By Joan Biskupic, CNN legal analyst & Supreme Court biographer
One year after the death of Supreme Court Justice Ruth Bader Ginsburg, schools and hospitals have been christened for her, scholarly awards created in her name and artworks designed with her visage.
Ginsburg’s pioneering women’s rights legacy endures, along with the signature lace-collar motif on T-shirts and trinkets.
But there’s another vestige of Ginsburg’s legacy that has captured national attention over the past year, the one left by her September 18, 2020, death that allowed President Donald Trump to name a third conservative justice — the one that now threatens Roe v. Wade and that lingers as 83-year-old Justice Stephen Breyer deflects questions regarding when he will retire.
Liberals today are reconciling the mixed legacies of Ginsburg, who died at age 87 after rejecting earlier calls from her own admirers to step down.
As the court flexes the muscle of its new conservative supermajority, many liberals bemoan Ginsburg’s refusal to retire while Democratic President Barack Obama was in office and could have named her successor. Some law professor critics, writing in The New York Times, Washington Post and elsewhere, have made that refusal the starting point for their disapproval of Breyer’s delayed retirement.
Other liberals, however, offer a nuanced assessment of Ginsburg’s past and America’s present.
“There’s no way she would have wanted the court to be in the place that it is today. But we can’t go back and change that fact,” says Fatima Goss Graves, president of the National Women’s Law Center. “I don’t think it undermines the dramatic work she did, for decades and decades, to protect women. … Do I wish that she was replaced by someone else? Absolutely. But I don’t think she’s the only one to blame here for that.”
Ginsburg’s memory, one year after her death from complications of cancer, holds multiple dimensions — as did her life. She first achieved national prominence as an in-the-trenches women’s rights advocate. She argued six cases before the Supreme Court, winning five of them and helping to guarantee greater equality under the law based on sex.
The Brooklyn-born Ginsburg became a justice in 1993 and, after a reputation as a moderate jurist on a lower US appellate court, began amassing a distinctively liberal record. By the time she died, Ginsburg was known largely for her dissents, as well as the opera-loving, weight-lifting persona she cultivated.
In 2013, a law student had dubbed her the “Notorious RBG” after Ginsburg penned a caustic dissenting opinion in the case of Shelby County v. Holder, as the majority rolled back protections of the 1965 Voting Rights Act. The meme went viral, and the reserved jurist became something of a rock star, especially to young women.
A year before her death, as she was fulfilling a speaking commitment in Buffalo even after discovering a recurrence of pancreatic cancer, she told the audience: “It was beyond my wildest imagination that I would one day become the ‘Notorious RBG.'”
Earlier, when liberals were urging her to retire, particularly when President Obama had the benefit of a Democratic-majority Senate, Ginsburg asked rhetorically in one 2014 interview, “So tell me who the President could have nominated this spring that you would rather see on the court than me?”
But two years later the fundamentals of Supreme Court nominations changed and for Ginsburg the stakes shot up. When Justice Antonin Scalia died in February 2016 and Obama nominated then-Appeals Court Judge Merrick Garland, then-Senate Majority Leader Mitch McConnell blocked all action on the nomination.
The following November, Donald Trump beat Hillary Clinton for the presidency. That meant Ginsburg, who wanted a Democratic president to name her successor, had to hang on until the end of 2020. She nearly made it. Her last months were spent in and out of the hospital, undergoing rounds of chemotherapy and other treatment.
On October 26, just days before the November 2020 presidential election, won by Joe Biden, Trump was able to gain swift GOP-controlled Senate confirmation for Amy Coney Barrett, a former US appellate judge and Notre Dame law professor.
Ginsburg saw that coming in her last days. She gave her granddaughter a message to make public: “My most fervent wish is that I will not be replaced until a new president is installed.”
Thousands of people traveled to the Supreme Court to pay their respects as Ginsburg’s casket was positioned at the top of the Supreme Court steps. She then became the first woman to lie in state at the US Capitol.
Even at the time, it was evident that she was leaving behind a significant record of achievement and providing the catalyst for a transformed court. Trump had offered Barrett the Supreme Court slot on September 21, three days after Ginsburg’s death.
America’s highest court, for decades resting on a 5-4 conservative-liberal axis, with swing-vote justices often providing moderation, suddenly became controlled by a 6-3 conservative supermajority. That has already caused a retrenchment on individual rights and liberal-era precedent.
Most recently, the court allowed a Texas ban on abortions at six weeks of pregnancy to take effect. The prohibition conflicts with the 1973 case of Roe v. Wade, which said states could not interfere with a woman’s choice to end a pregnancy before viability, that is, when the fetus could live outside the womb, at about 22-24 weeks.
Eyes turn to Breyer
Now, some law professors on the left have urged Breyer to consider the consequences of Ginsburg’s decision against retirement. (Like Ginsburg, Breyer was appointed by former President Bill Clinton, a Democrat.)
Writing in the Washington Post, Erwin Chemerinsky, dean of the University of California-Berkeley law school, said in May, “If he doesn’t want to risk having his seat go to someone with an opposing judicial philosophy — which just happened to the late Justice Ruth Bader Ginsburg — and if he wants to give President Biden the best opportunity to choose a successor who shares his values, Breyer should step down as soon as possible.”
Breyer, currently promoting a book and brushing off questions about any retirement plans, may believe he can avoid the plight of Ginsburg if he retires by the end of the 2021-22 session next summer. That would be several months before the November Senate elections, when Democrats face the most obvious chance of losing their current one-vote majority in the chamber.
Breyer, appointed in 1994 and entering his 28th term next month, lacks the celebrity status of Ginsburg.
Katie Gibson, a Colorado State University professor of communication studies who has analyzed Ginsburg’s writings, says some of that “Notorious RBG” attention may have distracted from her call for action in the law, particularly to preserve abortion rights.
“I really wonder about the cost of lifting her up as a heroic icon,” Gibson said. “Her legacy certainly deserves celebration, but people placed so much weight on her shoulders, looked at her as a savior, that they might not have been prepared for this moment now that she is gone.
“She was telling us that we have a problem, that we need to be moving in our states, doing the necessary work to protect abortion rights,” Gibson added. “Her plea for collective action was somewhat lost in the cultural frenzy that celebrated Justice Ginsburg as a heroic individual, and I think we are seeing the consequences of that now.”
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