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Op-Ed

Ruth Bader Ginsburg’s death has far-reaching implications for US democracy

US Supreme Court Justice Ruth Bader Ginsburg poses for photographers during a group photo session at the Supreme Court in Washington, DC on Friday 03 March 2006. (Photo: EPA/MATTHEW CAVANAUGH)

One does not need to be a rocket scientist to work out what happens next in a country already sitting on a ticking time bomb of multiple tensions. Depending on how things actually turn out, the shape and the next chapter of the West’s history could be significantly affected.

That Judge Ruth Bader Ginsburg of the Supreme Court of the United States of America was a consequential figure in the expansion of constitutional rights in that country is beyond question. The revered judge died from cancer-related complications on Friday 18 September. She was 87. 

Apart from beginning a titanic political battle over her replacement, her death will have materially changed the medium- to long-term calculations of geopolitical strategists in the world’s biggest capitals.

National Public Radio (NPR) reported that a few days before her death, Ginsburg dictated a short statement to her granddaughter Clara Spera: “My most fervent wish is that I will not be replaced until a new president is installed.” 

Her final wish is not without context. A Trump nominee for the court is guaranteed to be someone whose ideological bent rhymes mostly with white right-wing America that is currently pushing against a growing tide of greater inclusiveness in the wake of the Black Lives Matter movement. There is also growing recognition of issues such as the suppression of African-American voters. 

So why would the US’s allies and rivals care about Ginsburg’s death and who replaces her? The answer is complex but worth exploring. 

As the world’s most dominant military and economic superpower, the continued strength or weakness of the United States matters. For its allies, it means an effective bulwark against Russia’s expansion of its geopolitical influence, especially its attacks on the credibility of the liberal democratic system. This has seen the Kremlin being accused of meddling in the electoral processes of its traditional rivals such as the US in 2016, 2018 and 2020, the UK’s Brexit referendum and the French and German elections, among others. 

For the US’s rivals such as Russia and China, it means more space to carry out their own expansion, which is not just economic or military, but a world-view that is in contrast to the liberal democratic order that has dominated the world since the fall of the Berlin Wall. 

The last three and half years of the Trump administration have seen several critical developments that have serious geopolitical implications, and will worsen if Trump is re-elected. His re-election depends as much on the wishes of US voters in November as it does on the composition of the Supreme Court. 

The first development is that Donald Trump and “Trumpism” have had a devastating influence on US political institutions in that country’s modern history. Not only has the Republican Party become a cult-worshipping movement for the incumbent, Trump has also effectively neutered the US’s famously independent prosecutors. He has also fired a slew of inspectors-general (the equivalents of the Public Protector in South Africa) for daring to hold his appointees accountable. This has created a climate of fear among professional civil servants, and impunity among political appointees.  

No country whose institutions have been gutted is able to prosper, regardless of the depth of its scientific and economic talents. The rule of law is paramount to the adequate functioning of institutions, which in turn are supposed to oversee social and economic order. The US has been failing at both for decades, but that failure accelerated during the last few years of Obama’s second term as Republicans used their congressional majority to ensure he could get nothing done. 

An institutionally weak and distracted United States is less effective as an ally, more vulnerable to its rivals and, more importantly, means Nato, the EU, G7 and G20 have to develop new scenarios for their own continued survival, without the support of the US. Even worse is the possibility that the US could become a disruptive influence such as it has been under Trump at the UN and some of its agencies and treaties, such as the World Health Organisation, the International Criminal Court or the Paris Agreement, among others. 

The second development is more directly connected to Ginsburg and the role that the US Supreme Court has played in creating conditions under which the US political system will totally lose the trust of most of its citizens, precipitating social unrest previously thought unimaginable. 

Towards the end of January 2017, the Economist Intelligence Unit updated its Democracy Index to indicate that the United States no longer qualified as a fully fledged democracy because of an “erosion of public trust in political institutions”, and listed its status as “flawed”. This was before Trump even began wrecking the US government for his personal benefit. 

Although the US holds elections almost continuously, nearly half of its eligible voters don’t even vote in the presidential elections. The US has the lowest voter participation rate of any OECD country by far, and has, with the help of a conservative Supreme Court, allowed a situation in which the expansion of voting rights enabled by the Voting Rights Act of 1965 has effectively been reversed. 

The Voting Rights Act gave the federal government oversight over voting districts with a previous pattern of voter suppression. The result was that voter registration of African-Americans in southern US states increased from 31% to 73%, and the number of African-American officials elected nationwide jumped from fewer than 500 to more than 10,000. 

