The final fight of Justice Ruth Bader Ginsburg’s remarkable 87-year life — to beat cancer long enough for a president who shared her commitment to equality and decency to pick her replacement — came to an end Friday just as the sun was setting on Washington, D.C., signaling the end to the Jewish calendar year 5780 and the start of Rosh Hashanah. Her longtime friend, the NPR Supreme Court journalist Nina Totenberg, wrote on Twitter that “[a] Jewish teaching says those who die just before the Jewish new year are the ones God has held back until the last moment [because] they were needed most & were the most righteous.”
The term “righteous” barely begins to describe the long journey of Ginsburg and her fight for equality — not just for women, the issue that defined her rise, but ultimately for all Americans. An icon of the so-called Silent Generation that grew up amid a Great Depression and world war, Ginsburg waged her fight across an ever-expanding battlefield. Her personal battles in the 1960s — a brilliant young lawyer shut out of many career opportunities because of her gender — shaped her role as a field general in the 1970s campaign for equal rights for women, the trajectory that finally propelled her onto the Supreme Court in 1993.
But by the time Ginsburg reached the nation’s highest court at age 60, she was a boat beating against the seemingly ceaseless current of America’s conservative backlash. Although she played a key role in many advances in civil rights for LGBTQ people, women and others, her 27 years on the Supreme Court are best remembered for her fiery and, yes, righteous dissents — against the pretzel logic that handed the 2000 presidential race to George W. Bush, the obliteration of the Voting Rights Act, and in the Lilly Ledbetter equal-pay case. Ginsburg became associated with the phrase, “I dissent,” because, as she noted, that lays the foundation for social change. “So that’s the dissenter’s hope,” she said, “that they are writing not for today, but for tomorrow.”
Tomorrow is now here.
Even though Ginsburg’s death was hardly a surprise — she’d been fighting several forms of cancer in the final years of her life — it could not have come at a worse time for an American democracy that already seemed to be ripping apart at its well-worn seams. Even beyond the no-holds-barred political brawl it triggers in Washington, the justice’s passing seemed to cement the notion of this year — I mean 2020, not 5781 — as the worst in anyone’s memory, not just because of the obvious, such as 200,000 coronavirus deaths, recession and police brutality, but because we’ve lost so much wisdom and courage that could have guided us.
It’s beyond cruel that 2020 has taken away a generation of civil rights heroes — not only Ginsburg but many veterans of the 1960s protests for Black civil rights. That includes John Lewis, 80, who spoke of civil disobedience as “good trouble” even as he was pummeled by racists at a Montgomery bus terminal and the Edmund Pettus Bridge and spent time in a hellhole Mississippi prison, and the Rev. C.T. Vivian, 95, who fought alongside Lewis at Selma and famously told a nightstick-wielding sheriff, “We’re willing to be beaten for democracy!”
These were complicated people with complex motivations, but I do think it’s fair to say that those who grew up in a time of life-and-death moral challenges — from World War II to racial apartheid here in America — were willing to take the kinds of great risks that those of us who were pampered by their victories have shied away from. In a sense, the deaths of Vivian, Lewis and now Ginsburg demand that we, the living, pick up their torches and stumble in the dark toward the courage that so often eludes us — to be willing to be beaten for democracy, to stand up when it seems that all hope is lost, and to loudly declare that “I dissent!”
The moral monstrosity of President Trump and Mitch McConnell, the Senate majority leader, and the threat these two men and their feckless allies pose to 244 years of imperfect American democracy demand a Vivian-Lewis-Ginsburg level of courage, both from opposition political leaders but also from everyday folks like you and me.
The news flashes about Ginsburg’s death were still bouncing off the stratosphere when McConnell and then Trump announced — to no one’s surprise — they will push with record speed to name a conservative replacement for the liberal Ginsburg and hold a Senate confirmation vote quite possibly before the Nov. 3 presidential election, perhaps to have more pro-Trump justices in place for a contested outcome.
In a simpler time, there’s an argument that — despite the lack of time to give this lifetime justice a proper vetting, and other problems — it’s Trump’s right to do this as the 2016 Electoral College winner. That simpler time ended in the late winter of 2016 when McConnell denied even a hearing, let alone a vote, for the highly qualified appointee by the 2012 Electoral College winner, Barack Obama. The transparently ridiculous logic that the Senate leader and his lapdogs like Sen. Lindsey Graham are using to justify stealing Supreme Court seats on both the front and (hopefully) back end of Trump’s presidency is nothing more than an authoritarian exercise of power that would have made Machiavelli himself proud.
