RBG's legacy

[PigInZen]

Before someone swoops in to label her a proponent of abortion and baby killing, I wanted to post links to the six cases she argued in front of the Supreme Court prior to being nominated to the US Court of Appeals for the District of Columbia in 1980.

Her true legacy is one of arguing for true gender equality and her arguments and case selection were instrumental in striking down discrimination based on gender in a wide variety of law and bureaucratic policy. The cases she argued often were on behalf of men who were just as discriminated against by law as women.

She was a giant of jurisprudence and Constitutional Law.

Duren v. Missouri (1978)
https://www.oyez.org/cases/1978/77-6067

A jury convicted Billy Duren of first degree murder and first degree robbery. Duren alleged that the selection of this jury violated his Sixth and Fourteenth Amendment right to a trial by a jury chosen from a fair cross section of the community. Specifically, Jackson County allowed an automatic exemption from jury service for women upon request. While women made up 54% of the population in the Jackson County, only 26.7% of people summoned from the jury wheel were women. Defendant had an all-male jury selected from a panel of 48 men and 5 women. The Missouri Supreme Court affirmed the conviction, questioning the validity of Duren’s statistics. The court also held that even if women were disproportionally excluded from jury service, the amount of women who participated in the process was well above constitutional standards.


Califano v. Goldfarb (1976)
https://www.oyez.org/cases/1976/75-699

Leon Goldfarb was a widower who applied for survivor's benefits under the Social Security Act. Even though his wife Hannah had paid Social Security taxes for 25 years, his application was denied. To be eligible for benefits under 42 U.S.C. Section 402, he must have been receiving half his support from his wife at her time of death. Section 402 did not impose this requirement on widows whose husbands had recently passed away. Goldfarb challenged this statute under the Due Process Clause of the Fifth Amendment in the United States District Court for the Eastern District of New York. The District Court ruled that the statute was unconstitutional. The Government appealed to the Supreme Court.


Edwards v. Healy (1974)
https://www.oyez.org/cases/1974/73-759

This case was brought by Miss Healy and others to challenge the Louisiana Constitution and Statutes, exempting women from service on juries unless they filed a written declaration of desire to serve. (from oral arguments, no summary at link)


Weinberger v. Wiesenfeld (1974)
https://www.oyez.org/cases/1974/73-1892

Stephen Wiesenfeld and Paula Polatschek were married in 1970. Polatschek had worked as a teacher for the five years prior to their marriage and continued teaching after they were married. Her salary was the principle source of the couple’s income, and social security contributions were regularly deducted from her salary. In 1972, Polatschek died in childbirth, which left Wiesenfeld with the care of their newborn son. Wiesenfeld applied for social security benefits for himself and his son, and was told that his son could receive them but that he could not. Social Security Act provides benefits based on the earnings of a deceased husband and father that are available to both the children and the widow. The benefits for a deceased wife and mother, however, are only available to the children.


Kahn v. Shevin (1973)
https://www.oyez.org/cases/1973/73-78

Since 1941, Florida has granted a $500 property tax exemption for widows but no similar exemption for widowers. Widower Mel Kahn applied to the Dade County Tax Assessor’s Office for the property tax exemption, which was denied. He sued in circuit court and sought a declaratory judgment. The circuit court held that the statute was gender-based and therefore violated the Equal Protection Clause of the Fourteenth Amendment. The Florida Supreme Court reversed and held that the gender classification had a “fair and substantial relation” to the purpose of the legislation.


Frontiero v. Richardson (1972)
https://www.oyez.org/cases/1972/71-1694

Sharron Frontiero, a lieutenant in the United States Air Force, sought a dependent's allowance for her husband. Federal law provided that the wives of members of the military automatically became dependents; husbands of female members of the military, however, were not accepted as dependents unless they were dependent on their wives for over one-half of their support. Frontiero's request for dependent status for her husband was turned down.

[Randomizer]

How fast will Trump and McConnell rush through a replacement? Especially in what might be the last few months of a presidency. Well McConnell said his rule only applied to Obama.

[flash2015]

It looks like they may want to rush it through, perhaps even before election day:

https://www.cnn.com/2020/09/18/politics ... index.html

If they do rush it through and Biden wins, the democrats should just increase the Supreme Court size to counter it.

[orathaic]

They may also have to add a few states to the union to get more senate seats. (Puerto Rico voted for statehood in recent decade... Right?) And possibly DC?

