Since the death of Justice Ginsberg, I have always wanted to write something, but it is difficult to write, because I want to write about the era of Justice Ginsburg, not just her life, not just her as a feminist The status of the banner of her, but the history of the United States that accompanied her throughout her life.
On September 26, 2020, Trump nominated the current Seventh Court of Appeals judge Amy Coney Barrett (Amy Coney Barrett) only 8 days after Ginsberg’s death. She was also the highest nominated The first judge of the court (twentieth century) after 70.
On October 22, 2020, the U.S. Senate Judiciary Committee voted according to a strict party line. At 12:0, 12 Republican senators voted for it and 10 Democratic senators opposed. This kind of partisan voting is now the norm in the U.S. Congress, but it is strange that the Democratic senators simply collectively boycotted voting.
From the perspective of the Democratic Party, this strong reaction is completely understandable. Compared with the death of Justice Antonin Scalia in February 2016, the Republicans rejected Obama’s nomination of Justice Merrick Garland on the grounds that they were too close to the election. The seat has been vacant for more than a year. The words are still in my ears.
When Justice Ginsberg passed away less than 2 months from the election this year, the Republicans found a “perfect reason”: In 2016, the majority of the Senate and the president belonged to different parties, but now the majority of the Senate and the president belong to the same. partisan.
The “anti-democratic” support point of the American political system
Recently, U.S. Senator Mike Lee from Utah said a controversial but very truthful statement: “The United States does not implement a democratic system, but a republic.”
In fact, when the American founding father drafted the constitution, the danger of the so-called “mob democracy” was in their minds no less than the tyranny of the British royal family.
Therefore, the U.S. Constitution has been put into many elements of elitism and “anti-democratic” system from the beginning: for example, the six-year election of federal senators, before the Seventeenth Amendment to the Constitution, the federal senators were not even universally elected. It is elected indirectly by the state assembly.
For example, federal judges serve for life, so they are generally not influenced by public opinion. Some important functions, such as the appointment of judges, cabinet members, lieutenant generals and senior officers above lieutenant generals, and the signing of foreign treaties are only confirmed by the six-year Senate and not the two-year House of Representatives.
The deep meaning behind this is that the Senate is less affected by fluctuating public opinion and can make more long-term plans for the country.
Not only in the Constitution, but also in the parliamentary system of deliberations are also full of these “anti-democratic” checks and balances. One of the most famous is the so-called “long debate” system (Filibuster).
In the 100-seat Senate, 60 votes are required to pass a bill instead of a simple majority. This can exclude some extreme bills or personnel appointments and avoid “simple” The tyranny of the majority.
It must be said that in the more than 200 years since the founding of the United States, this system has been so effective that political commentators in the United States often say: “The American political system is created by a bunch of geniuses, so that a bunch of fools can operate.”
It’s just that no matter how perfect the system is, people need to abide by it. In the past 30-40 years, the rules of the Senate have been repeatedly broken. In 2017, the Democrats boycotted Trump’s nominated Gorsuch in retaliation for the Republican boycott of Judge Garland. The Republican Senate caucus is certainly not a fuel-efficient light.
In order to ensure that Gorsuch can be confirmed, it announced the abolition of the long debate system for the nomination of Supreme Court justices. This does not require a 60-vote majority but only a 51-vote majority.
Republican senators also feel that the reason lies with them, because in 2013, when the Democrats had a majority in the Senate, it was the other party who broke the rules first and abolished the rules for nomination of federal appeals and district judges under the Supreme Court.
The 60-vote majority rule.
Such grievances can be traced back to the 1980s, back to the era of Ginsburg and Scalia.
Ginsberg often said that her most idol was Louis Brandeis, the first Jewish judge of the United States (Louis Brandeis). To a certain extent, the ethnicity and gender of the Supreme Court justices also reflect the changes in the composition of the U.S. population: the United States was founded as a Puritan nation, and the first justices were all Protestants;
in 1836, Roger Taney became The first Catholic justice (and also the fifth chief justice); Brandeis became the first Jewish justice in 1916; Thurgood Marshall became the first African-American justice in 1967 Judge;
Sandra Day O’Connor became the first female justice in 1981; Sonia Sotomayor became the first Latino justice in 2009, Each reflects the changes in American society at that time.
American constitutional scholars once said a classic sentence: The Supreme Court of the United States has never been far away from the mainstream public opinion and prejudice of the society at that time. Of course, this sentence is a bit absolute.
