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Artillery Row

A Ruthless Supreme Court

Justice Ginsburg’s legacy will now be weaponised by the woke for November’s elections

“No, no, no!” – the shrieking “triple no” that millennials have popularized to indicate categorical rejection and angry hopelessness – has churned across social media since 18 September, when US Supreme Court Justice Ruth Bader Ginsburg died of complications from pancreatic cancer. She was 87.

Ginsburg’s death is an especially troubling loss for the American Left. In purely political terms, it opens one of only nine Supreme Court seats, lifetime positions at the apex of the federal judiciary held by political appointees whose decisions – which can include matters affecting the outcome of disputed presidential elections – are not subject to appeal. A five-to-four Republican-appointed majority was already long there, but has wavered in its ideological predictability. With Ginsburg gone, however, it is now almost certain to become a six-to-three supermajority that will be reliably right-wing, probably for decades to come.

Only as Ginsburg approached eighty was she elevated into a pantheon of leftist superheroes

In the increasingly unlikely event of a Democratic sweep of national offices in November’s elections, this enhanced reality will almost certainly obstruct major elements of the progressive agenda on constitutional grounds and could also reverse a range of earlier liberal victories, possibly even the sanctified Roe vs. Wade decision, which found a constitutional guarantee of abortion rights. If Trump should win in November, his second term agenda, and likely any further personal legal difficulties that could force him from office, will face few obstacles from the High Court. Indeed, if the next oldest Justice Stephen Breyer, also a liberal, fails to stay on the job beyond his 86th year, which he will celebrate in 2024, Trump may even have the pleasure of appointing a fourth Justice before he leaves the White House, creating a seven-to-two conservative majority.

Perhaps more importantly, Ginsburg’s death marks the departure of one of the very few figures in America’s putridly cynical public sphere to have become iconic in her own lifetime, virtually, and rather to her surprise, the premiere living saint of a new secular cult of wokeness. Prior to about 2010, when the generational turn began to usher in Obamaian identity politics at the expense of civil liberties, she was merely a liberal Justice appointed by a relatively moderate president and widely respected for her advocacy of gender equity – a concept now undisputed in American life, – and for the high intellectual acumen of her decisions over her previous thirty-year career as a senior jurist.

Only then, as she was approaching eighty, was she elevated into a pantheon of leftist superheroes, who the woke believe have the power to keep ordinary mortals safe from the vicious depredations of malignant right-wing wizardry. Her ability to maintain friendships with those who disagreed with her, an ever more elusive quality in American life that bound her most notably to her politically opposite colleague Antonin Scalia, burnished that image with a civility that the public imagination elevated from commonplace respectability to almost supernatural skill. Her lifelong interest in high culture, albeit ever less accessible to the average American, was likewise celebrated as a totem of superordinate enlightenment rather than castigated as alienating elitism.

It is unthinkable that Justice Ginsburg would have endorsed a radical upending of the constitutional order

Anxiety about the future of Ginsburg’s Supreme Court seat fed into this popular mysticism as she aged, with a rising number of court watchers and media outlets avidly tracking every turn in her health and marveling at every burst of her energy with the emotional investment of a hunter-gatherer band contemplating omens of a beloved shaman’s well-being. Long before her death, merchandisers were already capitalizing on her public image, and she was lionized in a bestselling biography, a critically acclaimed biopic, and an opera based on her relationship with Scalia. Many of the obsequies in the short time since her death affect a bizarre religiosity, with posts suggesting that she will continue watching over us from the great beyond, where she has undoubtedly been welcomed by the departed righteous. All sorts of memorials are planned. New York State will sponsor a statue in her native Brooklyn despite the state’s massive financial difficulties. At least two remarkably untalented university professors I used to know have replaced their social media profile pictures with stately portraits of Ginsburg, making her literally iconic, at least for people in their hopeless profession.

Perhaps equally strange were reactions to Ginsburg’s unofficial late life appearances in public, themselves oddities among an ageing and ossified Washington mandarinate who have become almost ludicrously preoccupied by privacy and security concerns and regard their own absence from public space as a kind of status symbol. I slightly knew Ginsburg, and when in Washington during the artistic season, I often encountered her at performances we both attended – opening nights at the capital’s opera company as well as various concerts and recitals. She was usually among the last to come to her seat, always attentively bracketed by dark-suited Secret Service officers with their distinctive earphones, and sometimes relying on a walker. Nevertheless, as soon as she was recognized, a pall would descend over the auditorium before about two-thirds or more of the audience rose like a bob of trained seals to give her a standing ovation, simply, it seemed, for having remained alive and at her post.

To her immense credit and my admiration, I never once saw her acknowledge the applause, which after a while appeared to embarrass her or at the very least intrude upon her evening. When seated nearby or finding ourselves in various patron lounges at the interval, it was possible to exchange brief pleasantries before the show started or crowds of besotted admirers gathered. In these moments Ginsburg was certainly unique; I have never witnessed any other public figure loudly applauded by a spontaneous public assembled for another purpose. The last time I saw her – just before the pandemic at the Washington Opera’s premiere of a new production of Mozart’s Don Giovanni, – she was with her intellectually impressive and equally diminutive colleague Elena Kagan, whom no one seemed to notice at all.

Ginsburg’s legacy can now be weaponised for any woke purpose in what could easily be a bloody autumn

The fate of Ginsburg’s Supreme Court seat is already threatening partisan combat that could easily dwarf the hysterical national tragicomedy that ended in Brett Kavanaugh’s contentious but successful confirmation in 2018. Ginsburg herself may have dramatized the issue on her death bed, reportedly saying that her dying wish was for her seat to remain empty “until there is a new president,” an event that might not happen until 2025. If Trump names a replacement, Democrats have already made various threats to “pack” the court at some future time with more leftist Justices than the traditional nine, and, while they are at it, to abolish the Electoral College, the Senatorial filibuster, and other foundational features of American constitutional law that could check and balance the dominant legislature they expect to have.

Hillary Clinton has called on her former Democratic colleagues in the Senate to do all they can to block a replacement. Contributions to Joe Biden’s faltering presidential campaign reportedly surged even in just the hour after Ginsburg’s death was announced, reaching a claimed rate of USD 100,000 per minute. Media partisans and other commentators have threatened to start riots if a new appointment goes through, and, when it is pointed out that there already are riots going on, threatened to start “bigger riots” to resist what they appear to regard as a form of sacrilege.

Despite their rising outrage, the physical consequences of which only improve the incumbent president’s fortunes for reelection, Trump has pledged to replace Ginsburg “without delay.” Senate Majority Leader Mitch McConnell declared even earlier, with almost no resistance in his party, that he will hold a confirmation vote for any nominee advanced by the president. Trump supporters are already lacing their polite condolences with excited chatter about which individual in the president’s announced pool of possible nominees would make the most reactionary Justice. His electoral base, which takes an unusually strong interest in judicial appointments and holds them out as a 2016 campaign promise he has reliably kept, will almost certainly emerge from the confirmation battle even more energized than it now is.

It is unthinkable that Justice Ginsburg, who among many other notable pronouncements fully endorsed due process as a fundamental civil right, would have either endorsed a radical upending of the constitutional order or sanctioned mass violence to sate worshipful fans seeking to protect her legacy. But now that she has gone into the great beyond, her legacy can be weaponised for any woke purpose in what could easily be a bloody autumn.

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