Ginsburg’s Career, Replacement Parallel Thurgood Marshall’s

Thurgood Marshall and Ruth Bader Ginsburg both became famous in legal circles as pioneering advocates long before becoming justices, and later helped anchor the Supreme Court’s liberal wing of their respective eras.

In death, Ginsburg, the second female justice, will have one more thing in common with Marshall, the nation’s first Black justice: being replaced with an ideological mirror-image who may wind up undoing much of what they fought for in their careers and on the court. Clarence Thomas replaced Marshall in 1991, and President Donald Trump has nominated Amy Coney Barrett to replace Ginsburg.

“Many admirers of her work say that she is to the women’s movement what former Supreme Court Justice Thurgood Marshall was to the movement for the rights of African-Americans,” President Bill Clinton said when he nominated Ginsburg to the high court bench in 1993.

Marshall invented the “go-slow” strategy for expanding civil rights protections to African-Americans after founding the NAACP’s Legal Defense Fund in the 1940s, said Robert Cohen, a history professor at New York University. That approach of not trying to accomplish everything all in one fell swoop, eventually led to the court’s unanimous ruling in Brown v. Board of Education.

In the 1970s, Ginsburg followed a similar approach to set the stage for gender equality as we know it today.

“Marshall invented something, and Ginsburg expanded it into another area of the law,” Cohen said.

But the parallels don’t end, or really even begin, there.

Marshall, who was denied admission to his home state law school at the University of Maryland due to his race, went on to serve on the federal appeals court in New York before becoming the nation’s first Black solicitor general and before being nominated to the Supreme Court by President Lyndon Johnson in 1967.

Ginsburg, who couldn’t get a prestigious clerkship or a law firm job despite a top-ranked Ivy League pedigree, co-founded the Women’s Rights Project at the ACLU and ascended to the Supreme Court after 13 years on the D.C. Circuit—often called the second most important U.S. court.

Embodiment of Equality

For liberals, seeing a historic Black or female justice replaced with equally diverse yet ideologically opposite successors makes the loss all the more painful.

To conservatives, it’s proof that those on the left aren’t really concerned with diversity, said Mike Davis of the conservative Article III Project. “What the Democrats really want are liberal judicial activists.”

In opposing Trump’s latest nominee, Democrats tip their hand on diversity, Davis said.

“Democrats pretend that they want more diversity on the federal bench, but they have voted in near-lockstep against President Trump’s women and minority judicial nominees,” said Davis, a former clerk to Justice Neil Gorsuch and chief counsel for nominations to then-Senate Judiciary Chairman Chuck Grassley (R-Iowa).

Ginsburg herself acknowledged that diverse Americans don’t always agree, said Carrie Severino of the conservative Judicial Crisis Network. “She just wanted to celebrate the role of women in the law in general,” said Severino, who clerked for Thomas.

Indeed, as a pathmaking advocate, Ginsburg sought to shatter stereotypes about women, said Elizabeth Slattery, of the libertarian public interest law firm Pacific Legal Foundation.

“She fought for equality for women as individuals, not as a group that thinks and acts the same,” Slattery said.

The fact that she may be replaced by a women who has a different judicial philosophy is really “the embodiment of Ginsburg’s project for equality,” she said.

‘Shallow Understanding’

But replacing Ginsburg with a woman with different ideology reinforces the idea that identity matters more than the substantive values that the individuals represent, said Berkeley law professor Bertrall Ross.

It isn’t important that a particular nominee be Black or white, or a woman or a man, Cohen said.

What’s important is the person’s experiences and how those experiences have shaped their views on civil rights and other issues that come before the justices, Cohen said.

A deliberative institution like the Supreme Court, should ideally reflect the different values, interests, and experiences of the American people, Ross said.

“When a president simply replaces a woman with a woman or an African American with an African American, it evidences a shallow understanding of the institution’s role and operation and what will be necessary to sustain the institution’s legitimacy,” Ross added.

Educational, Geographical Diversity

Moreover, Samuel Spital, of the NAACP Legal Defense & Educational Fund, said that it’s hypocritical for conservatives to suggest that Marshall’s and Ginsburg’s legacies can be respected by appointing a woman or an African-American.

A core animating principle of the conservative movement is to refuse to acknowledge “how race, how sex, how other aspects of someone’s identity shapes their experiences and limits their opportunities in our society,” Spital said.

There is a “deep tension” between conservatives asserting they “don’t see race, we don’t see sex, we don’t see other aspects of identity,” and then suggesting Marshall’s and Ginsburg’s legacies can be respected just by appointing another women or another Black man, regardless of whether that person shares the principles they fought for their entire careers, Spital said.

Slattery notes, however, that Barrett would bring a kind of diversity to the bench separate and apart from her gender.

While all of the current justices got their J.D.s from either Harvard or Yale, Barrett went to Notre Dame, bringing an educational diversity to the court that wouldn’t otherwise exist, Slattery said.

Moreover, while many of the sitting justices spent much of their prior careers inside the Beltway, Judge Barrett has spent much of her career in the Midwest, Slattery said.

Geographical diversity has come into play with Gorsuch, who has forcefully backed Native American rights on the Denver-based Tenth Circuit and on the Supreme Court.

“Decisions made by the federal government and the regulators have an outsized impact on the state and our ability to earn a living particularly in rural areas,” then-Republican Sen. Jeff Flake, a fifth generation Arizonan, said. “And I think judges from the west have a better understanding of that.”

—With assistance from Bloomberg’s Greg Stohr