In their essential 2018 book, How Democracy Dies, the political scientists Steven Levitsky and Daniel Ziblatt argue that dictatorships frequently arise when amoral, power-hungry leaders use methods that don’t necessarily violate the letter of constitutional law but that previous generations avoided because such measures destroy the spirit and meaning of democracy. They describe the obliteration of a nation’s unwritten governing norms as plowing through the guardrails of democracy — and now Trump, McConnell and Graham are willing to drive that bus right off the cliff, daring the rest of us to stand in the highway and stop them.
There are several escape routes out of America’s worst constitutional crisis since the Civil War — one of them easy and the others much more uncomfortable than what we’re used to. The best outcome, of course, is to hope that four Republican senators side with the 47 Democrats to choose a road of democracy and fairness over Trump’s autocratic autobahn.
That could realistically happen, especially as an election looms with a number of GOP incumbents in danger. In the two days since Ginsburg’s death — three Republicans, Sens. Lisa Murkowski of Alaska, Susan Collins of Maine and Cory Gardner of Colorado — have signaled they might wait for the presidential inauguration in January. Indeed, if McConnell were smart, he’d be playing a kind of four-dimensional chess in which the likes of Collins or Gardner save their reelection by standing up to him, which would then help the Kentuckian retain his Senate leadership and thus the votes to deny a President Biden a liberal justice in 2021.
But McConnell isn’t particularly smart; he exercises power through a psychopathic devotion to winning for winning’s sake. He’s kept enough of his 52 other senators in line to install the judicially intemperate Justice Brett Kavanaugh in 2018 and to thwart the last, best hope for democracy — Trump’s removal from office — earlier this year. I wouldn’t bet against his ability to twist arms to win what he surely sees as the fight of his lifetime.
Then what? Then the fight occurs on two levels. The first battle is top-down, and it’s whether Democrats have the courage to plan for using their hoped-for control of the levers of power in 2021 to take measures that once, understandably, have seemed extreme in past times but which now are the only ways to repair the remarkable destruction to democracy wrought by Trump and McConnell.
The most obvious of these would be expanding the size of the Supreme Court — which is constitutionally permissible and was done several times in the 19th century — by at least two and arguably four seats, to blunt the bad faith actions by Republicans since 2016. In tandem with these moves, Democrats can and should plan to vote statehood for D.C. and (if citizens there truly want it) Puerto Rico, and end the filibuster. All of these moves would expand Democratic power but are also morally long overdue.
One problem is that the man who would be 46th president, Joe Biden, would need to be dragged kicking and screaming into this brave new world. The Delawarean’s 1973-forged faith in a long-dissipated ideal of bipartisanship may have blinded him to 2021′s reality. So this is where we, the people, have to get involved.
The thousands of people who spontaneously packed the plaza outside the Supreme Court Friday night and again on Saturday for impromptu vigils show how deeply many Americans cared for Ginsburg’s ideals, and about her replacement. If McConnell appears able to forge ahead with a vote on Trump’s nominee, either in October or during a lame duck session after the election, that energy must be channeled into massive civil disobedience on an unprecedented level.
If McConnell sets a date for a confirmation vote, the American people need to respond with a general strike — to shut down the entire country, maybe for a day or two, maybe a week, maybe longer. This is a tactic that — although it’s succeeded on a municipal level, in a different century — hasn’t ever worked on a national scale. American capitalism can brutally punish displays of courage around work. But there’s a first time for everything, and if an authoritarian power grab won’t do it, then our democracy is beyond saving.
I also see a general strike as a galvanizing tool — both to drag too often cowardly Democratic leaders toward facing the realities of the Trump/McConnell threat, but also to rally strike participants behind longer-term protest measures. These could and should include massive economic boycotts of the companies that are funding GOP authoritarianism, as well as future acts of civil disobedience. We must demand that the November election winner pick Ginsburg’s replacement. And if we don’t get it? Shut it down.
As someone who voted for the first time into the teeth of the Reagan landslide in 1980, I know how a lot of folks on the battered left side of the dial will react to these ideas: You’ll only be energizing the Other Side. Fight back, they say, and you’ll be motivating Trump’s voters (Really? They weren’t motivated before this?) or inspiring the president to send out the troops and go Full Dictator — that it’s best to take a principled stand but lay low. But frankly, laying low and toothless principled-but-losing stands are what’s brought America to the brink. Now it’s time to fight.
In doing so, you’ll be honoring Ruth Bader Ginsburg’s dying wish, that the current president not name her replacement. By fighting cancer with every ounce of her blood until little more than six weeks before the election, she almost got us there with her own, enormous force of will. But she left it to us to finish the task. To get there will require good trouble, necessary trouble, to be willing to be beaten for democracy. To stand up and declare: I dissent.