The Voting Rights Act was renewed in 2006 during the Bush administration, but in 2013 the US Supreme Court, by a five-to-four vote, overturned Congress’s 1965 formula for identifying districts to be subject to oversight, on the grounds that it had supposedly become “unnecessary” because of the progress made up to that point. In her dissenting judgment, Ginsburg likened that logic to a decision to fold away an umbrella during a rainstorm because one was not wet! 

Since then, voter suppression has been on steroids, to the benefit of Republicans. GOP-controlled states have rolled out a series of administrative and legislative decisions designed to prevent likely Democratic Party voters from participating in federal and state elections. Some of the measures are so egregious they put the likes of Zanu-PF to shame. 

The post-2013 voter suppression methods have had the same devastating impact as the voter exclusions in place between the abolition of slavery and 1965. Since many states now require a photo ID before an American can vote, many Hispanic and African-Americans are less likely to have a driving licence because of a fine imposed for non-renewal, and are less likely to possess a passport than white Americans. For good measure, Alabama closed its driving licence-issuing offices in counties with large African-American populations.  

When civil rights organisations complained, the state reopened those offices – but for just one day a month. Texas kept such offices open in a fraction of its counties, forcing voters to travel long distances that take hours, just to get an ID document with their photograph on it. Unlike South Africa, the photo ID is not standard issue.

Some weeks ago, the Trump-appointed head of the US Postal Service, Louis DeJoy, took an inexplicable decision to remove mail drop-boxes in thousands of neighbourhoods likely to vote for Democratic Party candidates. He has since been instructed by a court to put them back, calling the move an attempt to influence the November elections. 

Together with the electoral college and the rest of the voting calculation formula, the outcomes of such measures are devastating for the credibility of any democratic system. In 2016, 2.9 million more Americans voted for Hillary Clinton than for Trump, yet the latter ended up being president. During the 2018 midterm elections, Senate Democrats secured a whopping 18 million more votes than Senate Republicans, and yet Republicans increased their Senate majority! 

Giving Trump the opportunity to place Ginsburg’s replacement on the US Supreme Court ahead of the elections is about maintaining an electoral formula that explicitly denies the federal majority the opportunity to be heard. At this moment in US history, with the Black Lives Matter movement being mainstream, and with racial discrimination occupying centre stage as a political issue, an even more conservative Supreme Court will further delegitimise an already-limping political system. 

Soon, the only thing standing between progress and the popular will of US voters will be the Federal Bench, now packed with conservative appointees. Ginsburg’s seat therefore becomes central. In recent times, the Bush-appointed Chief Justice John Roberts has on more than one occasion sided with the liberal wing in cases that threatened to push the US over the precipice. The most recent was the one in which Trump’s lawyers argued that he was above the law.  

With Ginsburg gone, and if Trump is able to replace her, Roberts’ casting opinions won’t matter any more, just like popular voter outcomes. The consequences of that guaranteed eventuality is what geopolitical strategists and hedge funds are building scenarios on. What is certainly not off the table is a heavily contested November elections outcome in which Trump refuses to leave office, and his Supreme Court sides with him despite a popular vote likely to go Joseph R Biden’s way. 

One does not need to be a rocket scientist to work out what happens next in a country already sitting on a ticking time bomb of multiple tensions. Depending on how things actually turn out, the shape and the next chapter of the West’s history could be significantly affected. 

For traditional US allies, four more years of Trump will be an effective decoupling from a cross-Atlantic partnership that has endured for 75 years, one that will result in a notable geopolitical rearrangement. His impulsive nature, propensity to launch scathing attacks and most worryingly, a deference to Vladimir Putin that is mind-boggling, and a preference for dictators are all factors the currently dominant but shaky liberal democratic order can hardly withstand.  

If there is to be such a rearrangement, then the president who prosecutes it should do so with a fresh mandate from the November elections, Ginsburg must have reasoned, and not one from four years ago. DM

Songezo Zibi is an author and former editor of Business Day.

 

 

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  • If requiring valid identification is considered voter oppression SA must be right up there.. This should be a non-issue.
    BTW, the SA ID is not standard issue, people also had to travel far distances to apply for it, so this is not a fair excuse.

    bot

  • The picture you paint is bleak but real. The negative effects of Trump’s presidency have yet to be fully realised as his ‘reign’ is not yet over. Like the Zuma era destroyed so many SA institutions – Trump is a self obsessed destructive force. The old belief that good will prevail seems shaky these days.