On Wednesday, President Joe Biden issued an executive order instructing the National Park Service to “highlight important figures and chapters in women’s history.” “Women and girls of all backgrounds have shaped our country’s history, from the ongoing fight for justice and equality to cutting-edge scientific advancements and artistic achievements,” the announcement read. “Yet these contributions have often been overlooked. We must do more to recognize the role of women and girls in America’s story, including through the Federal Government’s recognition and interpretation of historic and cultural sites.” In a time when American women are seeing their rights stripped away, it seems worthwhile on this last day of Women’s History Month to highlight the work of Supreme Court Justice Ruth Bader Ginsburg, who challenged the laws that barred women from jobs and denied them rights, eventually setting the country on a path to extend equal justice under law to women and LGBTQ Americans. Ginsburg was born in Brooklyn, New York, on March 15, 1933, in an era when laws, as well as the customs they protected, treated women differently than men. Joan Ruth Bader, who went by her middle name, was the second daughter in a middle-class Jewish family. She went to public schools, where she excelled, and won a full scholarship to Cornell. There she met Martin Ginsburg, and they married after she graduated. “What made Marty so overwhelmingly attractive to me was that he cared that I had a brain,” she later explained. Relocating to Fort Sill, Oklahoma, for her husband’s army service, Ginsburg scored high on the civil service exam but could find work only as a typist. When she got pregnant with their daughter, Jane, she lost her job. Two years later, the couple moved back east, where Marty had been admitted to Harvard Law School. Ginsburg was admitted the next year, one of 9 women in her class of more than 500 students; a dean asked her why she was “taking the place of a man.” She excelled, becoming the first woman on the prestigious Harvard Law Review. When her husband underwent surgery and radiation treatments for testicular cancer, she cared for him and their daughter while managing her studies and helping Marty with his. She rarely slept. After he graduated, Martin Ginsburg got a job in New York, and Ginsburg transferred to Columbia Law School, where she graduated at the top of her class. But in 1959, law firms weren’t hiring women, and judges didn’t want them as clerks either—especially mothers, who might be distracted by their “familial obligations.” Finally, her mentor, law professor Gerald Gunther, got her a clerkship by threatening Judge Edmund Palmieri that if he did not take her, Gunther would never send him a clerk again. After her clerkship and two years in Sweden, where laws about gender equality were far more advanced than in America, Ginsburg became one of America’s first female law professors. She worked first at Rutgers University—where she hid her pregnancy with her second child, James, until her contract was renewed—and then at Columbia Law School, where she was the first woman the school tenured. At Rutgers she began her bid to level the legal playing field between men and women, extending equal protection under the law to include gender. Knowing she had to appeal to male judges, she often picked male plaintiffs to establish the principle of gender equality. In 1971 she wrote the brief for Sally Reed in the case of Reed vs. Reed, when the Supreme Court decided that an Idaho law specifying that “males must be preferred to females” in appointing administrators of estates was unconstitutional. Chief Justice Warren Burger, who had been appointed by Richard Nixon, wrote: “To give a mandatory preference to members of either sex over members of the other…is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment” to the Constitution. In 1972, Ginsburg won the case of Moritz v. Commissioner. She argued that a law preventing a bachelor, Charles Moritz, from claiming a tax deduction for the care of his aged mother because the deduction could be claimed only by women, or by widowed or divorced men, was discriminatory. The United States Court of Appeals for the Tenth Circuit agreed, citing Reed v. Reed when it decided that discrimination on the basis of sex violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution. In that same year, Ginsburg founded the Women’s Rights Project at the American Civil Liberties Union (ACLU). Between 1973 and 1976, she argued six gender discrimination cases before the Supreme Court. She won five. The first time she appeared before the court, she quoted nineteenth-century abolitionist and women’s rights activist Sarah Grimké: “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.” Nominated to the Supreme Court by President Bill Clinton in 1993, she was confirmed by a vote of 96 to 3. Clinton called her “the Thurgood Marshall of gender-equality law.” In her 27 years on the Supreme Court, Ginsburg championed equal rights both from the majority and in dissent (which she would mark by wearing a sequined collar), including her angry dissent in 2006 in Ledbetter v. Goodyear Tire & Rubber when the plaintiff, Lilly Ledbetter, was denied decades of missing wages because the statute of limitations had already passed when she discovered she had been paid far less than the men with whom she worked. “The court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discrimination,” Ginsburg wrote. Congress went on to change the law, and the first bill President Barack Obama signed was the Lilly Ledbetter Fair Pay Act. In 2013, Ginsburg famously dissented from the majority in Shelby County v. Holder, the case that gutted the 1965 Voting Rights Act. The majority decided to remove