Ginsburg’s legacy and the Supreme Court

Many people are mourning the death of U.S. Supreme Court Justice Ruth Bader Ginsburg, some with expressions of fear that the loss of her vote on SCOTUS will mean the loss of women’s right of access to abortion.

Ginsburg was a historic figure in the fight for equal rights for women in education, employment and health care. Her many contributions include her successful argument as a lawyer before the Supreme Court in the 1971 Reed vs. Reed case. That resulted in a groundbreaking SCOTUS decision that “equal protection” in the 14th Amendment to the U.S. Constitution also includes equal status for women under the law.

But to accurately assess the political impact of Ginsburg’s loss, it’s necessary to reflect on the function of the Supreme Court in a capitalist “democracy.” Within the three branches of the  U.S. government —  legislative, administrative and judicial – SCOTUS was established as the least democratic of the three, with its lifetime appointees chosen by a Senate composed of multi-millionaires.

Decisions are made by SCOTUS in order to maintain the stability of the U.S. capitalist system over time, during the ups and downs of presidents and stock markets, as demonstrated by its decisions in favor of enslavers in the 19th century, and big capitalists and bankers in the 20th and 21st.

But mass movements of the people can sometimes hold the power structure to account using legal struggles through SCOTUS, and the people have managed to wring some favorable decisions out of the black-robed justices.

The 1973 Roe v. Wade decision granting women the right to abortion — made by an all-male, majority Republican-appointed SCOTUS — as well as the appointment of women justices to the centuries-long all-male court — reflect the inexorable pressure of the 1970s mass movement for women’s liberation, with which Ginsburg was aligned.

Inconsistent votes reveal contradictions

However, Ginsburg’s votes while on the Court reflect the contradictions of her participation in this conservative state body.  

This spring she agreed in progressive decisions for LGBTQ2S+ employment rights, immigrant rights for Deferred Action for Childhood Arrivals recipients and the striking down of an anti-abortion Louisiana law. Yet, during the same period, Ginsburg voted against immigrant rights by approving a speedup in Trump’s deportation of asylum seekers, and against Indigenous rights by approving the Atlantic Coast Pipeline across stretches of West Virginia, Virginia and North Carolina.

And while Ginsburg delivered a stinging dissent against the 2013 gutting of the Voting Rights Act – which directly affected Black voters – she also insultingly called the kneeling protest by Black Lives activist and athlete Colin Kaepernick against racist police killings “disrespectful” and “dumb.”

Meanwhile, public protest and direct disruption actions successfully canceled the Atlantic Coast Pipeline in early 2020. And Kaepernick was vindicated this spring as the largest mass demonstrations in U.S. history arose to protest the police murder of George Floyd, and led to Black Lives Matter solidarity strikes by professional athletes in all major sports.

When Palestinian women implored Ginsburg not to accept the Genesis Prize lifetime award in apartheid Israel, she ignored their pleas and traveled to Tel Aviv for the ceremony in 2018.  

To make any one person the determining factor in a struggle for justice is to seriously misunderstand the process by which action toward liberation is accomplished.

Laws put in place by the U.S. owning class are changed only as the result of powerful mass movements — and that includes at the level of the Supreme Court, no matter who has been appointed to the court and by which president.

A bitter battle is now being launched over filling the SCOTUS vacancy left by Ginsburg’s death. But no matter the outcome of that battle, the determining fact in the defense of rights already won will be staunch solidarity between mass movements for justice and liberation.

Fierce action by mass movements — by people fighting for each other’s lives as if for their own — is the only way to defend and advance the rights of the people to universal health care, to guaranteed housing, to jobs and a living income, to reproductive justice and freedom, to an end to prison slavery, to Indigenous sovereignty, to life without the death menace of white supremacy — and more.

We the people — the workers and oppressed people — are the hope in the struggle. We always have been, we always will be.