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Reflections on RBG: Why America must protect her legacy

As America mourns Ruth Bader Ginsburg, Adam Epstein asks if her passing could shape the political landscape for decades to come.

When Ruth Bader Ginsburg came out of law school, she said she faced three strikes against her: of being a woman, being Jewish and being a mother

Appointed to the Supreme Court by President Bill Clinton in 1993, Ginsburg was a liberal lioness of the high court, and hers was unstintingly a voice for the unheard. She was nothing if not a feminist avatar. She made gender equity the centre of her fight, though she was no less vigorous in her fight for the rights of African-Americans to the franchise, every bit as much as she forcefully advocated for the constitutional sanction for the rights of the LGBTQ community to marry.

The death of RBG, as she was commonly called, and on Rosh Hashanah, the start of the Jewish New Year, no less, makes the idea that “the arc of the moral universe is long, but it bends toward justice,” as Dr. King once said, feel ever so delayed, if thwarted. Yet as America decides in less than 40 days whether it chooses democracy or takes an authoritarian turn, RBG’s passing feels ever more sacred in these troubled times.

Ginsburg’s life was a testament to womanhood, justice, but most especially to the “idea” of America. The “idea” of America was one in which she laboured assiduously and relentlessly to realise in its fullest form. Notably though, in her time on the court, she was often in dissent. That made her legal opinions, however, no less resonant or binding.

RBG was long part of the court’s left-leaning bloc, and though the court for most of her tenure maintained a conservative tilt, her voice, soft-spoken in real life, was often deafening in defense of justice. For example, she kept a framed copy of the Lily Ledbetter Fair Pay Act of 2009 on the wall of her chambers. She counted the law among her proudest achievements, even though hers was a minority opinion.

The Lily Ledbetter law was a reaction to her minority opinion in a case called Ledbetter v. Goodyear Tire and Rubber Company, which was a 2007 ruling which asserted that Title VII of the Civil Rights Act of 1964, a federal law that protects employees against discrimination based on race, national origin, sex or religion, imposed strict time limits for bringing workplace discrimination suits. RBG was having none of it, and she eventually called on Congress to overturn the decision. Congress listened, and the landmark equal pay legislation for women was signed into law by President Obama in 2009.

In her dissents, RBG never shirked from her principles, and she was often at her most striking, paradoxically, when she failed to persuade the majority of her views. Even if her opinion didn’t align with the majority of the nine member bench, she was no less fervent. In 2013, in the case of Shelby County v. Holder, which effectively struck down the heart of the Voting Rights Act of 1965, she wrote that the majority had been shortsighted in saying the law was no longer needed. “It is like throwing away your umbrella in a rainstorm,” she wrote, “because you are not getting wet.”

And therein lies so much about not just American jurisprudence, of which RBG was a faithful and pathfinding purveyor, but about America itself.

With Trump set to have a third pick for the SCOTUS (Supreme Court of the United States) in less than four years, we have to ask ourselves the big questions: Is this democracy? Should matters as important as whether a woman has the right to make choices about her own body, or whether or not LGBGTQ people should have the right to marry under the full protection of the law hang in the balance by the decision of one jurist? Should not every citizen have the right to vote? Given that the court regularly takes up significant social, cultural and economic issues affecting millions of people, these decisions have more frequently in the past few decades, been left to nine justices with lifetime appointments, six of which (should Trump have his latest pick, Amy Coney Barrett, confirmed,) have been appointed by Republican presidents. Yet the Republican Party, has won the popular vote for president just once since 1988.

The framers of the American Constitution, having vanquished the House of Hanover’s oppressive yoke, created three branches of government, all co-equal, and designed to be checks on one another. This system of checks and balances aimed to thwart the unchecked  will of a powerful executive, a president, and implemented a legislature to make the laws, and a judiciary to interpret them.

Yet voters aren’t able to choose their president directly, as the electoral college prevents them from doing so. The framers feared an all too powerful monarch, no doubt, but they also didn’t trust the people—hence the electoral college. As it happens, United States Senators, who comprise the upper body of the bicameral legislature known as Congress, weren’t directly elected either, until 1913, which meant that Americans had no direct say in the matter of the senate for the first 125 years of the republic.

Trump, lest we forget, lost the popular vote to Hillary Clinton by almost three million. A meaningless metric by Constitutional standards, but a woefully undemocratic relic, which makes the notion of majority rule a farce on its face. If anything, the American system has given a disproportionate voice to a loud, but nonetheless minority of its people. By dint of an archaic system, a minority of the voting population picks a president who then can nominate a Supreme Court justice to a lifetime term, and that justice’s outsize influence thereby shapes the political landscape for decades to come.

Congenitally amoral and playing the role of a lifetime, Trump has come to represent his own minority  spectacle, though his vindictive brand of showbiz moxie doubtless comes at America’s expense. He’s Lear with a fictitious kingdom, and as irretrievably mad as George III, a flailing king, who too lost America. Trump is a decrepit testament to our broken system held hostage by minority rule. If his pervasive lying has accomplished anything, it’s the collapse of consensus. In the inverted Trump era, patriots are cowards, heroes are villains, Russian interference in the 2016 election is a “hoax,” and political adversaries are “human scum.”

Honesty in politics might sound righteous or even naive, but what else can an embattled republic do, particularly in the face of a robust minority which tethers itself to its own delusions and untruths, but bears witness to the lies. The former host of the reality show “Celebrity Apprentice,” will have (likely) appointed three Supreme Court picks, win or lose this November.

All the more reason that America mourns the death of Ruth Bader Ginsburg. RBG bore witness to unfairness, and upended it for posterity. America, itself a nation born of revolution against the British, can best honour RBG’s legacy, by reclaiming its own insurgent energy in the name of freedom, but this time against itself.

Photo credit: The Washington Post

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Adam Epstein

Though he currently works in political media, Adam Epstein has enjoyed a career as a celebrated Broadway producer. His theatrical productions have received 46 Tony nominations and garnered 12 Tony Awards, one of which Adam himself received as a producer of the hit musical Hairspray in 2003. His other Broadway credits include A View From a Bridge, The Crucible, Amadeus, The Wedding Singer and Cry-Baby. Adam has also been an adjunct faculty member of New York University (where he also earned his BA in political science), and guest lectured at Harvard and Columbia, and he has also had numerous essays published on politics and culture. He recently earned his MA in American Studies from Brown University, and has appeared on Fox News as a liberal pundit. Currently, Adam hosts his own show, THE DISPATCH, which appears weekly on his own YouTube channel.

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