When Ruth Bader Ginsburg, affectionately known in her later years as “RBG,” was once asked when will there be enough women on the Supreme Court, she replied, “When there are nine.”

On Friday, the Supreme Court and the country lost a brilliant thinker who, in her decisions and dissents, often advocated for the working class, people of color, and others suffering the brutalities of capitalism.

Despite Ginsburg’s long life, her death at age 87 was untimely. Millions hoped she would “hang on” until Trump exited the White House in January. In a message dictated to her granddaughter, Ginsburg said, “My most fervent wish is that I will not be replaced until a new president is installed.” Sadly, she and millions of Americans will not be granted that wish.

Now the nation faces the horrifying and likely possibility of a right-wing zealot being nominated by Trump and approved by the Senate in record time. Whether this occurs before the election or after doesn’t matter; even if the GOP loses the Senate, they will remain in power until January 3. With this prospect, the battle for democracy begins anew.

Whoever is nominated will be Ginsburg’s opposite. In the 1970s, while working for the ACLU’s Women’s Rights Project, she played a role in 34 gender-discrimination cases that made it to the Supreme Court; of these, she argued six and won five. As Supreme Court justice, she wrote several majority opinions that led to expanded democratic rights, ruling in 1996 that the Virginia Military Institute could not bar women, in 2015 that Arizona voters could create citizens’ redistricting commissions, and in 2000 that South Carolinians could seek penalties from a polluter, even though the company had shuttered the factory and was no longer discharging waste.

But Ginsburg became even more well-known as a dissenter. In Bush v. Gore (2000), she strenuously objected to the court’s ruling that it was impossible for Florida election officials to count all the ballots within a timeline set by the United States Code (three days after the Court itself ordered the counting stopped), resulting in the Supreme Court’s appointment of George W. Bush to the presidency.

She wrote the dissent to the decision in Ledbetter v. Goodyear (2007), which denied Ledbetter the right to sue her employer for gender-based pay discrimination based on their narrow interpretation of a statutory 180-day filing deadline. In 2009, Obama signed the Lilly Ledbetter Fair Pay Act, which reversed the Supreme Court’s decision.

One of her greatest dissents may be her 2013 opinion in Shelby v. Holder, a crucial civil rights case that has led to the disenfranchisement of hundreds of thousands of voters. The Supreme Court defanged Section 5 of the Voting Rights Act (VRA), which required jurisdictions covered by the act to prove that any changes in their voting procedures did not deny the right to vote to persons based on race, color, or membership in a language minority group. She said:

The sad irony of today’s decision lies in its utter failure to grasp why the [VRA] has proven effective. . . . Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

Ginsburg’s record is mixed, however. In 2005 she wrote for the 8–1 majority an opinion that ruled against the Oneida Nation in New York State. In Sherrill v. Oneida Indian Nation, the Court ruled that the nation could not reclaim sovereignty over lands that the federal government had acquired illegally in the 19th century but that the nation purchased in 1997 and 1998. The lower courts had ruled in the Oneidas’ favor, but, tragically, the Supreme Court reversed them.

Ginsburg was appointed to the Court in 1993, by a Senate vote of 96–3. Such bi-partisanship, when the Senate customarily acceded to the president in his choice of nominee, is unimaginable now.

The unashamed McConnell has announced that he will move ahead with a vote if Trump nominates someone to replace Ginsburg, and it’s likely Trump will do just that. Hypocrite that he is, McConnell refused to put forward President Obama’s nominee, Merrick Garland, when Obama had nearly a year left in office, saying that the voters should have their say in the matter. This was a clear dereliction of duty.

There are mitigating circumstances that may slow down the nomination process. Some Republican senators, like Susan Collins of Maine and Cory Gardner of Colorado, are in jeopardy of losing their seats, and their voters may not appreciate their siding with McConnell. The 2018 Senate vote for ultra-conservative Brett Kavanaugh was a close 50–48, and the vote for a new appointee could be close, too. But another, more important factor is that rushing a vote on a nominee may disgust some of the still-undecided electorate to the point where they reject the GOP and vote to overturn the Republican grip on the Senate and elect Biden.

What matters most is where the people stand and whether they are willing to take a stand for democracy. Perhaps voters who thought they would remain on the sidelines will be driven to the polls by the fear that Ginsburg’s replacement will be her polar opposite: a young, pro-corporate, anti-worker, anti-environment, anti-abortion, racist, misogynist hand-picked by the Federalist Society, an extreme right-wing “think tank.”

McConnell may not allow voters to “have their say” on a Supreme Court nominee, but voters will speak loud and clear anyway. Early voting began in four states on Friday, the same day as Ginsburg’s death, and 60% of voters have indicated that they prefer to vote early, a good indication that more people will vote than ever.

One day, in the, hopefully, not too-distant future, someone will ask, when will there be enough Supreme Court justices who look out for the interests of the working class, the poor, people of color, women, LGBTQ persons, and immigrants?

When there are nine.

The struggles we wage today — in the elections and in the streets — will make this a reality tomorrow.

Image: LBJ Library, Public Domain.

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