briefing, Albert Mohler

Special Edition: The Death of Justice Ruth Bader Ginsburg and the Future of the Supreme Court

Friday, September 18, 2020

This is a rush transcript. This copy may not be in its final form and may be updated.

This is a special edition of The Briefing. I’m Albert Mohler, and this is Friday, September 18, 2020.

Part I

Justice Ruth Bader Ginsburg, 1933-2020: The Death of a Supreme Court Justice and the Future of the Supreme Court

Supreme Court Justice Ruth Bader Ginsburg died at her home tonight in Washington, DC, bringing to an end one of the most epic and influential tenures of any justice on the Supreme Court of the United States. By any measure, Ruth Bader Ginsburg was history, and she made history.

And with her death coming even as the 2020 presidential election has reached a fever pitch, and even as the future of the Supreme Court is squarely before our eyes, now in the aftermath of her death history will be made one way or another in the United States Senate and by the president of the United States. We’re looking at the fact that it is not just one out of nine seats that is at stake here, it’s not just the transition that comes with the death of any justice. This is for the left as big a loss as was several years ago experienced by the right with the sudden death of Justice Antonin Scalia.

When it comes to Ruth Bader Ginsburg, she was not only one of the leaders of the liberal wing on the Supreme Court for just about 30 years, 27 years to be exact, she was actually in many ways a great symbolic leader of the left in American constitutional history, going back to the period before she even joined the Supreme Court. In essence, Ruth Bader Ginsburg had two epic careers in the law, one as a law professor and litigator before the Supreme Court and the second on the Supreme Court.

Now, with the political context being what it is, there is no way that these issues can be avoided. There is a lot for Christians to consider here. For one thing, we’re talking about the death of a human being who lived her life before the American people for the better part of five or six decades. She was known in legal circles much longer than that, but she leapt into national consciousness in the early 1970s working mostly as the head of a legal team on behalf of the American Civil Liberties Union, focusing on making the case before the Supreme Court in six different very historic cases for the equality of women as she styled it and for other issues that were of importance, not only to the cultural left, but also to groups such as the ACLU and civil libertarians.

But what made Ruth Bader Ginsburg, eventually known as the Notorious RBG, is the fact that she became the iconic litigator for feminist causes, and just about every feminist cause was a part of her concern. And it was her brilliant mind and it was her ability as a lawyer, a litigator before the Supreme Court, that brought her to the nation’s consciousness. And then, of course, it was in 1993 that President Bill Clinton appointed her to the Supreme Court of the United States.

Now, it’s interesting to note that Judge Ginsburg had been appointed by President Jimmy Carter to the DC Circuit Court of Appeals, that is, the United States Court of Appeals for the DC Circuit. As we often mention on The Briefing, that is the court, the appeals court, that is just under the Supreme Court of the United States in prominence in the nation. Now, just about any judge appointed to the DC Circuit is to be considered eligible to be promoted to the Supreme Court. It’s something of a waiting room, as some have described it, for appointment to the Supreme Court.

Thus, there was very little surprise when Bill Clinton chose Judge Ginsburg to become Justice Ginsburg in 1993. As I said, she had already become a feminist iconic figure by that time, she was very well known to the nation, and she would have been on any Democratic president’s short list. But nonetheless, she was far more publicly identified on many of these issues, already deeply of concern in the cultural divide in the United States, and so bill Clinton knew what he was doing when he appointed her.

This was clear at the time, and it became even more clear in subsequent years. And by the way, just last year, speaking at Georgetown University in a very unusual joint appearance, former President Clinton, sharing the stage with his wife, Hillary Clinton, the 2016 Democratic presidential nominee, and Justice Ginsburg herself, former President Clinton admitted in public that he had explicitly asked Ruth Bader Ginsburg as she was under consideration for nomination to the Supreme Court whether or not she would use her influence on the court to uphold the Roe v. Wade decision legalizing abortion, that decision of 1973.

As ABC News reported in October of last year, the former president revealed that he had a conversation about abortion with Ruth Bader Ginsburg, and the former president made very clear this was central to his appointment. “There is one thing that we did discuss,” said Clinton, “and I feel I should tell you, because it will illustrate why I thought I should appoint her.” Bill Clinton went on to say, “Abortion was a big issue in 1992, the right to choose. I was one of the first pro-choice Democrats to run since Roe v. Wade who actually benefited from Roe v. Wade.”

“Now, she didn’t have to say anything about this,” said Clinton. “She knew this perfectly well, that I was under a lot of pressure to make sure I appointed someone who was simon-pure, which I had said was important.” Now, the key issue here was that the former president basically admitted that he did what they said they did not do back in 1993, and that was discuss abortion. Now we know they did, but Ruth Bader Ginsburg’s support for legalized abortion was no surprise to anyone.

And it was also no surprise that just a matter of weeks ago, Planned Parenthood was very laudatory about Justice Ginsburg, as it was known that she was in the fight of her life against a recurrence of cancer. One of the issues to which Planned Parenthood not surprisingly pointed was the steadfast support of abortion rights by Ruth Bader Ginsburg, and that extended even to her opposition to the Partial-Birth Abortion Ban Act that was signed into law during the presidency of George W. Bush.

