With the Death of Justice Ginsburg, the Hardest Year Gets Worse


Rosh Hashanah, the Jewish New Year, has another name: Yom HaDin, the day of judgment. Not “Judgment Day,” as in biblical end times, but a day for being judged – the idea is that the One True Judge is weighing our sins of the past year and court is in session.

In the words of the core U’netane Tokef prayer, God is deciding who shall live and who shall die, who by violence and who by plague, but – importantly – “repentence, prayer and tzedakah avert the severity of the  decree.” Tzedakah is often translated as charity, but its real meaning is “justice.” We are worthy of  mercy if we work to make the world a more just place.

Ruth Bader Ginsburg managed to avoid the severest degree to live a good life of 87 years – although if pursuit of justice assures longevity she should have made it to 120. If only. Her death Erev Rosh Hashanah not only leaves a void on the bench but allows for others to add to the turmoil of 2020 and the upcoming election.

It also leaves the distinct feelings that the principles of justice that she represented are more vulnerable than ever.

If that sounds alarmist, I go back to the 2013 decision by the Supreme Court to neuter key provisions of the Voting Rights Act. The court ruled 5-4 that the safeguards – or “preclearance” — put in place during the Civil Rights Era to protect the enfranchisement of Black voters were no longer needed – that the South had learned its lesson and historical discrimination against Black voters was a thing of the past.

As the current assault on voting rights has shown, the majority was tragically in error. From the Oval Office to the precinct level, leaders are working hard to deny Americans the vote, either by preemptively and dishonestly discrediting the idea of mail-in voting, intentionally hobbling the Postal Service’s ability to deliver and process ballots, or suing states that seek to streamline the system. Most of these measures, various courts have ruled, surgically target minority voters.

Ginsburg understood and anticipated this, and her dissent in the case was a judicial “J’accuse” that will stand with perhaps her greatest legacy: the advancement of gender equality under the law. Her dissent offered a history lesson, tracing the persistence of racism and disenfranchisement from Reconstruction to the present day. She invoked Bloody Sunday — the infamous attack on John Lewis and other peaceful protesters during their voting rights march from Selma to Montgomery. She paraphrased Martin Luther King Jr., saying “there had to be a steadfast national commitment to see the task through to completion.”

In the most famous line from the dissent – which has the sting and clarity of a Yiddish proverb – she 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.”

Her dissent is neither liberal nor conservative, it seems to me. It is essentially American in that it declares that checks and balances are supposed to guarantee that all Americans have the right to the most basic admission ticket of democracy – the right to vote. Republicans who work to suppress the vote may be acting in their own self-interest, but that doesn’t make them conservative – it makes them cheaters. Ginsburg insisted that there will always be cheaters, but that the Constitution was the mechanism for self-correction – for repentance, if you will.

The impulse to cheat – or at least connive – is seen in Senate Majority Leader Mitch McConnell’s shameless attempt to ram a nomination through the Senate before inauguration – a direct contradiction of the “principle” he invoked when blocking President Obama’s nomination of Merrick Garland in the last year of his presidency. One can only imagine the analogy Ginsberg might have drawn.

American Jews have long celebrated the United States as a second Promised Land, where representative democracy, the separation of church and state and equal protection ensured our ability to flourish as individuals and a community. The system relied on consensus and self-correction, guaranteed by three branches of government meant to counter the “tyranny” of any one branch. Reverence for the founding fathers assumes the “exceptionalism” of this system, but in recent years their vision has been exposed to be as fallible as they were: a legislature hobbled by partisanship and and a system of gerrymandering that discourages compromise; a judiciary packed with ideologues; an executive branch that regards dissent as disloyalty and precedent as inconvenience, and which lacks a counterbalance in Congress.

Ginsburg worked the levers of government to make this a better and more just country.

Ginsburg worked the levers of government to make this a better and more just country, whether she herself was arguing before the Supreme Court or inspiring legislation to address a structural injustice, as she did in her scathing, also famous, dissent in the Lilly Ledbetter equal pay case. Her death not only recalls an era when government worked, but may guarantee the ideological petrification of the high court for a generation.

Ginsburg’s death on the eve of Rosh Hashanah was a stunning blow, precisely because we knew it would lead to an assault on the principles of justice and fair play that she championed and embodied. For all its ominous imagery, the Days of Awe are essentially uplifting, in that they promise second chances and provide rituals of renewal. Ginsburg’s death immediately plunged us back into a grief that felt both personal and universal.

I celebrated Rosh Hashanah at a backyard minyan, one of many in my neighborhood. It was sweet, especially when we heard a cascade of shofar blasts coming from other backyards. But I earned a measure of solace from an unexpected place – not from the prayer book or a rabbi’s sermon, but from Scott Simon, who hosts NPR’s Weekend Edition. His commentary, connecting Ginsburg’s death to the holiday, is available online. Writes Simon: “Ruth Bader Ginsburg’s death is a loss. But she leaves in a season in which people are called to reflect on life and refresh their sense of purpose in the world. Her memory will be heard in the sound of the shofar this year, calling people to look above, and use their lives’ work to lift others.”

On Yom Kippur, many will pray for the strength to carry on that work.