[Photo credit: Danita Delimont Photography/Newscom]
By Matthew John
Republished from dialogue & discourse.
On September 18, Supreme Court Justice Ruth Bader Ginsburg died from complications related to pancreatic cancer. She was 87 years old and was surrounded by loved ones at the time of her death. Thousands attended a vigil outside the Supreme Court building and innumerable additional events took place in her honor throughout the country. Ginsburg was the second woman to serve on the Supreme Court and became known as a feminist icon and a pioneering advocate for women’s rights due to her dissenting opinions in cases like Gonzales v. Carhart, Ledbetter v. Goodyear Tire & Rubber Co., and Burwell v. Hobby Lobby Stores. An email I received from Black Lives Matter Global Network the following day concisely encapsulated public sentiment:
“Last night, we lost a champion in the fight for justice and gender equality: U.S. Supreme Court Justice Ruth Bader Ginsburg. Justice Ginsburg was a giant in the fight for equality and civil rights — she embodied everything that our movement stands for. We stand on the accomplishments of her life’s work that have continued to amplify the need to protect and expand equal rights for women and underserved communities. And we celebrate women having a voice in the workforce while also having the ability to make decisions for their own health and wellbeing because of the work of Justice Ginsburg.”
In the wake of this national tragedy, Ginsburg’s life and legacy took center stage in political discourse and rampant speculation ensued regarding how this event might influence the nation’s future. Democratic campaign contributions skyrocketed and Republican leaders began calculating and scheming to fill the vacant court seat. House Speaker Nancy Pelosi announced that Ginsburg would be the first woman to lie in repose at the Supreme Court and New York Governor Andrew Cuomo announced that the state would erect a statue in her honor. Politicians and pundits memorialized the fallen titan, who had become a cultural icon known fondly by the moniker “Notorious R.B.G”, while others found inspiration in idiosyncratic elements of Ginsburg’s persona.
As is the case with other beloved American heroes, the national discourse surrounding the death of Ginsburg included every detail imaginable other than her cumulative record in public service. Unfortunately, the Supreme Court tenure of Ruth Bader Ginsburg encompassed more than just pussyhats and rainbows. As with any prominent figure, we must account for the “problematic” aspects of Ginsburg’s legacy as well. These include her disparaging statement regarding Colin Kaepernick’s racial justice efforts, her positive statement regarding former colleague Brett Kavanaugh (who was credibly accused of rape), her designation of flagrant reactionary Antonin Scalia as her “best buddy”, and her final case on SCOTUS, in which she agreed with the decision to fast-track President Trump’s deportations. In terms of Ruth Bader Ginsburg’s comprehensive legacy on the Supreme Court, the well-known, progressive dissenting opinions are dwarfed by her extensive résumé of anti-indigenous, anti-worker, pro-cop, and “tough on crime” decisions. (Unless otherwise noted, the following bullet points are quoted or nearly quoted from this Current Affairs article, which I’d recommend reading for more details and context.) For instance:
In Heien v. North Carolina, the court held that the police may justifiably pull over cars if they believe they are violating the law even if the police are misunderstanding the law, so long as the mistake was reasonable.
In Taylor v. Barkes, the Court held that the family of a suicidal man who was jailed and then killed himself could not sue the jail for failing to implement anti-suicide measures.
In Plumhoff v. Rickard, the court held that the family of two men could not sue the police after they had shot and killed them for fleeing a police stop.
In Samson v. California, the Court decided the issue of whether police could conduct warrantless searches of parolees merely because they were on parole. Instead of joining the liberal dissenters, Ginsburg signed onto Clarence Thomas’s majority opinion in favor of the police.
In Kansas v. Carr, the Kansas Supreme Court had overturned a pair of death sentences, on the grounds that the defendants’ Eighth Amendment rights had been violated in the instructions given to the jury. SCOTUS informed Kansas that it had made a mistake; nobody’s Eighth Amendment rights had been violated, thus the defendants ought to have continued unimpeded along the path toward execution. The Court’s decision was 8–1, the lone dissenter being Sonia Sotomayor. Ginsburg put her name on Justice Scalia’s majority opinion instead.
