By Khalida Sarwari
If there were a Mt. Rushmore dedicated to influential scholars and leaders of American law, Ruth Bader Ginsburg would be one of a handful whose likeness would befit its grand stone face, says Dan Urman, who teaches a course at Northeastern on Constitutional law and the modern U.S. Supreme Court.
This would remain true, he says, even if she never served on the nation’s highest court.
The 87-year-old, who died at her home in Washington, D.C., on Sept. 18 from complications of metastatic pancreatic cancer, will be memorialized as an iconic figure who faced and overcame discrimination in her personal life to make history as the second woman to ever serve on the Supreme Court.
“Ginsburg basically changed the way that the Supreme Court and American culture understand gender equality and the meaning of sex-based discrimination,” Urman says.
Known for being a contemplative and precise lawyer, Ginsburg was well-respected by her peers, including those who disagreed with her ideologically (she was famously close friends with Antonin Scalia, a conservative legal legend and fellow justice). A beloved figure on the left, she achieved pop icon status with the nickname “The Notorious R.B.G.,” a reference to Brooklyn-born rapper The Notorious B.I.G., making her the subject of social media memes and a pair of recent films about her life: the documentary RBG and the legal drama On the Basis of Sex.
Although she arguably represented a leading progressive voice from the bench—as a champion of rights for women and people of the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community—Ginsburg was more conservative than she appeared, Urman says.
“She always thought that legal change should follow social and political change,” Urman says, pointing to her critique of the Court for the structure of its decision in Roe v. Wade. “This is someone who is very careful with her words, careful with her rulings. And that meant that she thought the best legal change was incremental, not sweeping.”
One of her most notable majority decisions was United States v. Virginia, a 1996 landmark ruling she authored in which the Court struck down the long-standing male-only admission policy of the Virginia Military Institute in a 7–1 decision. Her opinion opened the doors to women at the state-funded school, Urman says.
“She actually went back and spoke at VMI almost 20 years later and there were a lot of women graduates attending so it was this nice full-circle moment,” he says.
Another highlight of her career was her sharp dissent in the 2013 landmark decision, Shelby County v. Holder, regarding the constitutionality of two provisions of the Voting Rights Act of 1965. The provisions, which required federal oversight for certain jurisdictions with a history of discrimination to enact any changes in voting procedure, were ruled unconstitutional in a 5-4 decision. In her dissent, Ginsburg wrote that “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.”
“That’s another thing she was known for, especially later in her time on the Court: her sharp, passionate, and carefully-worded dissents,” says Urman.
Ginsburg’s death has sparked a debate over her vacancy because it gives President Donald Trump and Senate Republicans an opportunity to solidify conservative control of the Court, possibly for decades to come. Decisions protecting healthcare, women’s reproductive rights, protections for LGBTQIA communities, and immigration rights could all be overturned, Urman says.
With a 6-3 conservative majority, the expansion of the Second Amendment is also a possibility, he says. And if there is a second wave of COVID-19, we could see the Court reversing mandatory government shutdowns.
“You could just have a Court that strikes down most of the efforts by a newly elected Democratic Congress and President to change public policy,” he says.
On Saturday, the president said that he expects to announce his nominee for Ginsburg’s successor next week and that it will “most likely” be a woman. Emerging as front-runners on his shortlist are appeals court judges Amy Coney Barrett, a 48-year-old devout Roman Catholic who clerked for Scalia, and Barbara Lagoa, a 52-year-old Cuban-American from Florida.
Urman predicts that the president will nominate a replacement shortly, even within the week, in which case Republicans would need 50 votes in the Senate (with Vice President Mike Pence as a 50-50 tie-breaker) to confirm a nominee.
“Trump has been described as salivating to replace Ginsburg,” he says. “And if you’re looking at the number of conservative judges he has successfully appointed, the courts are a place where Donald Trump can point to demonstrable accomplishments.”
But a number of different scenarios could also play out, says Urman.
A Senate confirmation could take place during a Senate “lame duck” session later in the year, after the Nov. 3 election but before a new Congress and president take office in January. It’s possible, says Urman, that Trump could name a nominee and the seat would be left open until after the election to let voters weigh in at the ballot box.
“The argument is that it focuses people on what this election is really about the future of the Supreme Court and all of the hot-button issues the voters care about,” he says. “No longer are people thinking about Trump’s handling of the coronavirus or controversial behavior.”
In the event that a nominee is approved after the election and Democratic presidential candidate Joe Biden is elected, it’s possible that the Democrats respond by trying to expand the Court by at least three members, Urman says. Called “court-packing,” the idea is supported by some Democrats who want to add seats to tilt the ideological balance of the Court.
The idea has been floated in response to Senate Majority Leader Mitch McConnell’s refusal in 2016 to hold a Senate vote on Merrick Garland, who was nominated to the court by President Barack Obama after Scalia’s death. McConnell held the seat open for nearly a year until after the inauguration of Trump, who nominated Justice Neil Gorsuch.
But on Friday, hours after Ginsburg’s death was announced, McConnell said that the Senate would move quickly to begin the process of filling Ginsburg’s vacancy.
“McConnell is just going for power and switching the rules,” Urman says. “Quite simply, he has no shame, and he gets rewarded for it.”
It will be interesting to see, Urman says, whether Ginsburg’s death will boost turnout in November, and which side benefits.
“This news has upended politics and concentrated it at a level you couldn’t imagine,” Urman says. “Before yesterday, it was the coronavirus, the struggling economy, and racial justice issues. Those were the election themes. Today it’s the future of the Supreme Court.”
