I've been sad about the passing of Ruth Bader Ginsburg since Friday. But today seems like a good day to stop being sad that she died and start remembering how thankful we are that she lived. And she was a badass revolutionary with big ideas in a tiny and very dignified package. When asked when there will be enough women on the Supreme Court, she replied "When there are nine."
And that blows my mind. As a Gen X woman, I was raised believing I had ideas and thoughts that were worthwhile and that I could go out in the world and blaze my own path, but we fell short a bit in our dreams of the future... in our fantasies we simply made enough room for proper representation because no matter how progressive our parents may have been they tended to stop at representation -- well short of world domination. Which was probably a disservice? Was RBG advocating world domination? Perhaps no. But this comment does illustrate that maybe we haven't been thinking big enough. Maybe we were leaving too much room for those who had always been there. Maybe we needed to think more about who else needed a seat at the table and join cause. Maybe only people who have at one time or another been subject to rulings from the Court or legislation that deprived them of Constitutional protections always afforded white men should be eligible to serve. Maybe it's time for the Bretts of the world to sit the fuck down for a minute.
But they won't, because the Bretts of the world believe it is theirs. They have benefited from a country club secret society kind of affirmative action that no legislation could imperil. Dudes with every advantage failing up at every opportunity -- and there are so, so many opportunities for them. Now, this is not to say all white men are badstupid. I am not saying that and I do not believe that to be true. I know a number of awesomeclever white men and they know that the badstupids among them give them a bad rap.
Here's the thing though. Women are 51% of the population. So there's a majority right there. Add to that every other group that has been less equal in the history of this nation and you have an unbeatable majority. Don't forget that. The loss of our champion on the court hurts. Donald Trump, an impeached president who lost the popular vote by 3,000,000 in 2016, naming her replacement is excruciating. So while there is hope that it doesn't get done, we should be working like it already is. The Senate GOP has shown us who they are. Hope here is misguided. But it does make me think of this E. Jean Caroll quote -- and this brave woman, one of so many that have accused our current president of sexual assault has given me some good advice over the years so we should heed her.
The most dangerous woman is a woman who has nothing to lose. The most dangerous man is the man who has EVERYTHING to lose.
So dangerous women of America, let RBGs memory inspire you to work like hell for the next 41 days. Goal: world domination.
In 1971, newly assigned to cover the Supreme Court, I was reading a brief in what would ultimately be the landmark case of Reed v. Reed. It argued that the 14th Amendment's equal protection clause applied to women.
In thinking about the Supreme Court, and reliving the Bush v. Gore* trauma, it occurs to me that any justice appointed by a party in a potential lawsuit should recuse himself. (Yeah I used himself. Not sure Trump will actually appoint a woman despite this lovely clip that shows he is thinking about it.)
In Bush v. Gore neither was an incumbent so it is a very different scenario and even if you recused the two justices appointed by one of the candidates' fathers, the result would have been the same as Clarence Thomas was with the majority and David Souter dissented with Ruth Bader Ginsberg, Stephen Breyer, and John Paul Stevens.
So theoretically, we should have up to three justices recuse themselves from weighing in on any court fight following the November 3 election. But we won't. And I wanted to understand why. So I asked a smart woman I know who knows a lot about the Supreme Court and ethics. And this is what she said:
As for Supreme Court and recusal...I hate to tell you this. It’s the only court in the country, state or federal, the operates without an official code of ethics. The only time justice will ever recuse is if that justice himself or herself believes it should be done. No one else reviews the decision. And no one else forces it. There are calls for reform regularly but SCOTUS doesn’t even have an official committee looking into it (🙄 not that a committee fixes it—I’m currently writing a critique about the committee Roberts assigned the task of sexual misconduct rules reform—there is an ethics code for the lower federal courts)This is also why the 83 complaints against Brett Kavanaugh were all closed without resolution. There is no jurisdiction over the Supreme Court for discipline or recusal.
It is appalling. The only meaningful external check on a SCOTUS justice is impeachment, which is basically impossible (requires same standards as presidential impeachment so tough to get a conviction in the senate). I have so many interesting examples of recusal. One I always teach is Scalia refusing to recuse when Cheney was a party after going duck hunting with Cheney (and riding on Air Force II). The lack of an official ethics code is part of why the politicization of the court by Trump is so dangerous. The process for selecting a justice has always been flawed, but at least past presidents would appoint nominees sometimes not from their own party, and with an eye toward some sort of balance, even if geographic or religion, and that ‘balance’ functioned as an informal check. We now have a federal judiciary that is largely Federalist Society b/c of Trump, and it may be the majority of SCOTUS if he has his way. The only other president to have such a dramatic change on the judiciary was Carter, when he gave us more women and minorities than all presidents combined before him (including giving us RBG - he put her on the DC Circuit). Sadly, few of the Carter appointees are still on the bench.
* In hindsight we may look at Bush v Gore as the beginning of the end, not just because the Supreme Court stopped the recount, intervening in a fundamentally anti-democratic manner, but because that crunchy earth-tone wearing boring Al Gore cared deeply about climate change back in 2000. It actually makes me feel ill to think about how different the world would look if all of our "democratic" institutions fully supported democracy.
PS Jimmy Carter is awesome.