the provision of the law that required states with histories of voter suppression to get federal approval before changing election laws, arguing that such preclearance was no longer necessary. Ginsburg wrote: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” As she predicted, after the decision, many states immediately began to restrict voting. Ginsburg’s dissent made her a cultural icon. Admirers called her “The Notorious R.B.G.” after the rapper The Notorious B.I.G., wore clothing with her image on it, dressed as her for Halloween, and bought RBG dolls and coloring books. In 2018 the hit documentary "RBG" told the story of her life, and as she aged, she became a fitness influencer for her relentless strength-training regimen. She was also known for her plain speaking. When asked when there would be enough women on the Supreme Court, for example, she answered: “[W]hen there are nine.” Ginsburg’s death on September 18, 2020, brought widespread mourning among those who saw her as a champion for equal rights for women, LGBTQ Americans, minorities, and those who believe the role of the government is to make sure that all Americans enjoy equal justice under law. Upon her passing, former secretary of state Hillary Clinton tweeted: “Justice Ginsburg paved the way for so many women, including me. There will never be another like her. Thank you RBG.” Just eight days after Ginsburg’s death, then-president Donald Trump nominated extremist Amy Coney Barrett to take her seat on the court, and then–Senate majority leader Mitch McConnell (R-KY) rushed her confirmation hearings so the Senate could confirm her before the 2020 presidential election. It did so on October 26, 2020. Barrett was a key vote on the June 2022 Dobbs v. Jackson Women’s Health Organization decision, the Supreme Court ruling that overturned the 1973 Roe v. Wade decision recognizing the constitutional right to abortion. Ginsburg often quoted Justice Louis Brandeis’s famous line, “The greatest menace to freedom is an inert people,” and she advised people to “fight for the things you care about, but do it in a way that will lead others to join you.” Setting an example for how to advance the principle of equality, she told the directors of the documentary RBG that she wanted to be remembered “[j]ust as someone who did whatever she could, with whatever limited talent she had, to move society along in the direction I would like it to be for my children and grandchildren.” — Notes: https://www.rollingstone.com/politics/politics-news/ruth-bader-ginsburg-dead-777835/ https://www.pbs.org/newshour/show/justice-ginsburg-enough-women-supreme-court You’re currently a free subscriber to Letters from an American. 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Sunday, March 31, 2024
March 31, 2024
The Week Ahead
This week there’s a lot on tap. There are four things in particular that I’ll be paying attention to:
The risk to the Judge and his family is consequential. So is the risk to the integrity of the trial. The DA writes: “potential trial witnesses and prospective jurors who are not currently the subject of defendant's invective will likely fear having themselves and their family members be subject to similar attacks. This fear is not hypothetical: in the course of preparing for trial, multiple potential witnesses have already expressed grave concerns to the People about their own safety and that of their family members should they appear as witnesses against defendant.” This rationale will inevitably cause the Judge to act if Trump keeps it up. In other words, it’s about more than the Judge and his daughter, although it’s important that they be protected. The problem with these situations is, it’s very difficult to assess when something truly bad is going to happen. No one could have predicted the attack on Paul Pelosi. And knowing the potential, if Trump didn’t want something horrible to happen, he would have stopped this long ago, or at least told his followers violence is never acceptable. The fact that he hasn’t tells you all you need to know. It’s hang Mike Pence all over again. And if you’re a witness or a juror, someone with no real long-term protection available, perhaps it’s easier just to do what Trump wants than to put your child or your spouse at risk. That, in a nutshell, is how authoritarians work after all. I had to look up contumacious in the last paragraph, so here it is, to spare you the work:
The most interesting part of this letter is its reference to the sanction for violating the order: criminal contempt. A court can treat willful disobedience of a lawful mandate as a criminal contempt, which means that if Trump knowingly, and with an intent to violate the order requires, runs afoul of the gag order, the Judge can hold him in criminal contempt.
New York law says contempt can be punished by a fine, not to exceed one thousand dollars, and/or by imprisonment, not to exceed thirty days, in the jail of the county where the court is sitting. Given the total failure of multi-million dollar fines to constrain Trump’s behavior, custody is the only sensible approach here. The decision about punishment is left to the Judge’s discretion, and when a contempt is committed in the immediate view and presence of the court, may be punished summarily. Although there’s a good argument that the Judge’s daughter isn’t included in the current order, the DA is giving the Judge the opportunity to clarify its scope, to perhaps expand it, and to admonish Trump about the consequences of attacks on, say, witnesses, if he goes there. Courts work on this “progressive discipline” type of approach, which is increasingly frustrating since Trump takes advantage of it at every step. But it’s starting to look like he’s just about out of rope.