When the social trend is surging, the Supreme Court will sometimes show the momentum of “Thousands of people will go” trying to lead the society.
The results are also different. Sometimes It is criticized, sometimes the name goes down in history. The former, such as Chief Justice Tony before the Civil War in the Scott v. Sandford case (Scott v. Sandford) simply sentenced that African descent can never become American citizens, so that American lawyers even mentioned this case today. Light. The latter occurred in Ginsberg’s youth and middle age, that is, the liberal activism represented by the Warren Court, which fought high the banner of the civil rights movement, fundamentally changed the direction of the interpretation of the US Constitution. Whether it is the Brown v. Board of Education case against apartheid or a series of criminal case laws, the Supreme Court has strongly promoted social progress.
But until the 14th Chief Justice Earl Warren resigned in 1969 and Nixon appointed four justices in a row, when conservative forces came back, there was still a constitutional Supreme Court that did not make much of it: This is gender equality. It is this issue that made Ginsberg on the stage of the Supreme Court, not as a justice, but as a talented lawyer.
Forever Ruth Bader Ginsburg
For Ruth Bader Ginsburg (Ruth Bader Ginsburg), gender discrimination is not an unfamiliar concept, but a living experience. When she entered Harvard Law School, there were only 9 girls in the 500 first-year students.
The famous Dean Erwin Griswold reportedly invited these girls to dinner and asked them: “Why apply to Harvard? The law school has taken up a position that should belong to a boy.”
When feminism began to rise and such problems became less and less acceptable to society, Dean Griswold said that he just wanted to “care and understand” female students. In response to this hypocritical attitude, the future female dean of Harvard Law School and the future Supreme Court Justice Elena Kagan had to comment on her predecessor: “(To him) don’t take it seriously.”
When Ginsberg’s husband went to work in New York, Ginsberg married a chicken and a dog and transferred to Columbia, where she became the first student to become the editor of the Harvard Law Review and the Columbia Law Review. , And graduated from Columbia Law School in 1959 with a tie for first place.
A few months ago, Dahlia Lithwick, a well-known judicial reporter for Slate magazine, wrote an article “The Class of RBG”, narrating the life experiences of 9 ladies at Harvard Law School. There were happy and unhappy marriages, and some who passed away and were alive. , Ginsberg’s close friends also have her competitors. But all women have experienced sexism, injustice and resistance, and one story makes people sigh.
Today, if a lady can graduate first in Columbia Law School, the Federal Court of Appeals and even the Supreme Court’s assistant judge position is not a dream. But in 1959, Ginsberg found that no law firm or judge was willing to hire her. It was not until her professor threatened to stop sending outstanding graduates that she got a job as a judge’s assistant in the Federal District Court for the Southern District of New York. . Fortunately, the academic circle was still relatively open to women at the time. Ginsberg gradually embarked on the career path of a faculty/civil rights institution. In the years to come, she will become the standard bearer of feminism in the legal world.
At that time, the Supreme Court’s case law still had a strong gender orientation. In 1961, the Supreme Court unanimously supported a Florida law that stated that the obligation to serve as a jury was mandatory for men but not for women. A moderate justice, but John M. Harlan II commented that “women are still regarded as the core of family life.” How does Ginsburg persuade the Supreme Court’s nine How about a male justice?
The door is often opened by chance. Her husband Martin Ginsburg told her about a tax law case: A single man named Charles E. Moritz lived with his mother. According to the tax law at the time, only women can use the expenses of supporting the elderly to deduct tax in this case, but men cannot.
The wonderful thing about this case is that this is an example of inequality between men and women, but the victims are men. Ginsberg immediately realized that such a case would have a high probability of being sympathized by male judges, and at the same time would achieve the goal of abolishing the law on inequality between men and women. The Ginsbergs represented the case for free and won the case in the Tenth Federal Court of Appeals in Denver. At this time, Owen Griswold, the Solicit General of the U.S. Federal Government (this old man is really ubiquitous) saw that this case has the potential to subvert many federal laws, and filed a petition with the Supreme Court to request the Court of Appeal. Verdict, but the Supreme Court rejected it.
In the next ten years, Ginsberg used the original computer system of the U.S. Department of Defense to retrieve for the Department of Justice the provisions on the discrimination between men and women in the federal law, which is called “Appendix E”, along the lines of Moritz 1. The law of the case challenges these laws involving gender discrimination one by one.
