Illustration by Felix Pawlyn
The recent death of Ruth Bader Ginsburg has exposed the lack of democracy at the heart of the US political system. Justice Ginsburg, who died in service as only the second female Supreme Court judge in US history, has been mourned by thousands as a staunch defender of civil rights. Yet her reputation, influence and the impact of her death leads us to question if a system which is dominated by the political opinions of judges could ever be truly fair.
As a high-profile liberal appointed to the Supreme Court in 1993, Justice Ginsburg worked tirelessly to codify and protect the rights of women. A notable example of her work was the case of the US v Virginia, where it was ruled that women could not be denied admission to the Virginia Military Institute. Her voice of dissent from the bench became iconic, preceding softly-spoken but determined objections to the majority verdict, such as recently, in the case Little Sisters of the Poor Saints Peter and Paul Home v Pennsylvania, where she emphasised the importance of access to contraception for women. Clearly, Justice Ginsburg was a massively influential figure across the US and beyond. Tokens placed outside the Supreme Court in Washington are especially indicative of her impact – drawings depict her as a superhero, whilst one handwritten note thanks her, ‘for allowing me to achieve my dream.’
The Supreme Court, as one of the three branches of the US government, has a huge impact on legislation. Rulings by the nine judges have led to enormous changes to the structure of US society – the 1973 Roe v Wade ruling, for example, led to the legalisation of abortion. However, that the fate of civil rights should rely on one single figure appears at odds with the US ideas of democracy.
Bader Ginsburg’s wish, in her last days of life, was that she not be replaced as a Supreme Court judge before a new President was installed. If anything highlights the intrinsically political nature of appointments to the Supreme Court, it is this request. As all Supreme Court judges are appointed by the President, the majority of judges have a significant political bias. Bader Ginsburg, for example, was nominated by the predominantly liberal Bill Clinton, whereas Donald Trump’s recent nominated replacement, Amy Coney Barrett, shares his conservative views. If Coney Barrett is confirmed as a Supreme Court judge, the conservative judges will hold the balance of power, and may therefore threaten rulings such as Roe v Wade. The Supreme Court, then, becomes an extension and reflection of the ideas of the Presidents, rather than a truly independent body. Although appointees must face a Senate vote, this is widely considered to be confirmatory, with the choice of the President almost always confirmed. In contrast, the UK system of appointing Supreme Court judges, whereby individuals make applications which are then assessed by an independent commission, appears to allow for greater independence of thought.
It is right that we should focus on the extraordinary achievements and power of Ruth Bader Ginsburg, but perhaps it is also time to consider the possibility that the system by which she received such power may not be as truly democratic as we would have thought, or would expect it to be.