With trial only two weeks away, Trump is showing increasing signs of desperation, including an Easter Sunday ALL CAPS social media spree. Don’t be surprised if he takes more steps, like his “new”motion to recuse the Judge. It’s new because he filed one about a year ago for more or less the same reasons. The Judge ruled against him, and that’s not the type of motion he can appeal immediately (the type of interlocutory appeal ahead of trial we’ve been seeing for issues like immunity). He can put that on the list of issues on appeal if there is a conviction. So Trump will try to argue new grounds to recuse, to avoid that procedural barrier to advancing his arguments for recusal. But the Judge sought advice from an ethics office that advises judges about conflicts before he ruled on the last motion, and it seems unlikely he’ll be persuaded by this type of blatant delay tactic. This is a Fani Willis style political attack, not something with legal force. Also be prepared for more delay tactics this week—Trump will try to bootstrap the immunity argument on appeal in the Supreme Court here; but of course, this case is based on conduct Trump engaged in before he was president, although checks were written after he assumed office. But this is purely personal conduct. There are also the time-honored strategies of the desperate: getting sick or finding a sick or dying family member and firing your lawyers. What happens if Trump fires his lawyers? This can be a difficult one because defendants are entitled to counsel of their choosing, and lawyers are entitled to sufficient time to prepare. But Trump has a lot of lawyers on his team and the Judge has to be prepared for this one. Trump would have to argue a significant issue has developed with his lawyers before the Judge would agree to let them out of the case, and it’s going to be difficult to do that with all of them. The Judge could tell him to go ahead with the remaining lawyers, because if Trump does this at the eleventh hour, it’s going to look manufactured. But it’s still an issue the Judge has to be careful about to avoid problems on appeal, and so far, Judge Merchan has shown himself to be a careful, meticulous jurist.
We discussed this request when the Judge first issued it in this post, all the way down at the bottom. The Judge issued this order in lieu of ruling on Trump’s request to dismiss the case under the Presidential Records Act. Instead, she seems to be telling the parties she’s going to decide it applies, but ask them to give her alternative jury instructions for two different situations, depending on how she decides it applies. In the first scenario, it’s up to the jury to decide whether each classified document was magically morphed into a personal item by Trump before he left the White House. In the second scenario, it’s all up to Trump. If he testifies or somehow adduces evidence at trial he designated the records he’s charged with retaining as personal, no one, not even the jury, can second guess him. Cannon doesn’t say it in her order, but that can only mean the charges would be due to be dismissed. This is nuts—it’s up to the Judge to decide in the first instance whether the Presidential Records Act applies at all here. Juries resolve factual disputes. It’s up to the Judge to decide what the law says. And there is literally no authority that suggests that the Presidential Records Act somehow means you can’t prosecute someone who mishandles National Defense information. The Judge should have dismissed Trump’s motion out of hand, and if she had granted it, the government could have taken an appeal. That’s the heart of the problem here, as I’ve discussed before. By kicking the can down the road to trial, she’s setting up a scenario where she could rule in Trump’s favor and dismiss the case after a jury was sworn in. And at that point, the government couldn’t appeal. That’s because of double jeopardy. The government can’t try a defendant twice on the same charges, so if Judge Cannon were to dismiss the case after trial started, the government couldn’t appeal her because they couldn’t retry the case even if they won. So, it will be incumbent upon Jack Smith to deal with this one head on, now. It’s not clear what the fate of the obstruction charges would be in this scenario. They should be able to stand on their own—obstruction doesn’t require an underlying offense. But given Canon’s decidedly unusual views about the law, Jack Smith will need to be on guard against the risk that this particular Judge might do something completely unwarranted once the case is in front of the jury. It’s going to be a full week. Trump also has motions pending in the Fulton County case and a rally set in Green Bay, Wisconsin on Tuesday. The Green Bay Sweep was what now-jailed Trump crony Peter Navarro called the coup plot. You’d think someone in the campaign might have thought that wasn’t the perfect place for the candidate to go, but this is Trump world. In Enid, Oklahoma, population 50,000, there will be a recall vote for a white nationalist elected to the city council last year. Before the election, Judd Blevins was confronted by local citizens with a picture of him holding a tiki torch in Charlottesville, Virginia, the night before the 2017 “Unite the Right” rally. He avoided them and was elected two weeks later. Voters in the ward that elected Blevins knew about his background as an Iraq War veteran and blue-collar worker, but apparently his white nationalist views eluded them. Outraged citizens succeeded in getting a recall vote set for this Tuesday. Blevins’ challenger in the recall election is also a Republican, although the race itself is non-partisan. The number of registered voters in Enid favors Republicans over Democrats by 4-1.
The two grandmothers, best friends, who originally confronted Blevins also pushed for the recall vote. One of them, Nancy Presnall, said about Tuesday’s vote, “This isn’t a Republican-Democrat thing. It’s a Nazi and not-Nazi thing.” We’re in this together, Joyce You're currently a free subscriber to Civil Discourse with Joyce Vance . For the full experience, upgrade your subscription.
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