The fact is, Ruth Bader Ginsburg was one of the most effective defenders of abortion, which is to say one of the most significant advocates of legal abortion, in any recent period of American history. What she made very clear is the fact that she was going to uphold to the greatest degree of her influence what she would have considered a woman’s right to abortion under any and all circumstances. She dismissed the fact that any government had any right to speak into this issue on behalf of the dignity and sanctity of the unborn life.

And let’s just remember what we’re talking about here with partial-birth abortion. It was the procedure whereby a baby, who was either at or practically at full-term development, was partially delivered and the abortion taking place at just the last minute, so that the death of the baby would be categorized as an abortion rather than homicide. Now, one of the things for Christians to consider here is the fact that we often tend to use language, and furthermore even to fall into patterns of thinking, that insinuate that we are looking at our side coming with principles and convictions up against the other side that comes to us merely with an agenda. But we have to recognize, they come with their own principles and convictions too.

Here’s where we need to recognize, this is how worldviews work. Ruth Bader Ginsburg was not a political opportunist. She put herself on the line at a time when it was politically, and for that matter professionally, unpalatable and almost untenable. She put her career at risk. She had graduated from Cornell University, where she met her future husband, Martin D. Ginsburg, who also became a lawyer. She and he eventually went to Harvard Law School. She eventually graduated, having her last year of law school at Columbia Law School there in New York City. She graduated with the law degree from Columbia University, and she put just about everything at risk, being one of just a handful of women who had been in her Harvard Law School class. Her number was nine out of about 500 entering students.

The point I’m making is that Ruth Bader Ginsburg demonstrates a remarkable consistency over the entirety of her legal and professional career, both before the court as a litigator and advocate and on the court as a justice. There is no reason to doubt that she was operating out of a deep reservoir of conviction, and she spoke often of her own principles and conviction. That’s why she became so lionized and honored on the left, and that’s why she became known as the Notorious RBG.

So Christians here should pause for a moment and recognize that what we’re actually observing here is that very deep and very genuine division amongst the American people when it comes to our basic understanding of the world, those basic principles and convictions from which we operate. Here’s the point. It’s not enough to be a person of conviction, it’s not enough to be a person of principle, if those convictions are wrong and those principles are erroneous. Christians looking at Ruth Bader Ginsburg see and respect her courage, a courage that kept her in that role far longer than many others could have survived, a courage that was demonstrated in how she fought against recurring bouts of cancer. She was born in 1933. She died just tonight, earlier this evening. It was a very significant 87 years of life.

And furthermore, Christians understand that we should respect the grieving of those who have lost a loved one. In the case of James and Jane, her son and daughter, they’ve lost their mother. And it was very, very clear that Ruth Bader Ginsburg and her husband, better known as Marty Ginsburg, were not only a power couple, they were deeply in love with one another and devoted to one another. Marty had developed testicular cancer, which nearly cost him his life early in their marriage. And Ruth Bader Ginsburg loved him devotedly, and he supported her devotedly. Marty Ginsburg died in 2010.

So looking at the life and legacy of Ruth Bader Ginsburg, Christians understand that convictions and principles matter, courage matters, and Ruth Bader Ginsburg demonstrated principles and conviction and courage, but lamentably, they were convictions that we believe were profoundly wrong, especially when it comes to issues such as abortion, homosexuality. Ruth Bader Ginsburg was proud of the fact that she became the first justice of the Supreme Court to preside over a same sex wedding ceremony. And of course she was amongst the majority of the Supreme Court that in 2015 handed down the Obergefell decision legalizing same sex marriage.

On some of the issues that Ruth Bader Ginsburg argued before the court during the period, say, from 1973 to 1978, even Christian conservatives would agree with the rightness of some of those causes when it came to the right of women to gain entrance to public universities and other things. But beyond that, we have to recognize that the worldview of Ruth Bader Ginsburg was one that saw the established structures and morality as oppressive and patriarchal. They had to be done away with. And she saw to it with the great energies of her life that she did everything possible to chip away at, and then to discard, many of those principles.

And here’s where they run into conflict in this great worldview divide with what we as Christians, operating out of a biblical worldview, see as absolutely essential, non-negotiable: the sanctity and dignity of every single human life, including unborn life in the womb; the sanctity and dignity of the family and marriage; and marriage is the union, exclusively the union, of a man and a woman. On these and so many other issues, Ruth Bader Ginsburg, as the Notorious RBG, was someone that Christian conservatives rightly saw as a major power and influence in the United States at the expense of issues that we hold dear.

Part II

The Stage Is Set for an Epic Political Battle as the Nation Looks to the White House, Supreme Court, and the United States Senate

But we are also right in the middle of a presidential election, and we’re looking at the election of roughly a third of the Senate at the same time, and this is an explosive political moment. Let me speak to that explicitly. There’s just no way this is going to be delayed, and both sides in this national conflict, and that means both parties, the Democrats on the left and the Republicans on the right in general terms, well, we all understand that the future of the Supreme Court is at stake with every single nomination.

