Opinion: Justice Ginsburg Hammers Republicans and Supreme Court Majority for Denying Democracy and Reality

A friend of mine who runs his own small law firm texted me the other day after the financial relief package aimed at helping small businesses stalled in the Senate. Worried over his dwindling ability to keep and compensate his employees, he blamed the Democrats and declared he’s voting for Trump. The Democrats showed themselves, once again, to be “out of touch,” he felt, with the reality of American lives.

Out of touch?

Living in the midst of Donald Trump’s lethal misinformation campaign during the ongoing coronavirus pandemic, the characterization startled me.  Trump’s habitual lying is well-documented, as are his many policies that have made the lives of working-class Americans materially more difficult.  While access to health care is a leading concern for Americans this campaign season, Trump persists in pursuing litigation to dismantle the Affordable Care Act.  These actions hardly seem in touch with the everyday lives and needs of the average American.

Supreme Court Justice Ruth Bader Ginsburg has been a consistently important and strenuous voice in calling out a similar pattern of outright denying reality and undermining democracy by the highest court in the land, dominated now by conservatives and in no small part shaped by Trump, who appointed both Neil Gorsuch and Brett Kavanaugh to the U.S. Supreme Court’s bench.

You may have seen coverage of last Tuesday’s elections in Wisconsin, when voters turned out in large numbers to cast ballots despite the literally life-threatening conditions posed by the coronavirus pandemic, conditions that have motivated most states to issue stay-at-home orders to protect its citizens’ lives.  One wonders if Wisconsin voters viewed Republican rule as life-threatening as the coronavirus.

As reported by PoliticusUsa, Wisconsin Governor Tony Evers issued an executive order to postpone the election to save both lives and the democratic process, and a district court had ordered, late in the week preceding the election, an extension of the absentee voting that allowed voters the opportunity to still request an absentee ballot and submit it until April 13, even if they received it after April 7.  The order was a response to the evolving reality of the coronavirus pandemic.

The Wisconsin Supreme Court rejected Evers and the District Court. Led by Justice Brett Kavanaugh, the U.S. Supreme Court did the same, ruling that this electoral situation, taking place in the midst of the coronavirus pandemic, was not “substantially different” from “an ordinary election.”

Citing this language, Ginsburg stated the obvious, that this ruling “boggles the mind” and will result in massive disenfranchisement of voters.  She wrote:

“The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court’s order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it.”

“With the majority’s stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance — to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.”

In short, the majority’s decision engaged in a flagrant denial of reality, perpetrating also a blatant abrogation of citizens’ constitutional and democratic rights.

Laws are supposed to help us regulate, manage, and navigate the reality of the conditions in which we’re living. If they deny that reality, they risk not just losing their utility to our lives, but they also risk working counteractively, deleteriously, to our lives.

Ginsburg has played this role before of highlighting how law functions repressively and destroys democracy when it refuses to recognize American reality.

She issued a similarly fiery statement when the Chief Justice John Roberts issued a devastating ruling for democracy when he effectively denied the reality of racism pandemic in America.

Think back to June 2013 when the Supreme Court struck down a key part of the 1965 Voting Rights Act that determined which cities, counties, and states needed to seek approval from the Department of Justice before changing their voting laws. When first implemented, the act targeted particular locales with a high degree of racial polarization and a record of institutionalized racially discriminatory practices. The Supreme Court’s majority ruling rationalized that the provision was not based on “current conditions,” suggesting that racial discrimination and inequality are now relics of the past in the identified regions. This ruling gave rise to Justice Ruth Bader Ginsburg’s famous quip in her dissent that the ruling was “like throwing away your umbrella in a rainstorm because you are not getting wet.” Her dissent went on to rattle off eight instances of race-based voter discrimination between 1990 and 2006 in states such as Georgia, Alabama, and Mississippi, states previously subjected to the conditions of the 1965 Voting Rights Act.

Refusing to consider the historical actualities or “current conditions” of race-based voter discrimination and inequality, the Court effectively endorsed racial inequality and exclusion by enabling the conditions that enforce them and removing measures to prevent or remedy such inequality and exclusion.

One only has to review the long record of African American lives lost to acts of police violence to know that Black lives are in fact devalued—or don’t matter in the eyes of our dominant culture; or look at our recalcitrantly segregated society or to any of the instances Justice Ginsburg enumerates in her 2013 dissent to know that people of color have unequal access to educational, political, and employment opportunities in the United States.

From Trump’s litany of lies and misinformation to the Supreme Court’s refusal to acknowledge the American realities, we can see how this pose of innocence, really a violent form of ignorance and dishonesty, is threatening democracy and furthering a repression that disempowers Americans.