Your weekly source for analysis and insight from experts at the Brennan Center for Justice

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The Briefing

Justice Ruth Bader Ginsburg’s death is achingly painful

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for several reasons.

She was as important a force for constitutional change before she donned judicial robes as she was on the bench. Scholars of the Equal Rights Amendment, which would give equal rights to all Americans regardless of sex, note that so many of its original goals were met by the string of rulings Ginsburg won even as it was debated. She wrote extraordinarily important rulings on gender equality and workers’ rights, and for those who work on voting rights, her recent jurisprudence as a fierce voice for democracy has been inspiring.

She was a role model who meant a lot to a lot of people, especially Jews and Jewish women. (As Brennan Center Fellow Andrew Cohen notes

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, the justice passed as Rosh Hashanah began, when the proverbial Book of Life is said to be opened, giving her remarkable life and sudden death a fitting coda). Hers was the path of millions of once-scorned immigrants from exclusion to acceptance, and her story is a reminder of what the country can mean at its best — all too rarely, and for all too few, but an ideal to still be pursued.

And now, Ginsburg’s passing could trigger a full-on crisis for this country, the Supreme Court, and our democracy. As my colleague Alicia Bannon writes

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, if Senate Majority Leader Mitch McConnell follows through on his pledge that he will consider a nominee by President Trump before the election, it will be more than rank hypocrisy. It will be court packing, pure and simple. McConnell has tried to redefine his 2016 actions by suggesting the issue was that the Senate was controlled by a different party than the president. That’s absurd. There’s no historical precedent for any such rule.

The Supreme Court has, of course, always been a political institution, but if it’s going to retain its public legitimacy it can’t be seen simply as another wing of partisan politics. Packing the Supreme Court weeks before a presidential election isn’t another stress test for our institutions — it could break them. At the very least, it will rip the mask off any pretense that this isn’t about power. As I shared with CNN

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this weekend, if Trump jams through a nominee, there will be lots of momentum among Democrats to do something like add seats to the Court. Action leads to reaction.

No matter what happens next, our country is better because of Ruth Bader Ginsburg. May her memory be a blessing.


Democracy

How the Black Vote Became a Monolith

Near-unanimity is undeniably a persistent feature of Black voting behavior — not because it’s an innate characteristic of Black Americans, but because it’s a reaction to the racial polarization that has increasingly infected American politics. Once, Black citizens were a key swing vote, credited with electing Harry Truman in 1948, for example. In an eye opening essay, Theodore R. Johnson weaves together American history with his personal experience to demonstrate why Black Americans vote as a bloc: their rights are always on the ballot. “The existence of the Black electoral monolith is evidence of a critical defect not in Black America, but in the American practice of democracy,” he writes. “Black Americans are canaries in the democratic coal mine — the first to detect when the air is foul, signaling the danger that lies ahead.” // New York Times Magazine

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Accusations of Forced Sterilizations at ICE Facility Fit with Trump’s Poor Treatment of Immigrants

The whistleblower complaint alleging that a doctor at a U.S. Immigration and Customs Enforcement detention center has performed a high rate of nonconsensual hysterectomies on Spanish-speaking detainees fits into the Trump administration’s pattern of targeting immigrants with inhumane treatment. It also conjures up the disgraceful history of government sterilization programs that long targeted Black and brown people based on xenophobic and racist pseudoscience. Congress has a duty to investigate and, if true, hold those responsible accountable for these gross human rights abuses, write Izabela Tringali and Martha Kinsella. // Read More

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How Election Night 2020 Will Be Different

It may take days, if not weeks, to count an expected record number of mail-in votes this year. Experts are predicting that mail ballots could make up at least half of all votes cast — and mail ballots take longer to process and count than in-person ballots. Americans need to keep this in mind if the election’s results aren’t known on or immediately after Election Day. It’s more important for election officials to prioritize counting every single vote accurately over speed during this pandemic-plagued election season. // Read More

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The Dangerous Lesson Future Presidents Could Learn from Trump

The Justice Department is trying to replace Trump’s personal lawyers in his legal defense against a defamation lawsuit. It’s the latest example of how under Trump, so much of the federal government has been politicized on a level that goes far beyond the periodic abuses we’ve seen with past presidents. “Part of the problem is that the systemic damage that Trump has done by politicizing the government is profound and extensive, complicating the ability of many Americans to discern each of the remedies necessary to revitalize our democracy,” writes Brennan Center Fellow Zachary Roth. “Whether or not the next president has Trump’s ingrained authoritarian streak, he or she will likely see that they can use the vast power of the federal government to benefit themselves without paying much of a price.” // Read More

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Much Is at Stake in State Supreme Court Elections — Who’s Trying to Influence Them?

