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RBG Is No Hero

Ruth Bader Ginsburg’s death is seen by many as a blow to progressive politics. But that doesn’t mean her record on the Supreme Court is unequivocally praiseworthy. From racial justice to native sovereignty to prisoners’ rights, RBG’s rulings show a deep lack of care for the exploited and oppressed. Moreover, she was a member of an institution that has always been used as a tool against working class people.

Rebecca Margolies

October 8, 2020
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Image: Manuel Balce Ceneta / AP file

Supreme Court Justice Ruth Bader Ginsburg’s recent death sent shockwaves through the entire United States. People across the political spectrum accurately noted that her death and the ensuing Supreme Court vacancy would make it even easier for the right to enact their policies on everything from workers’ power to racial justice to trans rights to the bodily autonomy of people with uteruses. Less accurately, liberals lionized her as a feminist icon and a progressive saint. It is true that her death has the potential to make the work of socialists even more difficult, and her rulings did advance state recognition of the rights of some women, some LGBTQ people, and some disabled people. However, her record — which is at best mixed on oppression and upholds state power and capital at every turn — is one that socialists should be deeply skeptical of.

On Race

That the canonization of Ginsburg comes during a time of antiracist uprising is especially troubling, given her dismissive stance towards Black revolutionary politics. When asked for comment on former San Francisco 49ers quarterback Colin Kaepernick’s refusal to stand during the national anthem, Ginsburg said she thought his silent protest against racism and police brutality was “really dumb,” adding “if they want to be stupid, there’s no law that should be preventive. If they want to be arrogant, there’s no law that prevents them from that. What I would do is strongly take issue with the point of view that they are expressing when they do that.” Ginsburg clearly viewed herself as generous and tolerant for stating that she “wouldn’t lock a person up for doing it.” “It,” of course, is the exercise of their first amendment rights and the defense of the cause of oppressed people. 

Her dismissive, callous attitude towards someone asking the state not to murder Black people mirrors the attitude of conservative Justice Atonin Scalia, whose friendship with Ginsburg centrists often tout as an example of how everyone should get along. Scalia, when asked about flag burning in 2012, said, “I would not allow people to go about burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged.” Though they are often viewed as opposites, Ginsburg and Scalia’s friendship is clearly built on a foundation of shared disdain for dissenters, their hatred of people who dare to question the oppressive systems of the United States only barely held back by what is allegedly the most important law in the country. Kaepernick himself agreed, saying, “I was reading an article and it refers to white critique of black protests and how they try to de-legitimize it by calling it ‘idiotic, dumb, stupid,’ things of that nature, so they can sidestep the real issue… As I was reading that I saw more and more truth how this has been approached by people in power and white people in power in particular.” Ginsburg was uninterested in interrogating the root of white power in the United States. Even her apology was dismissive, saying she was “Barely aware of the incident or its purpose, my comments were inappropriately dismissive and harsh. I should have declined to respond.” But it’s clear who and what Ginsburg respected or thought was worthy of consideration, and Black struggle did not fall in that category. 

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The fact that, at best, Ginsburg did not find the position of Black people in the United States to be worthy of consideration at all is further proven by the fact that in her entire tenure on the Supreme Court, she hired only one Black clerk, meaning that 0.6 percent of her hires were Black in a country that is 13.4% Black. Ginsburg was uninterested in listening to Black voices in or out of her chambers. 

Ruling Against Indigenous Sovereignty

Ginsburg’s record on Indigenous sovereignty should be equally troubling for anyone who opposes U.S. imperialism. While her ruling in the 1997 Supreme Court case Strate v. A1 Contractors shows her lack of respect for tribal sovereignty, 2005’s Sherrill v. Oneida presents an even clearer example. When the Oneida nation purchased back land stolen from them over the centuries by New York state, they attempted to reaffirm their sovereignty over their tribal lands. The Supreme Court shot them down, and Ginsburg wrote the majority decision. “Given the longstanding non-Indian character of the area and its inhabitants, the regulatory authority constantly exercised by New York State and its counties and towns, and the Oneidas’ long delay in seeking judicial relief against parties other than the United States, we hold that the tribe cannot unilaterally revive its ancient sovereignty, in whole or in part, over the parcels at issue.” She continued that the Court must stop “the Tribe from rekindling the embers of sovereignty that long ago grew cold.” Basically, Ginsburg ruled that if a crime happened long enough ago, was big enough and successful enough, it’s legal. As historian Michael Leroy Oberg wrote, Ginsburg was saying, “History, and the law, are written by the winners. You are out of luck.” It’s rare to see someone in power say the quiet part quite so loudly.

