Who Is The Law?
On the 18th of September 2020, Associate Justice of the Supreme Court of The United States (SCOTUS), Ruth Bader Ginsburg, died at the age of 87 due to a complication with cancer. Ginsburg had served the SCOTUS for over 20 years and was the second woman appointed to the Supreme Court in 1993 by Bill Clinton after a career defined by fighting for women’s reproductive rights, gender equality and other progressive causes. She had worked as a lawyer for the American Civil liberties Union and as its General Counsel from 1973 to 1980. Under Ginsburg, some landmark cases occurred and world changing legislation passed, such as United States v. Virginia (ended single-sex admission at the Virginia Military Institute), Stenberg v. Cahart (Ginsburg cited Roe v. Wade and Planned Parenthood v. Casey to argue that a Nebraska law banning partial birth abortion did not protect the lives of women), Safford United School v. Redding (STOCUS ruled that the 4th Amendment rights of a 13 year-old girl were violated when a male Arizona school official subjected her to a strip search), and Ledbetter v. Goodyear Tire & Rubber (Though the court ruled in favour of the tire giant, Ginsburg supported a female employee who claimed she was being paid less than her male counterparts due to her gender). The truth was that Ginsburg was a progressive, some might even say activist, judge that furthered the rights and liberties of women and members of the LGBTQ+ community like no other Supreme Court Judge before her.
And her dying wish was that she was not replaced until after the Presidential Election, but the Trump Administration are looking to defy her wishes, to disrespect the final demand of a woman who spent decades in service to her country, by appointing her replacement in the form of Amy Coney Barret, an anti-abortion, anti-gun control, anti-health care, anti-climate extremist, who could sit on SCOTUS for 40 years. Barret’s record on reproductive rights, coverage of pre-existing conditions, LGBTQ+ rights, and the dignity of work is abysmal. Under Barret, women would be prosecuted for abortions, Americans will be stripped of healthcare coverage, people would not be allowed marry who they love, and unions will be gutted. She is essentially the anti-Ginsburg. Ginsburg is going to be replaced by a woman who walked through every door she opened for her so that she can promptly shut them all for others behind her. But this isn’t the first time something like this has happened.
In the 1960s and 70s, violent crime in America increased by 126%. The 80s brought the crack cocaine epidemic, and handgun related homicides doubled in 1985 and 1990. The crime rate was on the up, and crimes were heavily reported on and sensationalised by the media, becoming a frequent talking point of political campaigns. In comes Chief Justice of SCOTUS, Earl Warren, who served the Court from 1953 to 1969. Warren headed the court with rulings so world changing it is hard to imagine a world without them. There were landmark cases like Brown v. Board of Education 1954 (desegregated schools), and Loving v. Virginia 1967 (legalised interracial marriage), but more importantly the Miranda Warning which was the result of a 1966 case involving Ernesto Miranda. It was the Warren court’s decisions dealing with criminal justice (specifically the Miranda v. Arizona case) that made him the ire of conservative politicians and a scapegoat for the crime spree. For conservatives, the exploding crime rate wasn’t the result of a lack of economic opportunity or access to guns or funding cuts for all types of social services, but it was all Earl Warren’s fault. Michael Belknap in his book ‘The Supreme Court Under Earl Warren: 1953–1969’ said, “Before Warren became Chief Justice, few politicians would have thought to blame the Supreme Court for the Crime Rate.” But blame they did.
Warren’s court laid forth an entirely new set of protections for Americans’ constitutional rights when dealing with law enforcement: the right to remain silent, the right to a lawyer, the right to have that lawyer present during an investigation, and protection from the use of illegally seized evidence (i.e. the need for police to have a warrant). Critics argued that these rights stifled an already dangerously overstretched police force. You know the archetype of the good guy cop with a rebellious side whose always getting reprimanded by the chief for not sticking to the rules, but damn, he gets the job done, he gets the bad guys — that is a response to Warren era restrictions. However, the ultimate answer to these restrictions would be an unencumbered cop who perfectly internalised the criminal justice systems laws and codes, thus being entrusted to enforce the law fairly no matter what. A police officer so thoroughly trained in the law that they don’t need a balance of powers to justly administer it — a cop who doesn’t have to worry about activist judges because he is the judge, who won’t be stopped by sympathetic juries because he is the jury, and who dishes out the punishments with no mercy because he is the executioner. An officer not driven by emotions or conflict of interests, just someone who has memorised the law and is able to dole it out without compassion. In this frame of mind, a police officer stops being just an instrument or tool of the law, but becomes in themselves the law.