But the setup in this case comes down to this. You have an incumbent President of the United States, Donald J. Trump, and right now a Republican majority in the United States Senate. And this is a Supreme Court seat that has been roughly the most liberal in the last several decades of American history. By the way, this seat was not always that way. Ruth Bader Ginsburg took the seat that was open after the retirement of Justice Byron White, who had been appointed to the Supreme Court by President John F. Kennedy in 1962, and Byron White turned out to be more conservative than the Democrats had expected. But that wasn’t the case when it came to Ruth Bader Ginsburg. She was never more conservative than those who nominated her expected.

So here’s the bottom line. In the final weeks of the 2020 American presidential election and the general election that will include about a third of the Senate, the Republicans have an opportunity for a Republican president to nominate and a Republican majority in the Senate to confirm a justice to the seat that had been held by Justice Ruth Bader Ginsburg in a way that would change the fundamental composition of the Supreme Court in a more conservative direction. That is to say, that it wouldn’t just be a conservative replacing a conservative or a liberal replacing a liberal, there’s the opportunity here for a conservative to replace a liberal, and that means that conservatives are excited and liberals are terrified by the prospect.

And you’re going to see both political alignments in the United States square off in what will become an epic battle. According to family members, Ruth Bader Ginsburg had indicated that amongst her final wishes, indeed the only final wish that was articulated, is that she would be succeeded by someone who would be nominated by a newly installed president. But as understandable as that is, the dying wishes of Supreme Court justices do not factor politically in what will happen. And in this context, there is virtually no doubt that President Trump will make a nomination. And in this context, there is virtually no doubt that the majority, the Republican majority in the Senate, will move forward.

And if there could be any doubt about that, it was erased just a matter of a little more than an hour ago when the Office of Senate Majority Leader Mitch McConnell of Kentucky, himself up for reelection in the November election, announced that the Senate would move forward in dealing with any nominee that should be handed down by President Trump. In his statement released tonight, Senator McConnell said, “In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite party president’s Supreme Court nominee in a presidential election year.”

Senator McConnell, the Majority Leader, continues, “By contrast, Americans reelected our majority in 2016 and expanded it in 2018, because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again,” said Majority Leader McConnell, “we will keep our promise.” The last line: “President Trump’s nominee will receive a vote on the floor of the United States Senate.”

So here we are on Friday night, and already we’re talking about this, because it has become inevitable. The news cycle is now a matter of seconds, not a matter of days. And even as the nation will be stepping back to consider the life and legacy of Justice Ruth Bader Ginsburg, and even as there will be a great deal of press attention, almost overwhelming press attention, to this in coming days and hours and even weeks, the reality is that the political process never goes to sleep in this kind of context.

And regardless of what they are saying or not saying in public, both sides are very much at work. On the Republican side, every single Republican member of the United States Senate, and especially Republican members of the Judiciary Committee, are put on notice that Republican voters are about to find out if they are who they said they were when they ran for election on the Republican ticket. There will be no Republican forgiveness to United States senators who do not support the nominee handed down by President Trump in coming days and weeks and who will not move forward expeditiously towards the confirmation of that nominee.

And truth be known, both party leadership structures already have in place strategies for exactly how they will act and what they will do and what they will say in coming days and weeks, even in coming months in this process. No one on either side is going to leave anything to chance. There is no avoiding the reality that this is going to be an epic battle for the future of the Supreme Court in the middle of an epic battle for the United States presidency. The battle for the White House and the battle for the Supreme Court have never in our nation’s history been so conjoined and so undeniable, so upfront, and so central.

The Bible says that man, and that means woman also of course, knows not his time. And mortality is never more apparent than when the entire conversation of the nation and our understanding of the future of this nation and the Supreme Court as one of its central institutions turns on the news of the death of a single individual dying in her home this evening in Washington, D.C. As Christians, we speak rightly of our sympathy with those who now grieve, and we cannot separate that concern and that sympathy from our understanding of the gospel.

And furthermore, as we’re thinking about mortality, the turning points of history, and the issues that are at stake, we come to recognize that we must respect and honor anyone who has given such devotion in the service of our country. But as Christians, we understand that we not only respect that kind of commitment, we have to evaluate the exercise of stewardship, and that’s where conservative Christians have been in such longstanding disagreement with the late Justice Ruth Bader Ginsburg.

Christians understand the importance of the one who would sit as judge, and as American Christians, we understand the incredible stewardship and power that is invested in a justice of the United States Supreme Court.

The death of Justice Ruth Bader Ginsburg tonight underlines the importance of that stewardship, and thus our understanding of how much on this Friday night in September of 2020 is now before our nation and at stake.

There will be much more for us to consider by the time we come to Monday’s edition of The Briefing, but thank you for listening to this special edition, and I’ll meet you again on Monday for The Briefing.

R. Albert Mohler, Jr.

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