Analysis US Election 2020
By Emily Olson in Washington DC
If you're trying to explain just what Ruth Bader Ginsburg meant to America, it's hard not to sound hyperbolic.
She will go down as one of the most influential thinkers in US jurisprudence.
No single woman in the US has done more for gender equality.
For progressive Americans, her death feels frightening — like a personal threat. They say her absence on the court could strip rights from millions of Americans and settle any contested election result in Donald Trump's favour.
For conservatives, it's an opportunity to reshape the nation for decades to come.
Ginsburg fought like hell to try to make it not so
Before she was a judge, Ginsburg was a prolific litigator.
She spent a decade systemically reshaping the constitutional understanding of gender, arguing through case law that discrimination on the basis of sex violated the 14th amendment, which formerly applied only to race.
Her work changed literally thousands of local and state laws, granting women the right to do everything from open a bank account to maintain employment while pregnant.
And in her final days, she fought to shape democracy by simply staying alive.
She publicly shared her daily strength training routine and privately suffered colon cancer and pancreatic cancer and tumours and a coronary stent.
Her age was always a concern.
Many urged her to retire under Barack Obama's first term as president, when she was in her late 70s. With a Democratic majority in the Senate, she could have been replaced by a judge who shared her progressive principles.
That she didn't exit the Court during that window will be one of the many things Democrats bemoan the loudest now.
But for Ginsburg, to retire for the sake of a political win would have been beside the whole point.
She believed that government could be better than politics. She wanted a system that could be holistically more fair. She understood that achieving that system involved graceful and frequent defeat.
Indeed, it was in some of her losing cases where her words rang out the loudest.
She told Americans the minority voice didn't need to be submissive, it need not be passive, that it always deserved a seat at the table, a voice in the discussion.
Ginsburg sent a message with her dissents and gained celebrity status
In Burwell vs Hobby Lobby, which allowed a company a religious exemption for paying for employees' birth control, she wrote that the court had failed to understand the difference between a church and a company:
"In sum, your right to swing your arms ends just where the other man's nose begins."
In Shelby County vs Holder, which overturned a voting rights act, she wrote: "Just as buildings in California have a greater need to be earthquake proofed, places where there is greater racial polarisation in voting have a greater need for prophylactic measures to prevent purposeful race discrimination."
And in Ledbetter vs Goodyear Tire Co, a case involving unequal pay for equal work, she wrote: "The court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination."
She'd often read her dissents out loud from the bench, an act of theatre reserved only for the US Supreme Court, donning a flashy feminine collar over her judicial robes.
It was in these minority opinions — the ones that didn't sway US laws — that she gained the most prominence.
It was these dissents that earned her the nickname "notorious RBG" and cultivated her celebrity status past the size of her actions and into a progressive, pop culture icon.
Yet not all the dissents won her popularity
One of Ginsburg's most famous dissents was not one she wrote for the Supreme Court but one that nearly blocked her from getting there.
In a 1984 speech at the University of North Carolina, Ginsburg criticised the landmark 1973 case, Roe vs Wade, which offered sweeping abortion protections for women.
Ginsburg, who supports access to abortion, argued the ruling made for an easily breakable legal precedent.
She said the justices should have grounded the case in the equal protection clause of the 14th amendment, and not in concepts like "privacy" and "personal liberty".
New-wave feminists saw her views as radical and counter to the cause, criticism which almost got her skipped over for the Supreme Court vacancy.
Her husband engaged in a letter writing campaign to secure her a second look.
There's a peculiar irony in the fact Ginsburg's death might be the thing that leads to decades of restricted access to abortion because Roe vs Wade is imperfect law — more political than practical.
2020 has made a lot of Americans numb. Ginsburg's death still found a way to shock
If everything goes as expected and the Senate confirms a Trump-picked judge, the balance of power will tip 6-3 towards the conservative-leaning justices.
In that case, we can expect anti-abortion groups to bring a barrage of cases with the aim of slowly gutting Roe vs Wade through severe restrictions.
And abortion is just one issue.
There's already a case backed by the Trump administration and scheduled for a week after the election that could give the conservative majority a chance to overturn Obamacare, eliminating a public healthcare option.
Immigration protections could be impacted. Advances in LGBTQ rights could be wound back. Any number of state coronavirus public health restrictions could be ruled unconstitutional.
And if the 2020 presidential election result is contested in court, which is more likely than usual given the controversy over mail-in voting, it would be that conservative majority responsible for picking the president.
So, yes.
In this chaotic year, when it feels like everything is changing, some Americans are rightfully concerned this particular event could have dramatic consequences.
So what will be Ginsburg's legacy?
When she graduated law school first in her class (a feat she accomplished while caring for a child and a husband sick with cancer), Ginsburg could not find a single law firm that would hire her because she was a woman.
Today, 60 years later, the world knows her name.
And today, in discussing her replacement, Donald Trump said the judge he plans to nominate, the one to lock in the conservative majority, will also be a woman.
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