[Octavious]

If they do rush it through and Biden wins, the democrats should just increase the Supreme Court size to counter it.

Good God, why? The US supreme court is already a national disgrace. Making it bigger just makes the problem worse. The Democrats spent years not fixing an obviously broken system because they were convinced they'd win the last election and gain as the Republicans have, and this incredibly cynical and short sighted policy has well and truly bitten them in the arse. Let's not try and fix one pitiful decision with another.

What they should do is introduce term limits, say 9 years, with one being replaced each year. Some kind of upper age limit wouldn't be a bad idea either. No one over retirement age should be eligible to take up a new position. And scrap the Presidential pick nonsense. There are countless fair ways of picking candidates, and the US has chosen a completely insane method about as far removed from good sense as you can get.

Both parties should hang their heads in shame for allowing this embarrassment to have gone on for so long, and so should the court itself.

[Randomizer]

It would require a constitutional amendment to change the Supreme Court and that would never get past enough Republican controlled states to pass.

It would be easier to get a 60 senator majority and start impeaching all the recent judges that have lied to Congress in their hearings.

[orathaic]

Interesting Randomizer. I didn't realise Impeachment was an option, I guess I assumed that judges were meant to be immune to most power of the other two branches of govt. Meaning they can freely make decisions without undue influence (same as why they don't face any re-elections, as their term is for life...)

I wonder how the average amount of time served on the supreme Court has changed since its founding.

[flash2015]

They may also have to add a few states to the union to get more senate seats. (Puerto Rico voted for statehood in recent decade... Right?) And possibly DC?

It may be easier than I thought. Puerto Rico is going to have another plebiscite in November. If a majority vote for statehood, then it just needs an act of congress to make it so. D.C. will be a bit more complex (there still needs to be some capitol area)...but it is an option too.

If Republicans rush a nomination though, the democrats should go absolutely nuclear on this.

[Matticus13]

If they do rush it through and Biden wins, the democrats should just increase the Supreme Court size to counter it.

Good God, why? The US supreme court is already a national disgrace. Making it bigger just makes the problem worse. The Democrats spent years not fixing an obviously broken system because they were convinced they'd win the last election and gain as the Republicans have, and this incredibly cynical and short sighted policy has well and truly bitten them in the arse. Let's not try and fix one pitiful decision with another.

What they should do is introduce term limits, say 9 years, with one being replaced each year. Some kind of upper age limit wouldn't be a bad idea either. No one over retirement age should be eligible to take up a new position. And scrap the Presidential pick nonsense. There are countless fair ways of picking candidates, and the US has chosen a completely insane method about as far removed from good sense as you can get.

Both parties should hang their heads in shame for allowing this embarrassment to have gone on for so long, and so should the court itself.

Term limits are needed everywhere, including SCOTUS. If I remember correctly, it used to take 60 votes in the Senate to confirm a judge until the Republicans scrapped it for a simple majority.

I fear the Dems will agree with Flash and go with the *FDR plan* to get their way (he was going to increase the number of justices from 9 to 13).

[Octavious]

So, politically speaking, the ideal situation from a Trump perspective is for Trump to be seen enthusiastically pushing to get a new selection before the election, and for the Democrats to somehow thwart him. That would force a lot of Trump hating Republicans to hold their nose and vote for him again.

Is their anything the Democrats can do to stop a new judge taking their place and in doing so give Trump an early Christmas present?

[flash2015]

If they do rush it through and Biden wins, the democrats should just increase the Supreme Court size to counter it.

Good God, why? The US supreme court is already a national disgrace. Making it bigger just makes the problem worse. The Democrats spent years not fixing an obviously broken system because they were convinced they'd win the last election and gain as the Republicans have, and this incredibly cynical and short sighted policy has well and truly bitten them in the arse. Let's not try and fix one pitiful decision with another.

What they should do is introduce term limits, say 9 years, with one being replaced each year. Some kind of upper age limit wouldn't be a bad idea either. No one over retirement age should be eligible to take up a new position. And scrap the Presidential pick nonsense. There are countless fair ways of picking candidates, and the US has chosen a completely insane method about as far removed from good sense as you can get.

Both parties should hang their heads in shame for allowing this embarrassment to have gone on for so long, and so should the court itself.

Term limits are needed everywhere, including SCOTUS. If I remember correctly, it used to take 60 votes in the Senate to confirm a judge until the Republicans scrapped it for a simple majority.

I fear the Dems will agree with Flash and go with the *FDR plan* to get their way (he was going to increase the number of justices from 9 to 13).

