The cornered world of ‘constitutionalists’ and progressive-liberals lost its pop-culture icon, Justice Ruth Bader Ginsburg. The diminutive 87-year old had defied age, health issues and political regression of the times to retain her trail-blazing and reformist agenda that had earned her the edgy sobriquet, ‘Notorious RBG’, a lighthearted take on the late rapper ‘Notorious B.I.G’. Part of the nine-member bench of the US Supreme Court, Ginsburg was amongst the minority four liberal judges against five conservative judges ~ which could now potentially tilt to 6-3 in favour of conservatives, if Donald Trump carries through the threat of hastily appointing someone before his own Presidential election.
Ginsburg was an appointee of Democratic President Bill Clinton in 1993, as part of a deliberate attempt to diversify the bench, making her only the second female Supreme Court Judge then. But her outstanding credentials as a moderate and consensus-building jurist in the junior court had earned her the highest possible rating of ‘well qualified’ for a prospective judge in the Supreme Court. She was clearly a product of the prevailing political consciousness, modulation and temper of her times, and beyond.
The trademark feminist in her was unmistakable in her acceptance speech where after thanking President Bill Clinton and her immediate family, she specifically acknowledged the role of her mother as the bravest person by saying, ‘I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons’. Thereafter, there was no looking back for Ginsburg as the fearless ‘constitutionalist’ and reformer who believed that she was not necessarily fighting for women’s rights, as much as upholding the constitutional principle of equal rights and citizenship, without discrimination.
Fellow-Democrat and equally liberal-minded President, Barack Obama, went on to nominate two Judges to the Supreme Court in his two tenures, both women and both progressivemoderates, Sonia Sotomayor and Elena Kagan. Since Judges to the Supreme Court in the United States are nominated by the President themselves, the candidature is also reflective of Presidential sensibilities, moorings and preferences. The only appointment of a Supreme Court Judge in the Trump tenure has been of the conservative and very controversial, Bret Kavanaugh, who faced serious allegations of sexual misconduct by multiple people.
A Washington Post editorial had gone beyond concerns about Kavanaugh’s personal misconduct and warned about his hyper-partisan rhetoric that, ‘poisoned any sense that he could serve as an impartial judge’. However, Kavanaugh had Trump’s full support and the President had unbelievably stated that the controversial jurist, ‘never had even a little blemish on his record’! As there was a new political sensibility, instinct and outlook in the White House, the successful elevation of Kavanaugh to the Court tilted the scales in favour of the dispensationfriendly Conservatives 5-4.
But even in ostensible minority, Ruth Ginsburg kept the shrinking flame of positive ‘dissent’ alive by retaining the spirit of libertarian judicial activism ~ she would independently and fearlessly indulge her own sense of empathy in deciding matters, and this was extremely crucial, as empathy was in short supply from the ruling political quarters.
Often illiberal political leaders are wary of the judiciary, especially of the likes of Ginsburg. Jurists like her disallow the majority rule from degenerating into majority tyranny as they forever question the status quo or regression in society. National governance is always served better with an element of judicial oversight, intervention and activism, as opposed to less of it. Like any institution or individual, the judiciary or even in this case, Ginsburg, didn’t always get it right all the time, but the overall custodianship of upholding the constitutional spirit was impacted better by a positive dissenter like her than by a beholden individual.
The Supreme Court in India too, has often come to the rescue of vulnerable individuals, communities or causes whenever majoritarianism or conservatism has sought to perpetuate an inequity, but perhaps more intervention is needed.
Such positive activism does not tantamount to diminishing democracy, but only to protecting liberties and rights, as the final arbiter of the Constitution. That is what jurists like Ginsburg could bring to the table, and it is hardly surprising that in many cases in Indian Courts, our jurists have relied on the opinions of Justice Ginsburg!
Former Chief Justice KG Balakrishnan when dealing with a case on discrimination had quoted from a lecture given by Ginsburg, ‘We are losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups. For irrational prejudice and rank discrimination are infectious in our world. In this reality, as well as the determination to counter it, we all share’. Now, the judicial realm in the United States will be poorer for want of a powerful voice of ‘dissent’, as the bench runs the risk of becoming a very deferential court with a possible 6-3 preponderance.
The sweet spot of a balanced bench that is neither deferential nor overtly activist is an unknown formula, though history suggests that between the two extremities, the former situation is far worse than the latter. What a Justice Ginsburg could effectively do in a political environment, as vitiated and polarised by the divisive and intimidating tenor of Trump, was her ability to speak truth to power ~ as a jurist, her position afforded that possibility, and she was able to deliver on it without political consideration.
Ironically the spirit of the 87-year old ‘Notorious RBG’ connected with that of the restive millennials, just as another geriatric Jew, Bernie Sanders, vibes equally empathetically with the millennials. Globally, politicians are pandering to the worst instincts and dividing people with hate and revisionism ~ this is where the ‘independence’ of other institutions like the judiciary, armed forces, police, media, bureaucracy etc., needs to be protected and empowered. Herein, lies the necessity of the Ginsburg spirit across oceans!
The writer is Lt Gen PVSM, AVSM (Retd) and former Lt Governor of Andaman & Nicobar Islands and Puducherry