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Ruth Bader Ginsburg’s last dying wish and the threat to the legitimacy of the court | COMMENTARY

Rep. Eric Swalwell's daughter Kathryn pays her respects to Justice Ruth Bader Ginsburg as she lies in state in Statuary Hall of the U.S. Capitol on September 25 in Washington, D.C.
Rep. Eric Swalwell's daughter Kathryn pays her respects to Justice Ruth Bader Ginsburg as she lies in state in Statuary Hall of the U.S. Capitol on September 25 in Washington, D.C. (Pool/Getty Images)

Among my fondest memories working at the Supreme Court was the sight and sound of Justice Ruth Bader Ginsburg and Justice Antonin Scalia, shoulder to shoulder, belting out Christmas carols at the annual holiday celebration. Theirs was an improbable, decades-long friendship — a Catholic originalist and a Jewish feminist, a principled conservative and a pioneering liberal — that reflected the noblest vision of the nation’s highest court, a shared commitment that one organ of American government stood above the banal tumult of politics.

Last week, President Donald Trump had the temerity to doubt the dying words of Justice Ginsburg, relayed to the American people by her granddaughter. On Saturday, by announcing a nominee just weeks before the election, he disregarded and dishonored them.

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Justice Ginsburg’s fervent last wish — to have her successor named by the next president — was not about preserving the Supreme Court’s precarious political balance. It was a warning to a nation already on edge that appointing a justice on the eve of an acrimonious presidential election would drain the court of its public legitimacy and tear America apart. It would turn the judiciary into the one thing, particularly in this moment, it cannot afford to become: another polarized and nakedly political body.

The branch of government with neither an army nor the power to tax is only as strong as the people’s faith in it. Justice Ginsburg knew this. For a diverse, divided country to accept the court’s pronouncements, the people must believe its judgments are not preordained by the crass partisan winds of the day. This conviction for the moment endures. It is renewed each time a justice casts an unexpected vote. When Chief Justice John Roberts votes to uphold the Affordable Care Act. When Justice Anthony Kennedy decides that marriage equality is the law of the land.

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We abide the court’s rulings because, even if we disagree with them, many of us still believe the court is composed of the greatest legal minds of our generation applying bedrock principles, refracted through their judicial philosophies and lived experiences and God-granted wisdom, to settle the nation’s most contentious issues. Because of this faith, we follow the law.

But it was not always so. Justice Stephen Breyer, for whom I had the privilege of clerking, often reminds audiences, after Worchester v. Georgia in 1832, where the Supreme Court recognized the tribal sovereignty of the Cherokee Native Americans. President Andrew Jackson questioned the court’s power to compel Georgia to comply with its ruling: “John Marshall has made his decision, now let him enforce it.” The Trail of Tears followed.

A century later, even after a unanimous decision in Brown v. Board of Education (1952), the governor of Arkansas directed the state militia to block the schoolhouse doors so Black children could not attend Little Rock Central High School. President Dwight Eisenhower had to dispatch the 101st Airborne Division to enforce the court’s rulings.

The progress we have made should not be taken for granted. Our country survived Bush v. Gore because of the trust we place in the court. Vice President Al Gore conceded the election, President George W. Bush took the oath, and the Republic endured.

This fragile trust has never been more at risk. Gone are the days when Justice John Paul Stevens and Justice Scalia, representing the far left and right flanks of the court, were unanimously confirmed on the strength of their qualifications. Today, serious people are talking about adding two to four seats to the nine-member Supreme Court, granting statehood to Puerto Rico and Washington, D.C., and abolishing the filibuster, proposals that could stand on their merits but are being pitched as righteous retaliation as the President rushes to fill a vacancy even as ballots are being cast to replace him.

This race to the bottom has no end. Except that America returns to a grim time when the court’s decisions were only as valid as the weight of public sentiment behind them.

I would like to believe Justice Scalia would join his friend in urging our senators to extend the same courtesy to Justice Ginsburg that he was ultimately accorded, to have a successor confirmed only after the people have spoken. For he would understand that Justice Ginsburg’s parting wish was never about her legacy, but about the legitimacy of the court. It was the desperate plea of an American patriot, witnessing with her closing eyes a country riven by race and class and politics and summoning the nation’s better angels when we need it most.

To deny her dying wish will imperil the court she spent her life serving and divide this nation in ways that may never be undone. President Trump does not realize this, or he does not care. Either way, the rest of us must.

Thiru Vignarajah (thiru.vignarajah@dlapiper.com) is former deputy attorney general of Maryland and was a law clerk to Justice Stephen Breyer and president of the Harvard Law Review.

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