Ginsberg is known, widely and properly, as someone who advanced women's rights through legal rulings. She sometimes did that through defending the rights of men as well as women to bring the status of the latter into ironic, but glaringly accurate, repose. It was not just women's rights she was advancing, but the very idea of inequality, which she resented and tirelessly worked to reduce.
But she also expressed herself on Roe v. Wade, and in a way that might bring women's rights advocates up a bit short. To wit: In one sense, she didn't like the sweeping effects of the original decision.
Hang on now. She appreciated the effect on women's bodies, as in: Yes, they should have the right to determine what should happen within them. And I have never seen her deviate from the general guidelines put forth by Justice Harry Blackmun in the 1973 ruling, dividing pregnancy into thirds and creating a rule of treatment within. That, it looks to me, is still a solid determination and still makes the most sense, regardless of the efforts of some states to reduce the window of pregnancy determination time to an indecipherable blip.
She thought, though, that to make one rule for the whole country on such a sensitive topic was not in its best interests. Linda Greenhouse quoted her in an expanded obituary in the New York Times two Sundays ago: (which I have read in The New Yorker) She warned against the Supreme Court "taking giant strides and thereby risking a backlash too forceful to contain." She pointed out that the Constitution's framers "allowed to rest in the court's hands large authority trouble on the Constitution's meaning," but "armed the court with no swords to carry out its pronouncements."
So perhaps the best gift the notorious RBG leaves us is the reminder that democracy takes cooperation among the branches, and a recognition that the rule of law has to be dominant. I think, in fact, that Roe v. Wade will go the direction that RBG suggested: That it be left to the states to determine the status of a woman's right to choose within that state. I can disagree with that, and I do, but it might also settle arguments momentarily. It might quell the backlash that RBG already noted.
But that means, too, that gerrymandering must be reversed. The table is already set in several states, precluding any debate or discussion on the topic. Republicans have managed to seize power in ironclad boundaries that present rulings can't undo. The Supreme Court needs to revisit them, because the determination of the right of women to control their bodies within a jurisdiction--a right with few peers--depends upon them and, if it isn't guaranteed, a decent exchange of ideas with both sides at risk will mean that a better discussion will take place. Otherwise, if I'm going to win anyhow, all I need to do is make token comments.
The majority of the country still believes that Roe v. Wade is no worse than a necessary evil, and even Brett Kavanaugh suggested, in his flawed Senate confirmation hearing, that it is settled law. (I can personally doubt that he meant that; Citizens United reversed a previous ruling on campaign spending that wasn't as old as Roe now is--approaching half a century, in fact.).
But opposing forces begin to chip away at such rulings, reducing their effects. Such happened to Brown v. Board, as soon as two years after it was decided. I'm reading a book entitled Democracy In Chains, which says that the voucher movement was specifically designed to fight school desegregation and began in Virginia in 1956. It has taken quite a while to reverse its effects, but societal changes, as well as a well-directed financial effort by conservative elites, has reduced Brown to a shell of its former self--just as the same kind of elites have done to Roe.
It seems that we are too big of a society to settle on any one rule, not even the Constitution, whose meaning we constantly quibble over (Second Amendment, anyone?). We do not care about each other nearly enough to settle upon anything that will supposedly compromise our independence, whether real or imaginary (as in mask-wearing), even including that which risks lives--just as true concerning building houses inside forests to ensure solitude and exposing then to fires that will wipe them out, trapping the inhabitants.
I think RBG's comment on Roe was reflective of that reality. She is now gone, and we must pick up where she left off. It is a precarious place, to be sure.
Be well. Be careful. Wear a mask. With some luck, I'll see you down the road.
Mister Mark
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