Of the 102 men and women to sit on the United States Supreme Court, only a few can truly be called giants of that most venerated body.
Those who stand above the others are recognized not only for their towering intellect, but also for prophetic visions of social and political change. Among the greatest of those to sit on the nation’s highest court include John Marshall, who famously bested President Thomas Jefferson to win the awesome power of “judicial review,” Earl Warren, who rallied a unanimous court to finally end segregation and William Howard Taft, who’s administrative genius brought order and nobility to a court that was once relegated to the basement of the capitol.
Justice Ruth Bader Ginsburg is without a doubt the most recent addition to that list of giants. Her pioneering battle for women’s rights before she was ever appointed to the bench would almost certainly have been enough to earn her a prominent place in annals of legal history. Yet, her career had only just begun.
In 1992, Justice Ginsburg joined a court already dominated by conservatives and yet she used her opinions with such incredible power and persuasiveness that is seemed, at times, like she could bend the arch of history all by herself.
Her majority opinion in U.S. v. Virginia solidified gender equality as a constitutional right and her dissent in the Ledbetter v. Goodyear Tire spurred Congress to pass legislation correcting the Supreme Court’s error, a rare legislative rebuke to the court.
Yet, Justice Ginsburg was not always writing to persuade her colleagues or Congress. Many of her decisions are guideposts for future generations. Her prophetic dissent in Shelby County v Holder predicted the voter suppression we face today and she called future generations and legislators to reinstate the landmark civil rights law.
In Whole Women’s Health v. Hellerstedt and other women’s healthcare cases, Justice Ginsburg offered future generations a road map for protecting women’s choice after Roe v. Wade by grounding her analysis in equal protection.
Justice Ginsburg’s incredible influence earned her the title of “Great Dissenter,” which is only bestowed on those rare few justices whose greatest work speaks to some future age the rest of us cannot yet see clearly. She joins the likes of Justice John Marshall Harlan, whose fierce rejection of “separate but equal” in Plessy v. Ferguson would become law a century later in Brown v. Board of Education, and Justices Oliver Wendel Holmes, Jr., whose stirring defense of free speech in Abrams v. United States would lead to a renaissance for the First Amendment.
Sadly, Justice Ginsburg will probably be the last of these great giants to sit in the court’s marble palace for some time. The politicization of the court has put ideologues in control of the appointment and confirmation process and these ideologues don’t want great justices. They don’t want people on the high court capable of moving the public to accomplish great things or bending history toward a more just future. They want reliable votes.
The pool of potential justices now consists of just a handful of men and women from only a few acceptable law schools with spotless records, minimal prior writings and impeccable political credentials. Many of the intellectual titans of the legal field are now excluded from the Supreme Court including Goodwin Liu, an influential constitutional scholars who was blocked from a seat on the Ninth Circuit and professor Pam Karlan, whose influential scholarship on constitutional law and women’s choice has earned her a tireless onslaught by the right-wing media.
The search for reliable political judges hasn’t just kept intellectual titans off the bench, it is also dramatically lowering the qualifications for elevation to a lifetime appointment. President Trump’s appointments have been a circus of unqualified political selections, including the partisan blogger Brett Talley and the vehemently homophobic Lawrence VanDyke.
President Trump has also used his appointment power to protect himself, packing the D.C. Circuit (the court that oversees federal agencies) with sycophants, including Neomi Rao, who has been criticized for her embarrassingly deferential opinions in favor of Trump.
In this politicized atmosphere, Justice Ginsburg is likely to be the last giant to make it through the gauntlet of the appointments process, any yet, we could not have asked for a better person to be the last.
Justice Ginsburg knew her lifetime would not be enough and she used her dissenting opinions to speak to a future generation. Now her legacy and her example will serve as a constant reminder of what the law and the Supreme Court can be and it is up to all of us to overcome this era of toxic partisanship and bring about her vision of a more just America.
Michael Vargas is a business and securities lawyer and a part-time professor at Santa Clara University Law School. Vargas also chairs the American Bar Association’s committee on Business Law Education and serves on the executive board of the Santa Clara County Democratic Party, and on the boards of BAYMEC and the Rainbow Chamber of Commerce.