The Oath by Tubin, a well-known legal writer, records Ginsberg’s record of six and five victories in the Supreme Court in the chapter “Appendix E”:
Regarding the case that Ginsberg first debated in the Supreme Court, the facts are as follows: Sharon Frontillo is an air force lieutenant. She applied for her husband’s housing and medical benefits and claimed that her husband was his dependant. According to the law, male employees can automatically claim that their wives are their dependants, but women have to prove that their husbands depend on them for support. In 1973, the Supreme Court supported Ginsberg with an 8:1 vote in Frontillo v. Richardson. As Brennan stated in his main opinion: “There is no doubt that our country has a long and unfortunate history of gender discrimination. Traditionally, this discrimination has been rationalized by virtue of a’romantic paternalism’ attitude, which has a practical effect. In other words, this paternalism does not treat them as people worthy of respect, but treats them as caged birds.” Two years later, in the Weinberger v. Wiesenfeld case (Weinberger v. Wiesenfeld), Ginsberg won in the Supreme Court. She argued that a certain clause in the Social Security Act denied benefits to widowhood fathers, but widowhood mothers could obtain it. This is unconstitutional. “It is obvious that men are more likely than women to take the primary responsibility of caring for their spouses and children. This notion is not supported by experience,” Brennan wrote in the unanimous legal opinion of the whole hospital, “but this gender-based The conclusion is not enough to justify a prejudice against women, who go out to work and make important contributions to their families with their income.”
In the Supreme Court, Ginsberg won five of the six cases, thus becoming Thurgood Marshall in the feminist movement and made an extremely outstanding contribution. Naturally, Jimmy Carter nominated her for the District of Columbia Circuit Court in 1980, and Clinton nominated her as Supreme Court justice in 1993.
Justice Ginsberg’s first day in the Supreme Court (October 1, 1993).
Before September 11, the main entrance of the U.S. Supreme Court was generally still open, and then it was opened only on important occasions, usually through the side entrance.
Ginsberg and Roe v. Wade (Roe v. Wade)
If we only pay attention to Ginsberg’s efforts to promote women’s equal rights, and only regard her as a fighter for women’s rights, then our understanding of this judge is still a bit too superficial. For me, Ginsberg’s reservations about Roe v. Wade reflect her deepest view of the constitutional structure.
It stands to reason that the Roy case in 1973 established the right of American women to have abortions. It is hard to imagine that Ginsberg would have reservations about this case. In fact, before she gave a public speech at the New York University Law School in 1992, her position in this regard was not known to many people, and her views pointed to the inherent dilemma of the Roy case.
By the beginning of 1970, American society began to generally turn to support women’s equality, and abortion rights, especially in extreme cases (such as rape, incest, or threats to pregnant women’s lives), received more and more social support, and the Supreme Court’s majority Justices have also begun to tend to protect women’s abortion rights.
But the problem is that there is no constitutional provision that can be even touched with abortion power. Whether it is the founding fathers who drafted the constitution in the 18th century or the congressmen who passed the Fourteenth Amendment to the Constitution in the 19th century, no one would have thought that the constitution and its amendments they drafted would have anything to do with abortion power after one or two hundred years. .
This “implicit” connection comes from Griswold v. Connecticut eight years ago (Griswold v. Connecticut, this Griswold and the Griswold mentioned above should not be related), which is amazing. However, in the 1960s, Connecticut actually had a law prohibiting couples from using birth control tools. Although the justices believed that this law unreasonably invaded the private space between husband and wife, no constitution prohibits such a law.
So they invented a new constitutional principle: the right to privacy.
Obviously, the constitution has never explicitly protected the privacy of citizens, but in 1965, most justices agreed with a new constitutional theory: various protections for defendants in the constitution, such as protection from unreasonable searches. , Implies the protection of citizens’ privacy.
Eight years later, this new “implicit” constitutional power extended to Roy.
Ginsberg’s criticism of Roy came from two aspects: First, she felt that the protection of women’s abortion rights mainly came from the Equal Protection Clause of the Fourteenth Amendment to the Constitution, not from the Supreme The right to privacy of the court invention. Second, she feels that although Roy’s case is extremely gratifying on the surface, the 7:2 verdict once and for all prohibits any state’s laws prohibiting abortion, but the political consequences behind it are very unpredictable. Nine unelected justices terminated the democratic process of voters in each state, and the constitutional foundation on which they were based was rather weak.
