Victorious RBG, 1933-2020
By Nicholas Diamond-Krendel, Commercial Director of Paradise Row
“All I ask of our brethren is that they take their feet off our necks.”
These were the strikingly prophetic words from 2018 of the late Supreme Court Justice, Ruth Bader Ginsburg, who has died following a trailblazing legal career spanning over half a century. Her death at this crucial moment in the US election cycle may not only impact the result of one of the most closely fought elections for years but could threaten to define the political and social landscape of America for a generation.
How could the death of a diminutive 87 year old woman, the daughter of immigrant garment workers from Brooklyn, create a political crisis in the most powerful country in the world? Unlike in the UK, where the Prime Minister is bound by law to propose judicial nominations to the Supreme Court based on the recommendations of a judicial selection committee, under the US Constitution, the President has the ultimate authority to nominate and, with the approval of the Senate, to appoint justices of the Supreme Court. Assisted by the Republican-controlled Senate, President Trump has already exercised this prerogative twice, in both cases replacing conservative justices like-for-like.
As a litigator in her earlier legal career, RBG won 5 out of the 6 cases she argued before the Supreme Court, but her time on the bench has been marked for her dissenting opinions, where she became a liberal handbrake on the conservative majority. Trump now has the opportunity not only to affect a third appointment in his four year tenure, but to replace the de facto head of the liberal wing of the court with a younger conservative candidate and thus ensure the make-up of the nine-strong panel of life-appointed justices is unequivocally conservative for years to come. Given the fundamental role the court plays in legislating on cultural, social and political questions and with hearings coming up on Obamacare, access to abortions and possibly even the result of the election itself, it is no surprise that the battle for RBG’s replacement is being described as a totemic fight for the future of America.
Historically, it was arguably the UK that was more at risk of political interference in the judicial process with no written constitution and no separation of powers, creating what one former Lord Chancellor, Lord Hailsham, famously described as an “elective dictatorship”. As recently as 2005, the head of the supposedly independent judiciary was the silk damask-clad, bewigged Lord Chancellor, who could count among his many legislative, executive, ecclesiastical, judicial and ceremonial roles, speaker of the House of Lords, head of the judiciary in England and Wales and presiding judge of the Chancery Division of the High Court of Justice. He (and in the office’s thousand year history, it was always “he”) sat in Cabinet, in the House of Lords, on the Privy Council and, by virtue of his role, could theoretically originate government policy, oversee such policy into law and then interpret and apply that law.
The Constitutional Reform Act of that year severely curtailed the powers of this anachronistic pooh-bah figure whose role had seemed more at home in the pages of a Hilary Mantel novel than in the heart of a functioning modern democracy. The changes brought about by this Act included the establishment of a UK Supreme Court, whose 12 judges no longer sit in the legislature and whose apotheosis came when they flexed their collective muscle in the 2019 landmark Brexit judgment, rendering the government’s decision to prorogue Parliament null and void.
In the febrile political atmosphere of our times, such judgment was seized upon by the right-wing press and denounced as an assault on an elected government in a sovereign Parliament by an unelected, privately educated, out of touch judicial elite. In fact the opposite was true – this was an emboldened judiciary, led by the comprehensive school educated Baroness Hale (a formidable legal mind who has drawn comparisons with RBG), unshackled by its political affinities, preventing the government of the day from shutting down parliamentary debate for its own political ends.
Such commentary will be familiar to many in the US where events such as 9/11, Charlottesville and the killing of George Floyd are increasingly interpreted through the lens of identity politics, in what has been described by many commentators as “culture wars” which play into the hands of populist leaders like Trump. Indeed in a country much more defined by its political and social divisions than the UK, and where there is even less of a political power base for the working classes, the importance of the role of the judiciary in safeguarding the most vulnerable and marginalised has become heightened.
For the first time in years, the leaders of the liberal parties on both sides of the Atlantic are comfortably ahead in the opinion polls. And yet the future of liberalism has never felt less certain. In a recent interview, RBG wryly asked her interrogator: "What's the difference between a bookkeeper in New York's garment district, which my mother was, and a Supreme Court justice?” The difference, she explained, is one generation.
The events following RBG’s death will be watched with interest on both sides of the Atlantic, where many will be hoping that the liberal world which she helped to create is not set back by a generation.