The presidential election may be first on voters’ minds this year, but under-the-radar judicial races will affect our democracy no matter what happens at the federal level. Across the country, one of every five seats on state high courts is on November’s ballot. With so many critically important judicial races happening across the country, Douglas Keith breaks down several key themes that will likely become apparent, including money flowing into battleground states where court majorities are up for grabs, national dark money playing an outsize role, a lack of racial and ethnic diversity on most supreme courts, and widespread calls for criminal justice reform. // Read More

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Justice

What It’s Going to Take to Fix Policing

“After 30 years in local law enforcement trying to reform it, I would have to frankly say no, we cannot reform our current system.” That’s the conclusion of Ronald Davis, former police chief and executive director of President Obama’s Task Force on 21st Century Policing. Davis also touches on calls for defunding the police, what community-driven policing looks like, and how reallocation of government funds can improve community-led public safety strategies. His solution to the crisis affecting American policing is straightforward: “We’re going to have to dismantle this thing all the way to the ground and rebuild it.” // Read More

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Constitution

Martial Law Explained

The concept of martial law has no established definition. The limited Supreme Court precedent is old, vague, and inconsistent, and no federal statute defines what the term actually means. As a result, the scope and limits of martial law are dangerously unclear. Joseph Nunn and Tim Lau examine the complicated and unsettled law surrounding martial law. // Read More

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Coming Up

VIRTUAL EVENT: The Fight to Vote

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Thursday, September 24 | 12:00 p.m.–1:00 p.m. EDT

Experts warn that Covid-19 will make it harder for millions of Americans to vote this November. But the public health crisis is hardly the only cause of this: intensified voter suppression efforts have been enacted over the past decade, creating barriers to the polls that often target people of color. In this virtual conversation, Emory University professor Dr. Carol Anderson and the Brennan Center’s Dr. Theodore Johnson will discuss how communities, activists, and organizations are leading the fight to protect the vote — and what’s at stake for American democracy. Political strategist and commentator Karen Finney will moderate. RSVP today

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VIRTUAL EVENT: Transformative Criminal Justice Reform: Where Do We Go from Here?

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Friday, September 25 | 12:00 p.m.–1:00 p.m. EDT

What’s next for criminal justice reform — and what will it take for the United States to truly grapple with its long history of racial injustice? Join Laura Arnold (cofounder of Arnold Ventures), Lauren-Brooke Eisen (director of the Brennan Center’s Justice Program), Rashad Robinson (president of Color Of Change), Topeka K. Sam (founder and executive director of The Ladies of Hope Ministries), Bruce Western (Bryce Professor of Sociology and Social Justice and codirector of Justice Lab at Columbia University), and Susan Chira (editor in chief of the Marshall Project), for a discussion about potential courses of action during a pivotal time — after months of renewed racial reckoning, amid a public health crisis that has disproportionately impacted Black and Latino Americans, and before a critical national election. RSVP today

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News

Myrna Pérez on barriers for Black absentee voters in North Carolina // FiveThirtyEight

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Yurij Rudensky on how a ballot initiative could dilute minority representation // St. Louis Post-Dispatch

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Michael Waldman on the myth of voter fraud // Spectrum News

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Wendy Weiser on how H.R. 1 and H.R. 4 could give elections a much needed reboot // Boston Globe

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Jennifer Weiss-Wolf on Justice Ginsburg and feminist barrier-breaking // Ms. Magazine

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Have an issue you'd like us to cover? Feedback on this newsletter? Email us at [email protected]


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The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize – and when necessary defend – our country’s systems of democracy and justice.

Brennan Center for Justice at NYU School of Law

120 Broadway, Suite 1750
New York, NY 10271
T 646 292 8310
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[email protected]

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