Early Mourning Thoughts About RBG

Today is a day of mourning for the passing of Ruth Bader Ginsburg. I howled in agony when I heard the news. My daughter admonished me to let the lady die in peace; she has earned it.

But I couldn’t sleep, so there is no peace for us who are struggling with current disasters. This is a big one.

I found some hope this morning. The first came from Ruth’s own legal thinking, her putting forward the concept of “equal citizenship stature.” Those words of one of her former law clerks, Neil S. Seigel, now a professor at Duke Law School, caught my rage and released some of my angst. Ruth applied it over and over again, particularly in discrimination cases that hurt both men and women. The same idea can be applied to the Supreme Court, that a partisan bench of justices, whether Republican or Democrat, hurts all of us. The Supreme Court needs to represent the purest example of “equal citizenship stature.”

A lot of the Democratic candidates for President talked about addressing not only the partisan imbalance of the Supreme Court, but also the undermining of the principle of impartiality. As Kamala Harris said, “We are on the verge of a crisis of confidence in the Supreme Court. We have to take this challenge head on, and everything is on the table to do that.”

There are some good proposals out there for addressing both the partisan nature of court appointments and for preserving judicial impartiality. One is to expand the number of judges to 15, create panels of a lesser number from that pool of 15, and permit all 15 to review in particular cases. An additional advantage of this proposal is that more Supreme Court cases could be heard.

Another good suggestion is that the Supreme Court would be made up by a lottery from the federal appellate court judges. Panels of nine justices would be chosen randomly from the pool of about 180 judges with no possibility of packing the panels for partisan advantage.

These and other ideas will get airing in the days and months to come. For that reason, I do not attempt to flesh them out, nor do I give adequate references. For an in-depth reading of the two above ideas, look for Kurt Walters’ article in the Harvard Law and Policy Review.

For now, let us take a breath and learn more about the legacy of Ruth Bader Ginsburg. She truly fought for women’s rights and for men’s rights. She changed the way we think about men and women in terms of the law.

She also showed us the power of the dissenting opinion. In her career she had more famous victories pleading before the Supreme Court than she did serving on the Court. During her service on the Court, she became the loudest and most articulate voice of dissent, going so far as to challenge Congress to change the law that permitted the flawed Court decision.

I am saying, don’t despair. Be like Ruth. Think this crisis through. This may be yet another opportunity to improve a system that’s become more and more damaged over the years. As Ruth said, “I do hope that some of my dissents will one day be the law.”