On Sept. 18 when news broke that Supreme Court Justice Ruth Bader Ginsburg had died, many felt that any semblance of America having a true democracy had been buried right along with her.
If that statement sounded melodramatic at first, the validity of that fear was proven in the aftermath of Ginsburg’s death.
“My most fervent wish,” 87-year-old Ginsburg said to her granddaughter while she was on her deathbed, “is that I will not be replaced until a new president is installed.”
Her dying wish is superseded by a constitutional order, though, which states that it isn’t constitutional to choose a replacement nomination during an election year.
In a swift slap in the face to both her wish and the system of law and order, President Donald Trump has officially nominated extreme conservative and originalist Amy Coney Barrett to the Supreme Court with backing from many members of the Republican party.
The last time that a justice was elected to the Supreme Court during an election year was in 1880.
In fact, this is a precedent that Republican Senate Majority Leader Mitch McConnell affirmed four years ago, with support from Barrett herself, when former President Barack Obama attempted to nominate a supreme court justice replacement for the late Antonin Scalia.
Both Mitch McConnell and Amy Coney Barrett argued this when it was time to fill Scalia’s seat. McConnell even refused to hold a hearing for Barack Obama’s nominee, Merrick Garland, explaining that it was too close to a presidential election — in March, nearly 8 months before the election.
This hypocrisy is important to note, not only from a Democratic perspective, but really to realize the flaws in both sides — both parties have erred to the point where it now all just feels like a game of tag. One political party rushes to replace a Supreme Court justice and the other side calls “that’s unconstitutional!” But when the roles reverse, that same party sometimes forgets what they called unconstitutional. Both sides have attempted it.
It’s, in a way, like when children are playing tag. When one kid gets tired of running and gets tagged they exclaim, “No, I’m on a base! You can’t get me out while I’m touching this tree!” But the next time they’re the one that’s “it,” they tend to have no memory of declaring this new “base.”
Politics — a field with massive and highly consequential impacts on the daily lives of millions — should not bear semblance to a childhood game of tag.
It’s time to end the game. The majority of Americans do not think it is right for the current president to choose a replacement for RBG because it is the duty of the next president, especially given that it is so close — less than a month — to an election, which six million people have already voted in.
The definition of democracy is a government in which the supreme power is vested in the people. Americans should have a say in who the next Supreme Court justice is and the first way to honor that say is by allowing the next elected president to make the decision.
We at The New Paltz Oracle believe that when our voices are not heard, it is not only our right but our duty, especially in a democracy, to ensure that they are — whether through protests, letter writing, or in this case, voting.
Should Barrett make it onto the court, she will be one of the voices who decides on issues as significant as healthcare just weeks after she is appointed. During this term the Supreme Court will also be hearing cases about religious freedoms vs. gay rights (in the case of the Catholic adoption agency in Philadelphia refusing to place children with gay couples), whether Google has become a monopoly (Oracle v. Google) and the Mueller investigation, among others.
With the death of RBG, practically everyone other than straight, cis, able-bodied citizen-status white men will be impacted by the above legislation. If Barrett is her replacement, the rights that so many had once trusted to be secure may be in question.
Will women be granted the right to take full ownership and autonomy over their own bodies? Will people with preexisting conditions still be entitled to healthcare? Will gay couples be granted the same freedoms as all other couples, such as the ability to adopt? Will immigrants without citizenship status have representation in the House of Representatives?
These should not be questions. These should be inherent facts of life, especially for those living in a country like America that boasts “freedom for all!” like a broken record, yet routinely forces people to question whether their rights are safe and whether they misheard the song, and it’s really always been “freedom for *some!”
Although it’s easy to fall into the rhetoric that “the system is broken,” it’s important to acknowledge the harsh truth that if immigrants, women, people of color, members of the LGBTQIA+ community, people living with disabilities and other minorities are worried about whether they will be able to live freely, the system is probably working just according to its plan.
The legal and social system of America was not founded upon the belief of freedom for all; It was founded on the belief of freedom for the privileged. Every fluffy-sounding and idyllic promise America states in its constitution like commandments was originally (and sometimes only ever) meant for white, landowning men. Everyone else has never truly been afforded the luxury to sit back and assume their rights would be maintained.
We at The Oracle acknowledge that when we see systems of oppression continue to threaten the rights of marginalized communities, it is not a sign of the system being broken, but rather a sign the system is working just fine. We believe the system need not be fixed, but rather be recreated.
As activist, educator and writer Brittany Packnett Cunningham tweeted moments after RBG’s death, “I know the popular analysis is going to be ‘we’re screwed,’ and I feel you. But nah, RBG didn’t go out like that and neither are we.”
“We gon’ fight. That’s what we’re gonna do. I’ll be realistic. The fight just got way harder. But I won’t be fatalistic. Not with my ancestors’ blood running through my veins,” she said, referring to her Black heritage and the history Black people have of consistently and unrelentlessly being ready to fight for their rights.
We believe that, while the loss of RBG is heartbreaking and worrisome, hopelessness is the enemy of justice (as said by Bryan Stevenson). We encourage everyone to be active in their own local communities and ensure they do not give up or lose hope during the fight for equity and justice.
If the nomination of Barrett is successful, there certainly will have to be quite the fight. She previously clerked for Scalia and is considered his ideological mirror — save for when she’s even more conservative than the judge who voted to strike down abortions and gay rights rulings.
One of the biggest concerns in mainstream media has been whether Barrett would be able to help overturn Roe v. Wade. She has certainly made herself clear in her repeated statements identifying herself as a firm pro-life advocate. She even signed an ad urging the overturning of Roe v. Wade and its “barbaric legacy.”
But Barrett stated in 2013 and 2016 that she doubts the court will ever overturn the law and wants to focus on new changes. For instance, she’d like to restrict people in their third trimester from getting the procedure, a move that could prove detrimental to those facing dangerous or life-threatening pregnancies.
An even more quickly-approaching issue Barrett might have legal power over is the Affordable Care Act, also known as Obamacare, which will be discussed in court this year. In the third challenge to the healthcare program, if the Trump administration is successful, the 22 million Americans with preexisting conditions (including millions more who had COVID-19 which is considered a preexisting condition) will lose access to Obamacare.
The person who replaces Ginsburg will certainly have an incredible amount of power in their hands to determine the future of many significant and potentially landmark rulings.
Beyond mourning RBG in terms of who she was and what she did for the progress of our nation — as one of America’s most beloved feminist icons and favorite legal figures — Americans (especially on the left) are now forced to reckon with the fact that this tragedy is twofold: it’s tragic that she passed away, but it is also tragic that so many people were relying on one 87-year-old woman to continue protecting our rights and to keep our democracy in tact.
There is much to be done. As the legend herself said, “Fight for the things that you care about. But do it in a way that will lead others to join you.”
