YPR_WebHeader_FALL_1596x176_M
Play Live Radio
Next Up:
0:00
0:00
Available On Air Stations

Supreme Court Justice Ruth Bader Ginsburg Dies At 87

AUDIE CORNISH, HOST:

Justice Ruth Bader Ginsburg, the demure firebrand who, in her 80s, became a legal, cultural and feminist icon, died today. Her death at age 87 thrust the Supreme Court vacancy into the spotlight of the presidential campaign. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Just days before her death, as her strength waned, Ginsburg dictated this statement to her granddaughter Clara. My most fervent wish is that I will not be replaced until a new president is installed. Ginsburg knew what was to come. Her death will have profound consequences for the court and the country. Inside the court, not only is the leader of the liberal wing gone. But with the court about to open a new term, Chief Justice John Roberts, who occasionally splits from fellow conservatives, no longer holds the controlling vote in closely contested cases.

Indeed, a week after the upcoming presidential election, the court is, for the third time, scheduled to hear a challenge brought by Republicans to the Affordable Care Act known as Obamacare. In 2012, the high court upheld the law by a 5-4 vote with Chief Justice Roberts casting the deciding vote and writing the opinion for the majority. But this time, the outcome may well be different. That's because Ginsburg's death gives Republicans the chance to tighten their grip on the court with another Trump appointment that would give conservatives a 6-3 majority. And that would mean that even a defection on the right would leave conservatives with enough votes to prevail in the Obamacare case and many others. That prospect has long had some conservative politicians salivating. Here's Republican Sen. Tom Cotton of Arkansas, who just happens to be on President Trump's Supreme Court shortlist, speaking on Fox News this summer.

(SOUNDBITE OF ARCHIVED RECORDING)

TOM COTTON: Unfortunately, Chief Justice Roberts consistently seems more concerned about the reputation of the court and his reputation among Democrats and the media than the rule of law.

TOTENBERG: At the center of the battle to achieve an essentially ironclad Supreme Court majority for conservatives is Senate Republican leader Mitch McConnell. In 2016, he took a step unprecedented in modern times. He refused for nearly a year to allow any consideration of President Obama's Supreme Court nominee. Back then, McConnell's justification was the upcoming presidential election, which he said would allow voters a chance to weigh in on what kind of a justice they wanted. But now with the tables turned, McConnell has made clear he will not follow the same course. Instead, he'll try immediately to push through a Trump nominee so as to ensure a conservative justice to fill Ginsburg's liberal shoes, even if President Trump were to lose his reelection bid. Asked what he would do in circumstances like these, McConnell said last year that the GOP-controlled Senate would fill the vacancy.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON: If a Supreme Court justice was to die next year, what would you do?

MITCH MCCONNELL: We'd fill it.

TOTENBERG: So what happens in the coming weeks will be bare-knuckle politics writ large on the stage of a presidential election. It will be a fight Ginsburg had hoped to avoid, telling Justice Stevens shortly before his death that she hoped to serve as long as he did until age 90.

(SOUNDBITE OF ARCHIVED RECORDING)

RUTH BADER GINSBURG: And my dream is that I will stay at the court as long as he did.

TOTENBERG: She didn't quite make it. But Ruth Bader Ginsburg was an historic figure. She changed the way the world is for American women, and she did it before she became a Supreme Court justice. For more than a decade until her first judicial appointment in 1980, she led the fight in the courts for gender equality. When she began her legal crusade, women were treated by law differently from men. Hundreds of state and federal laws restricted what women could do, barring them from jobs, rights and even from jury service. By the time she donned judicial robes, however, Ginsburg had wrought a revolution. That was never more evident than in 1996, when, as a relatively new Supreme Court justice, Ginsburg wrote the court's decision, declaring that the Virginia Military Institute could no longer remain an all-male institution. True, said Ginsburg, most women, indeed most men, would not want to meet the rigorous demands of VMI. But the state, she said, could not exclude women who could meet those standards.

(SOUNDBITE OF ARCHIVED RECORDING)

BADER GINSBURG: Estimates about the way most women or most men are will not suffice to deny opportunity to women whose talent and capacity place them outside the average description.

TOTENBERG: By the time Ginsburg was in her 80s, she'd become something of a rock star to women of all ages. She was the subject of a hit documentary, a biopic, merchandise galore that celebrated the Notorious RBG and regular "Saturday Night Live" sketches.

(SOUNDBITE OF TV SHOW, "SATURDAY NIGHT LIVE")

SETH MEYERS: Here to comment is liberal Justice Ruth Bader Ginsburg.

TOTENBERG: Born in Brooklyn, N.Y., Ruth Bader went to public schools and, at 17, entered Cornell on full scholarship. There she met her future husband Martin Ginsburg. The two would later go to Harvard Law School, where Ruth not Marty was the academic star. In 1971, while a law professor at Rutgers University, she filed a brief in the Supreme Court testing whether a state could automatically prefer men over women as executors of estates. The answer was no. It was the first time the court had ever struck down a state law because it discriminated based on gender, and that was just the beginning.

Over the ensuing years, Ginsburg would file dozens of briefs seeking to persuade the courts that the 14th Amendment guarantee of equal protection applies not just to racial and ethnic minorities but to women as well. In an interview with NPR, she explained the legal theory that she eventually sold to the Supreme Court, winning five out of six oral arguments in landmark cases.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

BADER GINSBURG: The words of the 14th Amendment equal protection clause - nor shall any state deny to any person the equal protection of the laws. Well, that word, any person, covers women as well as men, and the Supreme Court woke up to that reality in 1971.

TOTENBERG: In 1980, President Carter named Ginsburg to the U.S. Court of Appeals for the District of Columbia. And in 1993, President Clinton nominated her to the Supreme Court. After the retirement of Justice Sandra Day O'Connor, as the court grew more and more conservative, Ginsburg dissented more and more assertively. And yet, she still won some unexpected and strategic victories by winning over one or two of the conservative justices in important cases. In 2015, in an Arizona case, she authored the court's decision upholding independent redistricting commissions set up by voter referenda as a way of removing some of the partisanship in drawing legislative district lines.

(SOUNDBITE OF ARCHIVED RECORDING)

BADER GINSBURG: Arizona voters sought to restore the core principle that voters should choose their representatives not the other way around.

TOTENBERG: She was a tough fighter and not just on the court. In law school, when her husband was diagnosed with testicular cancer, she took care of him, their 2-year-old toddler and made law review. During more than a quarter of a century on the court, she endured five bouts with cancer herself. And yet, in a recent interview with NPR, she had this to say about her life.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

BADER GINSBURG: I do think that I was born under a very bright star because you think of my life - I get out of law school. I have top grades. No law firm in the city of New York will hire me. I end up teaching, and that gave me time to devote to the movement for evening out the rights of women and men.

TOTENBERG: It also led ultimately to her appointment to the U.S. Supreme Court. To the end of her tenure, Ginsburg remained a special kind of feminist, both decorous and dogged.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.