In Sherrill v. Oneida Indian Nation, the court ruled against the Oneida Tribe over a dispute regarding its territorial claim. Ginsburg’s majority opinion stated, “We hold that the tribe cannot unilaterally revive its ancient sovereignty, in whole or in part, over the parcels at issue.” Ginsburg referenced the Eurocentric, racist, and colonialist “Doctrine of Discovery” in her comments. (Source)
In Salazar v. Ramah Navajo Chapter, Ginsburg dissented, disagreeing with the ruling that that the United States government, when it enters into a contract with a Native American tribe for services, must pay contracts in full, even if Congress has not appropriated enough money to pay all tribal contractors. (Source)
In Kiowa Tribe v. Manufacturing Technologies, Ginsburg once again dissented, opposing the ruling, which stated that the Kiowa Tribe was entitled to sovereign immunity from contract lawsuits, whether made on or off reservation, or involving governmental or commercial activities. (Source)
In Inyo County v. Paiute-Shoshone Indians, the Bishop Paiute Tribe of California asserted that their tribe’s status as a sovereign nation made them immune to state processes under federal law and asserted that the state authorized the seizure of tribal records. Ginsburg joined the majority in dismissing the tribe’s complaint. (Source)
In Alaska v. Native Village of Venetie Tribal Government, the court unanimously ruled against a tribal council that wanted to collect a tax from non-tribal members doing business on tribal lands. The Court claimed the land (which was owned by the tribe) was not subject to the tribal tax because it was not part of a Native American reservation. (Source)
In C & L Enterprises, Inc. v. Citizen Band, Potawatomi Indian Tribe of Oklahoma, the court held that the tribe waived its sovereign immunity when it agreed to a contract containing an arbitration agreement. (Source)
In Navajo Nation v. United States Forest Service, the court ruled against the Navajo Nation, who have consistently protested the encroachment of a ski resort on Navajo territory (San Francisco Peaks). In short, the decision upheld the Ninth Circuit Court’s ruling that the use of recycled sewage water was not a “substantial burden” on the religious freedom of American Indians. (Source)
In Integrity Staffing Solutions, Inc. v. Busk, the court ruled that workers didn’t deserve paid compensation for being required to watch theft security screenings. (Source)
In Brogan v. United States, the court ruled that the Fifth Amendment does not protect the right of those being questioned by law enforcement officials to deny wrongdoing falsely. (Source)
In Chadrin Lee Mullenix v. Beatrice Luna, Ginsburg sided with the majority opinion which granted immunity to a police officer who unnecessarily shot and killed a suspect. (Source)
In Bush v. Gore, the contentious decision that decided the 2000 presidential election, Ginsburg’s draft of her dissent had a footnote alluding to the possible suppression of Black voters in Florida. Justice Scalia purportedly responded to this draft by flying into a rage, telling Ginsburg that she was using “Al Sharpton tactics.” Ginsburg removed the footnote before it saw the light of day.
In Davis v. Ayala, Justice Anthony Kennedy wrote a lengthy concurrence condemning solitary confinement. Most notably, Justice Kennedy made no reference to any particularly vulnerable group, instead suggesting that long-term solitary confinement may be unconstitutional for all. Justice Ginsburg did not join the concurrence.
Scott v. Harris involved a motorist who was paralyzed after a police officer ran his car off the road during a high-speed chase. Ginsburg concurred with the majority that deadly force was justified. (Source)
In Rumsfeld v. Forum for Academic & Institutional Rights, Inc., Ginsburg approved allowing the government to threaten the withdrawal of funding in order to punish universities that ban discriminatory job recruitment by the military.
The list goes on. Of course, no one is perfect. Everyone has flaws. However, when evaluating any prominent or powerful individual, it seems the proper outlook is to weigh the harm inflicted by their actions against the positive results of their actions. For instance, Abraham Lincoln’s passage of the Emancipation Proclamation helped end the most prominent form of slavery in the U.S. (but not all forms), and because of this, many Americans are willing to forgive his racist views and perceive his overall contributions positively. By this measure, it is dubious at best to suggest that Ginsburg’s full record contains more — simply put — good than bad. That is to say, it seems that her career as a whole caused more harm to vulnerable people than any positive impact her rare instances of dissent may have had.
