How RBG’s Death Could Change American Civil Rights

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The nomination of a new Supreme Court Judge in the US has sparked major debate.  

Some of the country’s human rights laws around issues like abortion and marriage equality could be under threat if another conservative judge is appointed. 

How is Ruth Bader Ginsberg’s death unravelling into potentially major political and ideological change for America, and could something like this ever happen in Australia? 

RBG was the second woman to ever be appointed to the US Supreme Court and she fought hard to change gender stereotypes in law, champion race, defend reproductive freedoms and support same sex marriage. 

We spoke about RBG’s legacy with Professor George Williams, a constitutional law expert at UNSW. 

George Williams: “Ruth Bader Ginsberg is a really remarkable person for just how much of an impact she’s had on the law and society. In her case it goes well beyond the law … Many judges, many lawyers change the law – bring about changes to commercial law or all sorts of things – but in her case, she changed society.” 

But her death could be the very undoing of all these things. 

Not only has America lost one of its feminist icons – they’ve also lost one of the few liberals sitting on the Supreme Court. 

Trump has already appointed two Supreme Court Justices during his presidency (Neil Gorsuch and Brett Kavanaugh who are both conservatives) and he’s now nominated a third by putting Judge Amy Coney Barrett forward to succeed RBG. 

There are a total of 9 federal judges in the US and these federal judgeships are lifetime appointments.  

Amy Coney Barrett: What Could Her Selection Mean? 

Well, Coney Barrett is another conservative (with ties to the anti-abortion movement)If she’s appointed, it would consolidate a conservative majority on the Supreme Court, and this could mean that a lot of big issues in America are on the line.  

Her appointment could seriously destabilise the policy environments around reproductive rights, the rights of immigrants, healthcare and criminal justice – all areas of the law which RBG fought extremely hard to reform. 

Not to mention the fact that the more judges Trump appoints, the more power he has as over the law. Which is probably why RBG’s literal dying wish was to not be replaced until a new president was elected in November. 

Could Something Like This Ever Happen In Australia’s High Court? 

GW: In the US it’s different. People are appointed specifically to change the direction of the court. They’re known as democrat or republican judges, and that adds a political layer that we don’t have. 

Australian High Court judgements are really important and the Judges who make them are really significant figuresbut fortunately just not as polarisedSo we haven’t had that action where an election campaign might have the appointment of a high court as being a singular issue.” 

Professor Williams pointed out that our judges don’t achieve the same public status as they do in the US, and this is because in Australia, they’re selected behind closed doors with no public involvement.  

GW: “People aren’t even aware often, that new High Court Judges are being chosen. We are in the midst of choosing two right now. 

Professor Williams says that although the US system is based on political-leaning bias, Australia’s system is still flawed. Technically anyone can be appointed without the public’s knowledge and this decision is made by the Prime Minister and the government of the day. 

GW: “Both the American system and the Australian system are flawed. The American system is flawed because it’s too politicisedand the Australian system is flawed because there’s not enough transparency and scrutiny. 

One good difference that Professor Williams believes in, is that the chances of dramatically stripping away marriage equality or abortion rights (which people are afraid might happen in America right now), are slim here in Australia. And that’s because our High Court doesn’t tend to flip from one side to the other that quickly.

The Takeaway 

Following the nomination of Amy Coney Barrett in the US, it seems that there are legitimate concerns about the future of various fundamental human rights which RBG fought so hard to protect. 

And while Australia is able to avoid partisanship at large, Professor Williams argues we still need more transparency around who the people are behind the highest levels of legal decision making in our country.