Especially egregious was her decision to draw upon the so-called “discovery doctrine,” which was expounded on in U.S. law in the early 19th century. The discovery doctrine states that land belongs to any European Christian monarch whose subjects claim it, and that non-Europeans cannot have sovereignty. It was disgusting and racist in 1823, and it’s shocking that it would be used as the basis for a decision by a supposedly progressive judge in 2005. Though her later decisions on cases of Indigenous sovereignty do show a change in attitude for the better, this does not erase her early appalling application of the law to obstruct Indigenous sovereignty. 

Mixed Record on Criminal Justice

Ginsburg’s record on criminal justice also deserves scrutiny, and is, at best, mixed. Perhaps the best thing that could be said of her in this area is that she appeared to be anti-death penalty, without ever stating so explicitly. She occasionally seemed to vindicate prisoners rights, as when she dissented in Beard v. Banks, when the court upheld 23-hour solitary confinement, which is, by just about any measure, torture. Another case when Ginsburg ruled on the side of prisoners was Kimbrough v. United States, which allows judges to be more lenient than racist drug sentencing guidelines dictate. 

Other times, she ruled to make the lives of the 2.3 million incarcerated Americans much worse. She wrote the majority opinion on Porter v. Nussle, which made it harder for prisoners to argue their rights in court, and joined the opinion on Overton v. Bazzetta, which upheld brutal restrictions on visits to prisons in Michigan. Most appallingly, this includes a possible lifetime ban on visits for prisoners who commit substance-abuse violations. She also joined the so-called conservative branch of the Court in giving the Trump administration a win that would allow them to keep defendants locked up for longer.

Unsurprisingly, given her stated thoughts on the Black Lives Matter movement, while she signed on to the dissent which supported the prisoners’ side in Utah v. Streiff, she did not sign on to Justice Sonia Sotomayor’s dissent, which has been called a Black Lives Matter manifesto.

On Immigration

Ginsburg’s position on immigration is even more straightforwardly troubling. In one of the last cases she heard, she sided with the Trump administration in a ruling that will greatly expedite the deportation of asylum-seekers. The case of Vijayakumar Thuraissigiam, a Tamil who fled Sri Lanka following ethnically-targeted violence, is emblematic of so many asylum seekers. After a 13-minute hearing, an immigration official decided they believed his account of violence, but were going to return him to face possible torture and death since he could not name exactly who had arrested him and why. It’s a thin pretext for deportation, born of racism and xenophobia, the type of which is used against immigrants more and more frequently. The fact that Ginsburg would humor this patently ridiculous argument shows that she was once again, at best, incurious about the actual workings of white supremacy and imperialism in the United States. 

The result of her decision is that, as one former top immigration official says, “asylum by now pretty much exists in name only.” On the other side, Trump’s Department of Homeland Security touted the ruling as “an important victory for enforcement of the immigration laws.” Enforcement of immigration laws has long been code for ethnic cleansing, in the American context and elsewhere. Even if you don’t take that into account, immigration enforcement equals death for so many people, mostly Latinx, Indigenous, and Black people, in the United States. The fact that Ginsburg would hand a white supremacist government this victory again shows she either actively supported these aims or simply didn’t care enough to connect the dots.

A Friend to Corporations

When it comes to the increasing power of corporations, Ginsburg played her part as well. Though she was, by some measures, the least likely member of the current Supreme Court to side with businesses, she was hardly anti-corporation. “The four Democratic appointees serving on the Roberts Court are far more business-friendly than Democratic appointees of any other Court era,” write the researchers in a 2015 study on business and the Supreme Court. “Even more surprising, the Democrats vote in favor of business at significantly higher rates than Republican appointees in all the other chief justice periods since 1946.” It’s a sign of how far right U.S. politics have shifted, and how the Supreme Court isn’t the tool of progress that some hold onto hope it can be, that anyone who replaces her is almost certain to be even more “business-friendly,” more anti-worker, and more anti-environment.

Looking at Ginsburg’s record, it’s clear that while she may be one of the most progressive judges on the Supreme Court, and equally clear that anyone Trump replaces her with will be much much worse, she had absolutely no interest in questioning the foundations of American power, of defying capital, or of upholding the rights of the oppressed, unless those oppressed people were white women. At best, she was deeply incurious about the lives of people different, and with less power, than her. At worst, she actively made their lives worse. She does not deserve lionization, but even if she was the progressive saint some liberals make her out to be, it wouldn’t be enough. The Supreme Court itself is an undemocratic institution that has always been used to consolidate the power of capitalists and as a tool against working class people. 

Ginsburg’s politics are worthy of scrutiny, but the problem isn’t her. The problem is a system that gives some people disproportionate say over the lives of everyone else, and that attempts to strip power from the vast majority of people while tricking us into thinking we chose this system. One single progressive judge was never going to save us. The only thing that will save the working class and oppressed people of not only the United States but the entire world is to organize to take our power back from people like Ginsburg.

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