This ideal officer would step behind 20th Century American Political Philosopher and Harvard Professor John Rawls’ ‘Veil of Ignorance’. For Rawls a just man is committed to the view that moral obligations or duties exist equally for everyone (a.k.a. Deontology). Rawls equates justice with fairness, wherein free and equal persons step behind the Veil of Ignorance when determining principles of justice and how people should treat each other. When one steps behind the veil, they are completely ignorant of their particular circumstances, whether they’re rich or poor; physically infirm or able-bodied. The veil blinds the individuals from considering the details. From this standpoint, the only rational way to proceed is to choose a social structure that allows everyone an equal shot at benefitting from the system. An officer behind the veil would be morally obligated to treat an innocent person and criminal the same way, without fear or favour, nor could they allow their own personal biases to influence their actions.
Earl Warren faced so much derision, that he was replaced by Warren Earl Burger (too many Earls and Warrens). Before succeeding Warren, Burger had complained about a drawn out legal process where criminals could bank on their free lawyers getting them off on a technicality — of course, in the real world, this nearly never happens (free attorneys are notoriously ill-equipped), and those loopholes were actually civil rights protections enacted by Warren. Richard Nixon catapulted himself into the White House by criticising Warren’s laws. After an explosion of protest and riots swept the country in the long, hot summer of ’67, Nixon (prior to becoming a Presidential candidate) published an op-ed titled ‘What Has Happened to America?’ In the piece, Nixon blames judges weakening the polices’ ability to fight crime, a point he repeated throughout his Presidency, stating in his speech accepting the Republican Party nomination for President, “ Let us always respect, as I do, our courts and those who serve on them, but let us also recognize that some of our courts in their decisions have gone too far in weakening the peace forces as against the criminal forces in this country.” As Bob Woodward and Scott Armstrong argue in ‘The Brethren: Inside The Supreme Court’, Burger was chosen by Nixon to lead the SCOTUS because of his disdain for Warren’s criminal justice decisions. Though Nixon was impeached, his ‘tough on crime’ and ‘war on crime’ rhetoric persisted into the 80s, adopted by Ronald Reagan. Criminals under this rhetoric are not viewed as relatable human beings in need of help, who turn to to crime out of desperation, but rather savage animals and cutthroats ready to burn the streets and destroy the country. Even Bill and Hilary Clinton took this approach. But even if our justice system could produce a fleet of perfect super cops (which it obviously can’t given how messed up the police forces are in America), it could do nothing to stop gross abuses of power without a separate judicial system to stop it. How and when do our desires for law and order compromise our other values like democracy or a belief in the separation of powers in the criminal justice system?
In risk of sounding cliché, history repeats itself, and is full of patterns. Here we have a repeated pattern: an impeached Republican President decides to replace an activist judge with their polar opposite in an attempt to get their own way. For Nixon, his issue was that Warren was protecting criminals when really he was protecting human and constitutional rights, and with Trump’s prompt replacement of Ginsburg it is because she was too progressive. Trump hates women, I don’t think that’s at all a controversial statement. Here is a man who said of the CEO of Hewlett-Packard, Carly Fiorina, “Look at that face. Would anybody vote for that? Can you imagine that, the face of our next president? I mean, she’s a woman, and I’m not supposed to say bad things, but really, folks, come on. Are we serious?”, a man who has said that we should grab women by their vaginas, a man who, upon Hilary Clinton taking a bathroom break during a Democratic Debate, said, “I know where she went, it’s disgusting, I don’t want to talk about it … No, it’s too disgusting. Don’t say it, it’s disgusting.”, the list goes on. A President whose era has been defined by bigotry, racism, gerontocracy, and a lack of overall progression, in fact his tenure is defined by regression. So it should be no surprise to anyone that Donald J. Trump decided to replace one of the most progressive, woman-loving, activist judges of recent memory, with a women-hating, homophobic extremist. Undoubtedly the Trump Administration will claim how can Barret hate women if she is woman, but her track record on the rights of womanhood have proved her bias. To quote RBG, “ Real change, enduring change happens one step at a time.”