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After Ginsburg Dems Must Choose Radicalism or Failure

Associate Justice Ruth Bader Ginsburg is the last justice to leave a private ceremony in the Great Hall of the Supreme Court in Washington, Monday, July 22, 2019, where the late Supreme Court Justice John Paul Stevens lies in repose. (AP Photo/Andrew Harnik, pool)

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Associate Justice Ruth Bader Ginsburg is the last justice to leave a private ceremony in the Great Hall of the Supreme Court in Washington, Monday, July 22, 2019, where the late Supreme Court Justice John Paul Stevens lies in repose. (AP Photo/Andrew Harnik, pool)

The death of Ruth Bader Ginsburg is the rare kind of event that must be radicalizing.

There’s no shortage of injustice, real or hypothetical, that has the potential to radicalize people. Ginsburg’s death, which comes just long enough before the election for Republicans to replace her with a reactionary right-wing jurist, requires a radical response if the causes of democracy, equality, and freedom are to have a fighting chance.

Before she died, when it seemed as though she might survive long enough to be replaced by a like-minded president, the outlook already begged for radicalism. Had she lived through the inauguration of Joe Biden, Democrats would still have faced the daunting task of rescuing the country from pandemic disease, economic collapse, and ecological catastrophe, all over the objections of Republicans in Congress and a Republican-allied Supreme Court majority that was poised not just to hamstring today’s Democrats, but roll back decades of progressive achievements.

Still, with a 5-4 split, occasional conservative defections might have limited the damage. With a 6-3 split, the margin for error disappears altogether. Upon the confirmation of that sixth conservative, Democrats will have to do literally everything right—first by winning the presidency and control of the Senate, then by democratizing the elected branches and reforming the courts—or everything they’ve strived for will be placed out of reach.

Ginsburg’s death got me thinking about the duty political elites have to conduct themselves responsibly. Their failures and shortcomings seldom touch them directly, but can cause incalculable harm to the rest of us. Everyone who believes in the principle of self rule and seeks political power should be under no illusion about the forces of illiberalism in America, and should make all of their decisions with an eye toward protecting the public from those forces. This, we are now reminded in the most painful way, was the defect of Ginsburg’s decision not to retire when President Obama and a Democratic Senate could have replaced her with a younger but comparably formidable legal mind. Justice Stephen Breyer, age 82, made the same gamble with the fate of the country, but will likely have a chance to redeem the error under the next Democratic administration.

These mistakes can’t be unmade, but they can serve as a reminder to Ginsburg’s living champions that they will be making a far graver error if they now refuse to be radicalized. Democrats have one shot to arrest the country’s slide into another era of Lochner-style jurisprudence, and if they miss, the world may never recover. For instance: the United States has perhaps a few years left to institute sustainable environmental reforms before global-warming pollution reaches intolerable levels. The original Lochner era lasted for decades. 

Working backwards from what Democrats must accomplish—secure the gains of the past, fix the economy, preserve a habitable planet—helps clarify their obligation to first add seats to the Supreme Court. They will need to pass historic legislation, almost certainly along partisan lines, but they will also need to protect it from judges who are both unprincipled and ideologically contemptuous of popular sovereignty; who will void progressive legislation, then disenfranchise Democratic voters to insulate themselves from consequences. But Democrats won’t be able to pass any significant legislation if they don’t abolish the filibuster. And the laws they do pass will fall in short order if they don’t use majority rule to remedy the theft of the courts before those judges have a chance to destroy the liberal state.

At 5-4, many Democrats were willing to rationalize timidity. Maybe the worst wouldn’t come to pass, maybe Chief Justice John Roberts would temper the radical designs of his peers. At 6-3, Roberts would no longer be the Court’s swing vote; that distinction would fall to Justice Neil Gorsuch, who believes (or claims to believe) that much of the regulatory work the executive branch does at the behest of Congress is unconstitutional. Decades of progress are on the line, the only way to protect it all is to reclaim what was stolen, and the only way to do that is by eliminating the filibuster. From there the obligation to enfranchise the citizens of Washington, DC, Puerto Rico, and other territories, and secure the voting rights of all Americans, follows not just to fulfill unmet promises of democracy but to insulate further progress from the forces of reaction. Minority rule can’t just be paused for two years; it has to end.

Ginsburg once remarked that she learned from a colleague to “waste no time on anger, regret, or resentment, just get the job done.” Her passing clarifies the job Democrats have to get done.

They should start by accepting that there will never be a single GOP vote to fix any of the structures that make democracy ripe for the killing. No one’s coming to the rescue to make tough votes go down easier. Anyone laboring under that delusion should get over it quickly. There will not be bipartisan cover to save democracy because the Republican Party doesn’t believe in it. There is no more sense in spending months exhorting Republicans to help create political equality in America than there would have been in replacing the civil rights movement with a sandwich board that said “pretty please.” The responsibility to create a just future rests, for better or worse, entirely on Democratic shoulders. They can choose to do what must be done right off the bat without any Republican support—or to fold, and admit failure.

Between now and inauguration day, Democrats should dedicate themselves not just to winning the election, but to building the resolve that will be required of them

If senators from places like California and Delaware think voters shouldn’t be disenfranchised, or that it shouldn’t take landslides and supermajorities for the winning party to control the Senate and govern, but won’t do anything to fix those problems without GOP buy in, they should resign. Other leaders have been radicalized as they must be, and they are prepared to “get the job done”—to finish the work Ruth Bader Ginsburg wished to see completed in her lifetime.