High court loses leading advocate for equality, immigrants
The void left by Ginsburg could change the court’s trajectory on issues from gender equality to immigration.
Deborah Cohen of Richmond, Va. holds a rainbow flag as people gather at the Supreme Court to honor the late Justice Ruth Bader Ginsburg in Washington, Saturday, Sept. 19, 2020. | AP Photo/J. Scott Applewhite
09/19/2020 04:24 PM EDT
Ruth Bader Ginsburg’s death could swing the legal trajectory of issues she championed on the Supreme Court, including LGBTQ, gender and immigrants’ rights.
The loss of the 87-year-old justice’s strong liberal voice could leave the high court deadlocked on contentious issues during the election year and push it further to the right for decades to come.
Ginsburg joined the court’s majority in a handful of high-stakes rulings during the Trump administration, such as its surprising, 5-4 decision rejecting President Donald Trump’s decision to end the Obama-era program protecting so-called Dreamers — those brought to this country as children — as well as a 2019 ruling that overturned the administration’s attempt to add a citizenship question to the 2020 census.
But both of those issues are still in play, as neither ruling foreclosed the administration from taking a different path to implementing those policies, leaving the door open for a more conservative court to eventually rule in Trump’s favor.
Trump has since instructed the Commerce Department to exclude undocumented immigrants from the census count for the purpose of congressional reapportionment. That effort was blocked by a federal court earlier this month, but the administration appealed the case to the Supreme Court just last week.
Prior to the Trump administration, Ginsburg was a key vote in support of enshrining protections for the LGBTQ community.
She joined the majority opinion in Windsor v. United States, the 2013 case that struck down a law preventing same-sex couples from receiving the same federal benefits as heterosexual couples.
In the Supreme Court’s landmark 2015 ruling legalizing gay marriage, Ginsburg also sided with the 5-4 majority.
All of these cases were split along ideological lines, with a conservative member joining the court’s liberals — suggesting that an even greater conservative edge on the Supreme Court will change the outcome on similar issues in the future.
Ginsburg’s death also leaves a void from her outsized voice on gender equality. She served as director of the Women’s Rights Project of the American Civil Liberties Union earlier in her career, arguing several cases before the Supreme Court.
And after joining the high court in 1993 as only the second female justice, she would go on to pen several landmark opinions on gender discrimination, including in the 1996 case United States v. Virginia, which invalidated the Virginia Military Institute’s male-only admission policy.
When the Supreme Court ruled in 2007 that Lilly Ledbetter, an employee at GoodYear Tire, could not sue over sex discrimination because she waited too long to file the complaint, Ginsburg read her searing dissent of the decision from the bench.
“Title VII was meant to govern real-world employment practices, and that world is what the court today ignores,” Ginsburg said in her rebuke, referring to the equal employment clause of the 1964 Civil Rights Act.
The case inspired Congress to pass the Lilly Ledbetter Fair Pay Act, which reset the 180-day statute of limitations with each paycheck. Two years after the high court’s decision, President Barack Obama signed the bill into law in 2009.
Ginsburg’s absence could also slow efforts by Democrats and several states to finally ratify the Equal Rights Amendment, which would guarantee equal treatment under the law regardless of sex.
The Equal Rights Amendment was passed by Congress in 1972, but by the 1982 ratification deadline, only 35 of the necessary 38 state legislatures had approved it. While Virginia, following Nevada and Illinois, has since approved the amendment, five states have also rescinded their ratification, creating murky legal questions that will likely land before the Supreme Court.
It’s unclear how Ginsburg — who was historically a strong supporter of women’s rights — would have voted on extending the 1982 deadline, but she did say she would have liked for supporters to “start over” with a new ERA, rather than trying to revive the original one.
“I would like to see a new beginning,” Ginsburg said. “There is too much controversy about latecomers.”
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