The simple aforementioned formulation — cumulative good vs. cumulative harm — may be a bit naïve when compared to the manner in which most citizens evaluate public figures and the process by which these figures are often lionized despite their substantial misdeeds. The cult of personality surrounding Ruth Bader Ginsburg is certainly a notable phenomenon that can be explored in sociological and cultural contexts, but the whitewashing of her record is a crucial aspect of this process that is worth analyzing.
This unfettered, liberal adulation of Ginsburg can stem from a conscious attempt to conceal the unsavory aspects of her record, from plain ignorance, or from a third, more insidious place: acquiescence to the brutality that is “baked into” the American political system and our nation’s history more broadly. This is a system founded by white supremacists who enslaved and tortured Africans on stolen, blood-soaked land — a system by and for economic elites. In this sense, Ginsburg’s consistently anti-indigenous voting record might be perceived by liberals as a “necessary evil” — a simple extension of the settler-colonial mentality and the vestiges of “Manifest Destiny.” The same critique applies to her conservative rulings that harmed immigrants, people of color, and the working class in general.
Beyond Neoliberal Feminism
It is usually the case that about half of any large population is comprised of women. When speaking of feminism, we often forget that universal issues are also women’s issues; healthcare, housing, and wages, for instance. Under neoliberalism, exploitation, austerity, vicious imperialism, and state violence are systemic aspects of daily reality. We must remember that this includes the experiences of women, and often to a greater degree. Why don’t we take into account the indigenous women, or the immigrant women, or the women experiencing poverty when discussing Ginsburg’s record or government policy more broadly?
Let’s break this down even further. Recognizing these demographics, is it “feminist” to continue displacing and attacking the sovereignty of native women? Is it “feminist” to rule in favor of employers rather than female employees? Is it “feminist” to deport women back to countries we destroyed with sanctions and military coups? Just as the lofty, foundational American ideals were designed by and for white, property-owning men, this elite notion of feminism only applies to certain groups of women under certain circumstances. This superficial feminism is a far cry from a Marxist feminism that seeks a more holistic approach to liberation and empowerment. As Martha E. Gimenez wrote:
“As long as women’s oppression and other oppressions occupy the center of feminist theory and politics, while class remains at the margins, feminism will unwittingly contribute to keeping class outside the collective consciousness and the boundaries of acceptable political discourse. To become a unifying, rather than a divisive, political and ideological force, twenty-first-century Marxist feminism needs to become an overtly working-class women’s feminism, in solidarity with the working class as a whole, supporting the struggles of all workers, women and men, and gender-variant people of all races, national origins, citizenship statuses, and so on, thus spearheading the process toward working-class organization and the badly needed return to class in U.S. politics.”
American Institutions and Systemic Violence
Deifying political figures like Ginsburg not only whitewashes their crimes against marginalized people — it also further legitimizes a fundamentally elitist, unjust, and undemocratic political system. As political scientist Rob Hunter wrote, “The Supreme Court is a bulwark of reaction. Its brief is to maintain the institutional boundaries drawn by the Constitution, a document conceived out of fear of majoritarian democracy and written by members of a ruling class acting in brazen self-interest.”
A sober analysis of Ginsburg’s rulings clarifies that America has never strayed from its roots as a genocidal, hyper-capitalist, white supremacist, patriarchal settler-colonial project with economic elites running the government and blue-clad henchmen violently enforcing this agenda through state-sanctioned terror. Some wonder if it has always been this way. Has it gotten better? Worse? Has slavery just been repackaged? What’s clear is that the advent of neoliberalism has heightened the perilous and precarious conditions of this crumbling society while technology has allowed strangers to share the visceral horrors contained therein.
It is time to stop normalizing this barbarism. Performative identity politics and the ubiquitous brand of white, neoliberal feminism are façades used to conceal the profound violence of a dying empire and to paint the “moderate” wing of capital as somehow more humane and enlightened. A society founded on land theft, on commodifying basic human needs, on exploiting, enslaving, and brutalizing the vulnerable, is a society that should not be celebrated. And it is a society where the realization of true feminism has — thus far — proven to be out of reach. As Thomas Sankara once said, “The status of women will improve only with the elimination of the system that exploits them.”
