Ruth Bader Ginsburg’s Death Could Mean the End of Church/State Separation

The loss of Ruth Bader Ginsburg tonight is a stunning blow to progressives across the country and it throws yet another wrench into the upcoming election. You can bet Senate Majority Leader Mitch McConnell will nominate a replacement ASAP (the obvious hypocrisy be damned) and Donald Trump will do everything he can to rush through the youngest right-wing female judge he can find in the next few weeks.

Will enough Republican senators stand up against their own party? Never count on Republicans to do the right thing.

Remember: Just last week, Trump released a shortlist of possible Supreme Court nominees as a way to remind his base why they put up with him. The list included Judge Allison Rushing, who was specifically called out by a coalition of atheist groups in 2019, before her confirmation to the bench, for “reverse-engineer[ing] results that privilege religion and violate the Constitution.” And there’s also Amy Coney Barrett who was considered for the last SCOTUS opening and whose devout Catholicism found its way into her legal writings. Both women are staunchly against abortion rights.

Replacing Ginsburg — or 82-year-old Stephen Breyer — with any of those right-wing extremists would further solidify the conservative bent of the Court. Chief Justice John Roberts wouldn’t be able to prevent massive social upheavals by flipping sides. There will be no more 5-4 rulings that offer a pleasant surprise to liberals. It would mark the legal end of abortion rights, LGBTQ rights, civil rights, and church/state separation across the nation — to the point where many people living in red states would effectively be second class citizens.

This is not just a doomsday hypothesis. It’s literally what Trump has been telling his base will happen if they re-elect him and keep the Senate in Republican hands.

Historically, Republicans have cared much more than Democrats about the Supreme Court — to our nation’s peril. I’m honestly not sure how much more they can care about the Court right now when it’s the only thing Trump has done well. But you know the GOP will make this crisis work to their advantage.

Ginsburg’s loss is a reminder that liberals need to give a damn about the Judiciary because the issues we tend to fight for, and protest about, are quite literally on the line. Without a fair judiciary, no electoral “blue wave” will make much of a difference since the courts can just overturn laws based on whatever right-wing whims they have. That’s what they’ve been doing in the Trump era already. Anyone sitting out this election because Joe Biden isn’t a perfect candidate is ceding the Courts to the GOP for generations to come.

Ginsburg’s final words, as told to her granddaughter, were “My most fervent wish is that I will not be replaced until a new president is installed.”

Trump won’t care. White evangelicals would be throwing parties tonight if they could.

Biden should make clear that if Republicans replace Ginsburg over the next few months (even during a possible lame duck session), in defiance of their own rules, then he will pack the courts in order to dilute its conservative bent. That would be well within his rights if he has the votes.

The fact that it would be unprecedented has no meaning at a time when Republicans break traditions constantly if it works to their benefit.

Progressives have been saying for years that Democrats must take the Courts seriously. We no longer have a choice.

If church/state issues mean anything to you, then making sure the courts are legitimate — something Republicans don’t give a damn about — is arguably the most important reason to vote for Biden. Sitting out because he’s not a perfect candidate is the most selfish thing you can do right now. Ginsburg’s legacy now depends on it.

***Update***: Americans United for Separation of Church and State’s President and CEO Rachel Laser released this statement:

“As the only organization solely dedicated to protecting the Constitutional principle of separation of church and state, we at Americans United esteem and honor Justice Ruth Bader Ginsburg’s lifelong dedication to real religious freedom, and her influence on many key Supreme Court decisions on this issue in her long service to the court and the American people. “Justice Ginsburg understood that the Constitution established religious freedom as a shield to protect us, not a sword to harm others. Or, as she quoted in one opinion, ‘[y]our right to swing your arms ends just where the other man’s nose begins.’ Time and again, she defended every American’s right to practice any faith, or no faith at all, without harming others. As she explained while quoting Thomas Jefferson, the framers of the First Amendment sought to ‘buil[d] a wall of separation between church and state’ because, she explained, ‘while the union of government and religion tends to destroy government and to degrade religion, separating the two preserves the legitimacy of each.’ “On a court that in recent years has chipped away at religious freedom, granting religious privilege to those who would use their faith to discriminate, to exclude or to deny equality, Justice Ginsburg’s voice on behalf of one of America’s most important founding principles – and the vulnerable people it protects – was stalwart and clear. She consistently joined the opinion most protective of the separation of religion and government in virtually every case during her long tenure. “If she is replaced by a Trump-nominated justice with opposing views, we could face a disastrous erosion of the separation of religion and government. It is particularly sad that a Jewish justice who stood for religious freedom for everyone, including religious minorities, died on the eve of the Jewish New Year. As is said in her faith, may her memory be for a blessing.”

Caroline Mala Corbin, a Professor of Law at the University of Miami who has written extensively on church/state separation, told me “As a tireless advocate for women’s rights, she was a hero of mine.”

Justice Ginsburg's death gives Trump another seat on the Supreme Court. There were already five conservative Justices. Every now and then one might swing to join the liberal 4. With six, we won't simply won't see that. #SupremeCourt #SCOTUS #Ginsburg #RBGRIP #RBG — Caroline Mala Corbin (@CarolineMCorbin) September 19, 2020

Our nation has lost a champion of equality. Justice Ginsburg was a trailblazer, a fighter, and an advocate for the rights of all Americans. She understood that religion should never be used as a weapon against the most vulnerable and that true religious freedom means guaranteeing equality under the law for all Americans, not religious privilege for the powerful few. Her voice on the Court will be missed. While we mourn her loss, we should honor her memory by continuing the fight for a more perfect union. “Real change, enduring change, happens one step at a time.” I agree with the sentiments of Senate Majority Leader Mitch McConnell: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” I urge the Senate to focus on providing relief to Americans who are still struggling because of the COVID19 pandemic and allow the President, whoever that may be, to fill this vacancy in January.