Today’s Chief Justice John G. Roberts Jr. once said in a half-joking tone: “If you don’t like what the president or congressmen do, you can vote for them; if you don’t like it My verdict, I can only say:’That’s too bad.'” The justices’ lifetime system brought them the supreme status and the result of eloquence, but everything has two sides. When the Supreme Court gathered in the hands of The ever-increasing power and prestige, and more frequent involvement in political affairs, will only lead to one consequence: the Supreme Court is becoming more and more politicized.
As Nietzsche said, “The person who is staring at the abyss, the abyss is also staring at you.” The Supreme Court has become more and more powerful. Although it can make everyone hailed “rule by law”, in the 50 years after Roy, this case has caused constant controversy. The tearing apart of American society has contributed a lot to the trend of increasingly radicalized liberals and conservatives.
Because of Ginsberg’s criticism and reservations about Roy, the Democratic senator was full of misgivings about her Supreme Court nomination, although she never wavered in defending Roy’s case law in later years. Her nomination was confirmed by the Senate with 96 votes in favor to 3 against.
Ginsburg and Scalea
Many people have heard that Ginsberg, the liberal flag, and the conservative soul of the Supreme Court, Scalia, are close friends. From a legal standpoint, the positions of the two are very different, and sometimes they are even at the tip of the needle. After the fierce confrontation in the verdict against Maimang, he remained silent for a month or two. What’s interesting is that although the two people stand at the ideological poles, they are confirmed by unanimous or close to unanimous votes in the Senate, which is almost unimaginable today.
Ginsburg and Scalea.
In fact, since the era of Scalia and Ginsberg, the U.S. Senate’s political disputes over the nomination of justices have become increasingly fierce, and the voting results have become more and more party-oriented.
Why does this happen? One reason is as mentioned above. When the Federal Supreme Court intervenes more and more deeply in general political issues, the Supreme Court itself will naturally become more and more politicized. When the justices have such enormous powers, how can the nomination of justices be? Can not be politicized. But in my opinion, another reason is equally important. Tubin, the author of “Nine Men” and “The Oath,” pointed out: When the political atmosphere becomes more and more extreme, the politicians become more and more extreme. The specific manifestation is the so-called The disappearance of the “moderate senator”. Although the United States has so-called red and blue states, there were often Republican senators in Democratic-dominated states before, and vice versa. Because of the existence of these moderate senators, candidates for judges without strong ideological labels can also be confirmed.
Since the 1960s, every generation of justices has consciously or unconsciously used the judicial power in their hands to push society in the right direction. Although many times they are indeed pushing society in a more fair and just direction, they have paid for it. The price is getting more and more away from the original meaning of the written text of the Constitution, and judges become more and more like politicians to interpret the Constitution broadly. The result of this is that the judge nomination process is becoming more and more politicized, which has also led to more and more polarized ideologies in the Senate, and senators who refuse to politicize and radicalize gradually lose a place.
In today’s poisonous and extreme political atmosphere, moderate senators are rarer than giant pandas. There are at least two giant pandas in the Washington Zoo, but Senator Susan Collins of Maine has become a new one. The only Republican Member of Parliament in England.
Yesterday’s “New York Times” had an article titled: “Collins has not changed, but Maine has changed.” How did the extremes of American politics come about? I think this is a very complicated and difficult question to answer. I wrote a little bit of my thoughts in the preface of the Chinese version of “The Summit in Court”:
Why is this so? This is a difficult question to answer. There may be several factors that have played a role more or less: for example, the disintegration of the former Soviet Union has eliminated the external pressure of the two parties to unite; for example, the polarization in American society. It’s getting worse. But I think a very important factor is the changes in the media, especially the rise of social networks such as Facebook and Witte. A sociologist in the United States described this social phenomenon in a slightly exaggerated tone: “Every town has a lunatic (ultra-conservative or ultra-liberal). In the past, they didn’t know each other’s existence. People not only found each other, but also connected with each other. As a result, the extreme voices in the two parties became louder and louder.
A simple interpretation of any complex social issue is likely to be foolish. The extreme trend in American society does not seem to stop. No one dares to expect Trump to become a uniting force, but no one thinks that Biden can become. Historical figures who turned things around like Lincoln and Roosevelt.
But at this moment, we may be able to forget the clamor of politics, remember Ginsberg’s era, and remember her great contribution to promoting gender equality.