There was a brief silence, and then a muffling sound, and then Ruth Bader Ginsburg’s voice came through clearly, on the scratchier side of her vocal spectrum but unmistakable. The justice was calling from her hospital bed, where she was being treated for a gallbladder infection, on the third day of the Supreme Court’s historic experiment in conference calling.
The pandemic had dragged the Court into at least the 20th century. In March, oral arguments had been postponed for the first time since the 1918 Spanish flu and, before that, 18th-century yellow-fever outbreaks. The justices have for decades refused any kind of live broadcast of their proceedings, leaving access to the elite or the longtime line-waiters. (“The day you see a camera coming into our courtroom, it is going to roll over my dead body,” said retired justice David H. Souter in 1996.) The risk, said Chief Justice John Roberts in 2011, was that cameras in the Court could lead to “grandstanding.” He wasn’t alone in his resistance, but there may not be a living justice more invested in the ceremonial distancing of the Court from the grubby world. An author of several books on the Supreme Court told me that Roberts once refused to authorize publication of a quite flattering photo of himself “in shirtsleeves at his computer,” the only justice to veto a pic from the official archive: “Too casual? Not dignified enough? Who knows.”
But by the first week of May, the Court could no longer hide behind its robes. Here was Roberts on the line, stoically calling on his colleagues in order of seniority, hurrying along when a justice accidentally forgot to unmute (Sonia Sotomayor, twice, and then Clarence Thomas) and ignoring the sound of a toilet flushing when it was Elena Kagan’s turn to speak (who? We may never know).
That Wednesday, the Court was hearing yet another case, at least the third, pitting birth-control coverage against the religious rights of employers to deny it. The case has the potential to bring more indignity upon the Court than an errant toilet flush. Like much of the Court’s Trump-era docket, it tests the institution’s tolerance for shifting goalposts and flimsy political rationales. Under Obamacare, almost all insurance plans were required to cover birth control, but which employers can opt out, and for what reasons, has been the subject of a fevered battle since the beginning, the scope of which the Trump administration happily expanded by allowing basically anyone to drop coverage for any reason. At stake in the two cases, Trump v. Pennsylvania and Little Sisters of the Poor v. Pennsylvania, is birth-control access for 75,000 to 125,000 Americans. The culture wars never left the Supreme Court, but some of the justices have at least tried to balance the competing interests and the law. From her sickbed at Washington, D.C.’s Johns Hopkins Hospital, the eldest justice came out swinging.
“You have just tossed entirely to the wind what Congress thought was essential, that is, that women be provided these services, with no hassle, no cost to them,” she said, referring to the long-contested part of the Affordable Care Act. “Instead, you are shifting the employer’s religious beliefs, the cost of that, on to these employees who do not share those religious beliefs.”
Nothing anyone else said next could sway Ginsburg from this unusually tart monologue. Each time it was her turn, she repeated a variation of it, in so many words — that the Trump administration was tossing (or throwing) the law to the winds. However famous she became for dissenting, she is typically more likely to try to flatter the lofty self-conception of the Court; a month earlier, Ginsburg had taken strategic care to note the “good faith” of her conservative colleagues as they forced Wisconsin voters to show up in person during a plague. Maybe it was the gallstone or the dreary, regurgitative cynicism represented by this particular case, but she seemed very much done with keeping up appearances that there was anything going on but bare-knuckle politics.
Politics, after all, was behind the perennial conservative claim, again before the Court, that Obama was forcing nuns to pay for abortion. It didn’t matter that the coverage was of contraception, not abortion, or that actual churches were exempt from the policy, and that nonprofits like the nursing homes run by the Little Sisters of the Poor were given the right to opt out of paying for it. The Little Sisters, in fact, has never actually had to offer contraceptive coverage to its employees, because the law doesn’t actually give the government authority over its type of insurance plan and a lower court said it didn’t have to comply anyway. “So the Little Sisters’ claim is actually moot here?” asked Sotomayor incredulously. Yup. Yet the justices who voted to hear its case apparently found the optics of coerced nuns irresistible.
Obama is long gone, and the lawyers who once argued for the opposition now are on the inside of the federal government. It’s easy to understand why the Trump administration — eager to placate the religious right and business owners months before the election, and laser-focused on undoing anything Obama did — might keep picking this fight. It’s less clear whether the Court should follow.
You could date the Court’s abandonment of any pretense of being a high-minded, neutral, and apolitical arbiter to years before Roberts arrived — Bush v. Gore comes to mind. But nothing in the modern era has stripped the Court down to a game of raw force more effectively than the humming partnership of Mitch McConnell and Donald Trump, who offered, in order, Scalia’s seat as a bargaining chip, the blunt promise of overturning of Roe v. Wade, the tremulous rage of Brett Kavanaugh at his confirmation hearings, and any number of youthful warriors to fill the lower courts. Roberts has tried to split the difference, rubber–stamping Trump’s Muslim ban but balking at the naked attempt to disenfranchise voters of color via the Census, and declaring in the face of Trump’s attacks on the judiciary, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
At the birth-control case, which has dragged on for years, Roberts still sounded like he hoped everyone could just get along. “Well, the problem is that neither side in this debate wants the accommodation to work,” he said, adding wanly, “Is it really the case that there is no way to resolve those differences?”
He sounded like a man of the past. Across the street from the emptied court, in carefully distanced seats in a Senate Judiciary Committee room, McConnell protégé and former Kavanaugh clerk Justin Walker was up for a promotion to the second-highest court in the land — the same D.C. circuit court that gave us Roberts, Ginsburg, Thomas, and Kavanaugh. Walker had been Kavanaugh’s defender to a wary Christian right and then his bulldog when the nomination came under attack. Just this past March, after Kavanaugh swore him in, Walker talked about the stakes of the judicial battle in religious terms. He said from the stage that his old boss was like Saint Paul, “hard-pressed on every side but not crushed, perplexed but not in despair, persecuted but not abandoned, struck down but not destroyed.” He added, “In Brett Kavanaugh’s America, we will not surrender while you wage war on our work, or our cause, or our hope, or our dream.” Walker was born in 1982, almost a half-century after Ginsburg, at that moment on her fourth hospitalization in 18 months. (She was discharged that night.) No matter who takes the presidency or the Senate in November, it was hard to escape the feeling that Walker’s America — or at least Walker’s Court, an unembarrassed, gloves-off power play — would be the future.
*This article appears in the May 11, 2020, issue of New York Magazine. Subscribe Now!
