and the primary process has started, we'll wait to the next election,” Senate Judiciary Committee Chair Lindsey Graham once said. Now, we have already heard from McConnell and Trump that hypocritical Republicans will renege on their promise.

They must be stopped.

Justice Ginsburg tried to stay alive and healthy as long as she could to fight the good fight. We owe it to her to pick up the torch and continue the struggle for justice. We owe it to her to vote like never before in the November 3 election. And we owe it to her to resist any effort by Republicans to ram a new Republican nominee through the Senate before the next president is sworn in.

Her voice and words were desperately needed in America, and today we can honor her life and her legacy by carrying on the work she pursued, by voting in record numbers in the November 3 election, and by working to end the systems of oppression that perpetuate discrimination against women and people of color in America.

May she rest in power.

A memorial to Ruth Bader Ginsburg at Columbia University.