“My most fervent wish is that I will not be replaced until a new president is installed.” — The dying wish of Ruth Bader Ginsburg ’54
In confirming Justice Amy Coney Barrett, Senate Republicans have essentially said, “Whatever.”
Watching the confirmation on Oct. 26, as Democrats had all but given up on fighting the inevitable, I could feel a sense of helplessness creeping. Senate Minority Leader Chuck Schumer, aware that there was nothing left to do, said that Republicans would regret their actions “for a lot longer than they think.” He called the confirmation one of the Senate’s “darkest days.” All this bleak rhetoric left me feeling the same way I felt the night Ginsburg died: deeply saddened, yet powerless to change the outcome.
No matter how blatant the hypocrisy was, Republicans insisted that they could find a justification for their actions. Senator Ted Cruz recited esoteric court confirmations from the 1800’s, shamelessly plugging his new book. Senator Lindsey Graham, declaring he wouldn’t seek a confirmation in an election year, and urging the nation to “hold the tape,” seemed unwilling to be held to his own standard. And Senate Majority Leader Mitch McConnell, whose greatest ambition in life has been shaping a federal judiciary that will long outlive him, could barely contain his glee when given the chance to replace Ginsburg.
All these Senators, and their Republican colleagues, used the logic that their opposition to Merrick Garland and support for filling Ginsburg’s seat were two separate circumstances, dictated by the divided government in 2016 compared to the unified government in 2020. We never heard this justification in 2016; they were focused on “the peoples’ votes” and insisted that the election would decide the open seat. But the most jarring aspect of this hypocrisy is that we never had a chance to stop it. McConnell has said before that if Hillary Clinton had been elected, he wouldn’t have ever allowed her to fill the seat, even after 2016. For them, the banal, facetious justifications are just a superficial layer for what the Supreme Court, and what this election was really about: power.
The Supreme Court is broken. It is broken because multiple justices have been nominated by Presidents who lost the popular vote, an extension of the undemocratic electoral college. But other aspects, such as the tenure, the partisanship and, most controversially, the size, are all in desperate need of reform. As much as we all loved RBG, we should not have had the weight of our democracy placed on the shoulders of 87-year-old. The Supreme Court has too much power, and, as we reflect on the replacement of a champion with her antithesis, we should think about whether our Justices should have so much power that they become our champions, when in a true democracy we should be our own.
Ultimately, the will of the majority should decide the imperative issues of our time, not nine monarchical magistrates. But that’s why we’ve felt so helpless, and why I felt so depressed on the night that Barrett was confirmed. She was nominated by a President who lost the popular vote by a historic margin, and confirmed by a Senate that gave the Senators of Wyoming, with 578,759 people, the same vote as the Senators of California, who represent 55 million people. Unless we change these undemocratic institutions, we will continue to have our futures dictated by minority rule.
My mother grew up under the Apartheid regime in South Africa, where 10 percent of the population ruled over the other 90 percent by creating authoritarian and racist institutions. Here in America, the system is increasingly resembling that minority rule. We can no longer justify the massive influence of “small states” when these states have less people in them than Washington, D.C. But too often, our frustration with these institutions is met with deification of the Founding Fathers, American exceptionalism and a desire to preserve antiquated systems because of tradition.
It doesn’t have to be so. America has amended its constitution in the past, when features were so blatantly undemocratic as to become absurd. The Supreme Court now requires modernization. While “court packing” has become a Republican talking point, one that is repeated so often on Fox News it becomes meaningless, we have to investigate the urgency of reform, whether it be modifying the tenure of judges, creating a bipartisan commission to nominate them, or as a last resort, expanding the court. While progressive leaders such as Senators Ed Markey, Elizabeth Warren and Bernie Sanders have promised to do whatever is necessary to make the court more democratic, President-elect Joe Biden announced the day before the confirmation that he would leave the door open for scholars to advise his next steps if elected. A punt, but a promise to at least address minority rule.
And so, when facing the post-confirmation depression, Cornell students must commit instead to independent-minded questioning of the very foundations of the Supreme Court and our current electoral system, rather than believing RBG alone could have saved our democracy. With the Supreme Court set to rule on Obamacare and potentially strip 20 million people of their healthcare during a pandemic, we need to quickly realize how anti-democratic this institution is. If the Biden administration wants to return to politics as normal and refuses to pursue needed institutional reforms, we have to hold them accountable or watch our democracy further erode. As students at RBG’s alma mater, we have an obligation to continue advocating for reforms to the institution she served in that will pull it from its current minoritarian impulse back towards liberty and justice for all. It is the only thing we can do to honor Ginsburg’s unfulfilled dying wish.
Joseph Mullen is a freshman in the College of Arts and Sciences. Comments can be sent to [email protected]. Guest Room runs periodically throughout the semester.