RBG, Gender Justice and our courts
As this administration pushes the nomination of her replacement and the notion of stacking the courts becomes a debate topic, our Gender Justice Caucus reflected on the legacy of Supreme Court Justice Ruth Bader Ginsburg who played a crucial role in the evolution of rights for women, and ultimately for other marginalized groups, throughout her long lifetime. She grew up religiously Orthodox in a time when girls could not become a bat-mitzvah and when the Orthodox congregation was split by gender. She entered law not only at a time when women were not welcome in the profession, but when Jews were not welcome in Wall Street Firms. She personally felt the effects of misogyny and anti-semitism, and deeply related to others who experienced discrimination and injustice.
She was unquestionably a trailblazer throughout her career: in law school, in academia, at the ACLU (where she founded the Women’s Rights project), and ultimately as the first Jewish woman justice on the Supreme Court. Even in death, she will become the first woman and first Jewish person to have the honor of lying In State in the US Capitol (previously, Rosa Parks was the first woman to lie In Honor in the US Capitol when she died). Justice Ginsburg revolutionized the Supreme Court’s understanding of the Fourteenth Amendment to include sex, and therefore gender. Many rights and experiences that we take for granted today — such as women working in nearly every industry and most working outside the home, and access to reproductive healthcare including birthcontrol and abortion — we have because of Justice Ginsburg’s work both on the court and before she became a justice.
Despite her many and well-reported achievements, Justice Ginsburg’s work was not beyond critique. She employed an incrementalist approach to change that failed to advocate for all marginalized people, particularly Black and Indigenous women impacted by intersecting inequalities of gender, race, and class. For example, RBG shied away from naming and denouncing racist policing practices in the cases Utah v. Strieff and Mullenix v. Luna, concerning unlawful searches and seizures and police brutality. She demeaned Colin Kapernick’s courageous civil disobedience and protest of police brutality, only retracting her comments in response to broad criticism. In an opinion earlier this year, Justice Ginsburg joined with the conservative majority to approve a 600 mile gas pipeline under indigenous Appalachian territory, exacerbating risks for indigenous women who already face poor health conditions and extreme rates of violence and disappearances. Last, many commentators have noted that Justice Ginsburg endorsed neoliberal practices for much of her career and regularly joined with conservative judges and Justices to advanced big business concerns, such as her support for the erosion of monopolization enforcement (Trinko) and prioritization of multinational corporations over small businesses (Daimler v. Bauman)
Nor can RBG’s achievements be attributed to her, alone. Her work on the Supreme Court occurred in the context of nationwide movements for gender justice and civil rights, often led by radical Black women of color. Every landmark case in which RBG played a role involved decades of organizing by queer, Black, POC, and feminist activists who fought to shift the dominant narrative. However, the revolutionary and intersectional visions of these activists were not always centered in RBG’s opinions and dissents. Additionally, the “cult of personality” Justice Ginsburg inspired misses a larger picture about the state of our democractic institutions. The despair that many feel in this moment — and the possibility that so many of the rights she fought for may be wiped away in her absence — is a testament to the reality that no person is capable of single-handedly protecting our democracy and ensuring our rights.
In the immediate aftermath of Justice Ginsburg’s death, there is much at stake. Many critical policies protecting the rights of women, trans and queer folx, immigrants, low-income people, and more at risk of being rolled back or halted. Roe v. Wade and access to abortion are imminently under threat, as is our slow progress toward accessible healthcare under the Affordable Care Act (also affecting access to birth control). Under a deeply conservative court, LGBTQ rights are at high risk of being rolled back. Xenophobic policies gutting asylum law and imposing severe, classist restrictions on immigration are likely to flourish. Untold other issues including voting rights, climate change and labor organizing may also now face very tough odds in the Supreme Court.
RBG’s passing gave us an opportunity to reflect on the new frontier of gender justice. Her work was imaginative and created fundamental shifts in the way we understand gender, but this radical project is far from complete. We need gender justice that is rooted in our vision of liberation for working people of all races. An end to violence against womxn will require a massive cultural shift, including comprehensive sex education, the replacement of police and prisons with transformative justice, housing as a human right, and jobs with living wages. We need robust protections against discrimination for trans and queer folx at every level. We need a healthcare system that will provide access to birth control, abortion and reproductive care, trans and nonbinary care, and mental health care for all who want it. Sex work must be decriminalized. There must be a pathway to citizenship for the millions of undocumented women who keep our communities afloat as domestic workers, agriculturallaborers, nurses, and more. We need public childcare and eldercare to lift the financial and emotional burden of caregiving overwhelmingly shouldered by women.
With or without Justice Ginsburg, we are nowhere close to having a Supreme Court that reflects our values. We must have higher standards for judges that carry long or lifetime appointments. Our courts have never and will never be apolitical, and for decades, the Right has had the vision and power to craft a judiciary that advances their values. It's time to reclaim the courts. While we are not in a position to directly influence the current nomination battle, getting there is a long process that starts at the local level. We have our work cut out for us: next year, Philadelphia will hold judicial elections in which the people will elect judges to ten-year terms. We need a bottom-up approach to judicial accountability, and we need to elect judges whose vision of justice is in line with our own.
written by Reclaim Philadelphia’s Gender Justice Caucus with contributions by our Jewish Caucus and members of the Judge Accountability Table
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