As I write this October column, we are in the middle of U.S. Senate judicial confirmation hearings. The Republicans want to fill the position left vacant by the passing of Ruth Bader Ginsberg. Justice Ginsberg, along with Justice Thurgood Marshall, were perhaps the only two justices ever to serve on our Supreme Court who had a history of actively fighting to advance social justice before they were appointed to the bench.
It’s widely reported that the Federalist Society has been handpicking judges for Mr. Trump. It’s chilling to me that the bullies of the Federalist Society have any influence in the selection of any of the members of our judiciary. When I was in law school, the guys — and they were almost all guys who were a part of the Federalist Society — whined that any person of color was only admitted to the law school because of affirmative action, despite the fact that UW, as a public institution in Washington, was barred from affirmative action.
Their narrative of unfairness unless things are heavily tilted in their direction echoes in the narrative that we have an “activist” judiciary. “Activist” judges are judges who tend to interpret laws in a manner that eliminates inequality and injustice, meaning laws are upheld that strive for this and struck down when they move away from it. Conservative judges overturn laws that seek to protect workers and the environment and create greater justice, often applying the term “originalism” to do so. To get more in the weeds on this topic, I recommend “Supreme Inequality” by Adam Cohen.
Throughout our history, in the aftermath of the rise of totalitarian tendencies, reform happened as average citizens repeatedly found ways to reclaim power. Average citizens refused to approve our Constitution without the Bill of Rights: the first 10 amendments that hoped to protect individual liberties and curb governmental overreach. Of the additional 17 amendments, eight have been about expanding access to voting or limiting the power of the executive: expanding the vote to include nonwhite men, then expanding the vote to women, lowering the voting age to 18, allowing residents of the District of Columbia to vote for the president. Then, most recently, in 1964 the 24th Amendment banned the poll tax.
As we see record-breaking voter turnout in early voting, we see average citizen heroes are reclaiming our power right now. My hope is we will repeat the part of our history where we amend our Constitution to protect our democracy. Given the voter suppression efforts, I would like the strongest possible voter protection law — “Neither Congress nor the states shall make any law that abridges or unnecessarily burdens the right of citizens over 16 to vote” — and amendments that end the Electoral College and limit judicial appointments to 25 years.
We have the ability to overcome the inequity of our nation’s founding. Voting is a powerful start, but like Justice Ginsberg, even if we see enormous change in our lifetime, if we aren’t relentless, our dying breath may be tinged with regret that progress may be lost.
Read more in the Oct. 21-27, 2020 issue.