I agree with you here, a better solution would be to have term limits (perhaps 12 years?).

The question is - how do you get there? The US system is in need of reform in many areas...but both parties can't see past whatever will give them the most political advantage.

For example, the electoral college is fundamentally broken...but it isn't broken for the reasons the Democrats push (the electoral advantage for smaller states is way overstated - elections are also run by states not the federal government so NPV doesn't work), it is broken because of winner takes all. Republicans are all for the current system of course as it has already given them the presidency twice in the last two decades without winning the popular vote. I would argue that there is something fundamentally wrong with a system where the president is decided by a few states and for most people their vote doesn't count. The president is supposed to be governing the whole country, not only the areas that voted for him/her. You wouldn't have this red state/blue state nonsense if Trump actually had to care what voters in NY and California think (and vice-versa).

The fight over "vote by mail" is largely driven by Democrats seeing advantage in higher turnout (even though "vote by mail" is really, really time consuming to process) vs. Republicans who see advantage via suppressing the vote (the "voter fraud" stuff is nonsense).

The current primary process is broken as it is often generating the most extreme of candidates from both sides (open primary + runoff if needed FTW).

The US was designed specifically not to be parliamentary and the processes and procedures were designed around there not being political parties (e.g. the filibuster was designed to encourage compromise and consensus). But now essentially most things are decided by party line votes making things like hyper-partisan congressional investigations, judicial appointments and impeachment at best problematic...and at worst potentially dangerous to democracy. It probably isn't long before a president gets turfed out via impeachment just because the other party controls congress and the senate.

Obama became president on a promise of working across the aisle. McConnell's response to the Obama presidency was "The single most important thing we want to achieve is for President Obama to be a one-term president". That is not how the system was supposed to work. Since 2008 time Republicans have been playing "no compromise hardball" politics and it has been wildly successful for them. Trump has taken this "no compromise hardball" to 11 as well as openly promoting crazy conspiracy theories and other nonsense, from suggesting Joe Biden is a pedophile (a remarkable number of Republicans believe that and other QAnon nonsense) to saying that Joe Biden, the proverbial "senator for MBNA" is a communist or at least controlled by communists (paradoxically, at the same they are also putting out messaging saying he isn't progressive enough to try and discourage leftists from voting).

As has been said many times "a definition of insanity is doing the same thing again and again and expecting to get different results". If Democrats out of the gate try to compromise with people who are unwilling to compromise at all, Democrats lose. In the grand scheme of things "Roe vs Wade" isn't really that important (I am not really a fan of legislation from the bench - note that 7 of 9 Roe vs Wade judges were appointed by Republicans), the big issue with the Supreme Court is that a heavily biased court can pretty much block any and all legislation from Democrats. You can see that in play now with ObamaCare (which was largely a facsimile of RomneyCare) which Republicans prefer to overturn via litigation rather than legislation. If the court really goes 6-3, I can't see the Democrats saying "looks like we can't achieve anything for a generation. Sucks to be us. See you in 20 years".

Just like the brinkmanship Johnson is going through with the EU to try and get a better deal, I don't see many other choices for democrats other than to go with a similar level of brinkmanship. The full potential "nuclear" option for democrats is defined here (new states, kill the filibuster, increase the size of federal courts, increase the size of the supreme court):

https://www.newyorker.com/news/daily-co ... r-ginsburg

This will probably bring on a full on constitutional crisis and it is highly risky, but again I don't see other options for democrats if they want to be able to achieve anything politically at all. Hopefully it can bring all parties to the table for compromise (e.g. like limited terms for the Supreme Court)...as nothing else has worked so far.

[flash2015]

So, politically speaking, the ideal situation from a Trump perspective is for Trump to be seen enthusiastically pushing to get a new selection before the election, and for the Democrats to somehow thwart him. That would force a lot of Trump hating Republicans to hold their nose and vote for him again.

Is their anything the Democrats can do to stop a new judge taking their place and in doing so give Trump an early Christmas present?

I don't believe the Democrats have many options as the filibuster is gone. They would need to find some really bad, incontrovertible stuff on the nominee...which isn't likely, especially with how fast this process will go.

[Randomizer]

It's harder to find stuff on a nominee when you've had some that refuse to answer questions and Trump is blocking background investigations. So you are left with published court decisions and writings that most won't read through or get ignored.

Look at the Kavanaugh hearing where they limited to a few complaints and witnesses and deliberately ignored other credible ones.