By BEN JEALOUS
People For the American Way
(TriceEdneyWire.com) – President Joe Biden is about to name the first Black woman ever nominated to the U.S. Supreme Court – in fact, he may have already done so by the time you read this. Based on the Black women President Biden has chosen to serve as federal judges, we know that the nominee will be brilliant. And we know she will be committed to a “justice for all” approach to the Constitution.
That commitment is supremely important to Americans right now. The court is currently controlled by a right-wing majority. They are overturning earlier rulings in order to elevate “states’ rights” over voting rights. They are using distorted interpretations of the First Amendment to sacrifice equality and opportunity. They are giving corporations greater power over our lives and giving the government less authority to protect us from corporate wrongdoing.
The damage being done by the Supreme Court and its three Trump-appointed justices is a brutal reminder that elections matter – and that judges continue to affect our lives long after the president who nominated them is gone.
The Trump majority also means that our new justice, whoever she is, is likely to spend a good chunk of time in the Court’s minority. She will be on the “losing” side of important decisions. But that doesn’t mean she is powerless. This nominee, like every Supreme Court nominee, is vitally important to our future.
Supreme Court justices who are not in the majority influence the Court in a number of ways. In the short term, they can influence their fellow justices with the power of their arguments. In some cases, they can try to lessen the damage caused by a bad decision by agreeing to support a more limited and less harmful ruling than the majority would reach on its own. Justice Sandra Day O’Connor recognized that, once saying, “At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.”
History tells us that the most important power of a justice in the minority may be their ability to use dissenting opinions to shape public opinion, move Congress to action, or provide a road map for future courts to reverse bad rulings.
The late Justice Ruth Bader Ginsburg knew how to use this power.
In 2007, the Court’s conservatives ruled against a woman who had been paid less than her male coworkers for 20 years. The indefensible ruling distorted and gutted the law protecting women against discrimination on the job. Ginsburg’s dissent made the injustice clear. And she declared that “the ball is in Congress’ court.” Congress accepted their responsibility to restore the protections; it was the first bill signed into law by President Obama.
Ginsburg wasn’t quite as successful with her dissent to the 2013 decision in which the Court’s right-wing majority ravaged the Voting Rights Act. Legislation to restore the protection of the Voting Rights Act has been repeatedly blocked in Congress. But the power of Ginsburg’s ideas persists. Her dissent included a description of what the court majority was doing that you didn’t need to be a lawyer to understand. Weakening the enforcement of voting rights laws because they were working to prevent discrimination was “like throwing away your umbrella in a rainstorm because you are not getting wet,” she said.
Dissents like that can help people understand what’s at stake. And they can inspire activists and attorneys to build on those ideas and work toward the day when they are embraced by a majority of the Court.
Before Thurgood Marshall became a Supreme Court justice, he was a civil rights lawyer challenging desegregation. When he was feeling discouraged, he would re-read Justice Harlan’s dissent in the 1896 ruling that approved “separate but equal” public schools. Eventually, Marshall and others would help convince the court to embrace Harlan’s view that “in view of the Constitution, in the eye of the law, there is in this country no superior dominant, ruling class of citizens … In respect of civil rights, all citizens are equal before the law.”
It is true that the Supreme Court’s right-wing justices will still have a 6-3 majority after our new Justice joins the Court. But numbers don’t tell the story. Her presence is not the only way she can and will make history.
Ben Jealous is the president of People For the American Way and the People For the American Way Foundation. He is a former president of the NAACP.