Justice Ruth Bader Ginsberg is one of the most renowned progressive heroes in the country, and as a long-serving member of the nation’s highest court, she’s certainly earned that distinction. While many people are familiar with the “notorious RBG,” however, relatively fewer people are familiar with her bold legal strategy in the Trump era. By tapping into her early memories of law school and by making some savvy political decisions, Justice Ginsberg has thrown a wrench into the Republican judicial machinery trying to overturn liberal legal precedent.
Justice Ruth Bader Ginsberg has plenty of lessons to teach the rest of us, now more than ever before. Here’s an exploration of RBG’s bold legal strategy, and why it’s so particularly clever given our current political context.
Should we even consider this case?
If there’s an easy way to describe RBG’s bold legal strategy, it’s by illustrating just how frequently she asks the question of whether she and her fellow Supreme Court Justices even need to consider a case in the first place. The Supreme Court is the highest court in the land, and as such is regularly inundated with a myriad of hot-ticket cases which could set a national precedent and dramatically reshape American life. Right now, there’s a conservative majority on the Supreme Court that ensures any such cases they take will likely overturn established liberal precedent or put forward new conservative ones.
RBG has effectively resorted to a strategy of asking whether the court should even consider a case to ensure that it doesn’t take it up, and in turn overturn liberal precedent by ushering in a new, conservative-leaning opinion. It’s a bold and quite clever legal strategy, but it’s also one that’s likely to be used by conservatives themselves one day when (not if) they lose their majority on the Supreme Court.
Previously, RBG’s legal strategy has been defined as “cautious radicalism,” but these days she seems more oriented around clogging up the works of the court solely to ensure that conservative majority enabled by President Trump doesn’t radically disrupt the legal ongoings of the nation. Having only recently dealt with serious health issues related to lung cancer surgery, it’s quite impressive that RBG has the intellectual and physical capacity to deploy such a clever strategy in what are obviously trying times for her.
What motivates her?
We can find the motivation for RBG’s latest strategy by reviewing some of her favorite court cases. She’s made clear that the 1943 case of McNabb v. US has guided her legal decision-making in the past. That case famously held that the observance of procedural safeguards was essential to safeguarding liberty, something RBG has heavily incorporated into her own political maneuvering decades later.
Progressives across the country would be well-advised to follow in her footsteps and look to previous legal cases when discerning strategies for 21st century resistance to conservative legal power. Despite President Trump’s ability to nominate new Supreme Court Justices, not all hope is lost when it comes to waging legal battles in the nation’s highest court.