Unpacking Ruth Bader Ginsburg’s record on race and criminal justice

This week has been a gut punch. Already reeling from the implications of what the passing of Justice Ruth Bader Ginsburg means for the future of civil rights in America, we had to sit with the rage over the lack of charges in Breonna Taylor’s death.

But there were some moments of hope. Zendaya’s moving speech at the Emmys made us proud. Plus, recommendations: Rolling Stone’s new list of the “500 Greatest Albums of All Time” and, on Netflix, “Atlantique.”

CNN legal analyst Joan Biskupic joins this week’s culture conversation as we discuss Ginsburg’s legacy on race and criminal justice.

Q: Often, we hear about Ruth Bader Ginsburg as a feminist icon. Could you tell us a bit about some of the highlights from her career on race? We’re thinking of cases like Jackson v. Hobbs and Shelby County v. Holder.

Biskupic: Ruth Bader Ginsburg was known for her women’s rights emphasis, but in recent years she became the voice of broader civil rights, particularly after she became the senior justice on the left in 2010 and took control in assigning opinions for the liberal wing. Liberals were often in dissent on racial civil rights, and no decision demonstrates that more, or RBG’s sentiment more, than the 2013 Shelby County v. Holder.

In that case, the conservative Roberts majority invalidated a section of the 1965 Voting Rights Act that required states with a history of discrimination, mostly in the South, to pre-clear any proposed change in their election rules with federal officials. The majority said that the requirement was outdated and that things had changed in the South.

“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes,” Ginsburg responded, joined by her liberal colleagues, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”

She cited several examples of contemporary voter discrimination. In the case from Shelby County, Alabama, she highlighted “Alabama’s sorry history” of voting rights violations and reminded readers that that the state “is home to Selma, site of the ‘Bloody Sunday’ beatings of civil-rights demonstrators that served as the catalyst for the VRA’s enactment.” She then quoted Martin Luther King Jr., who had said, “The arc of the moral universe is long, but it bends toward justice.” And Ginsburg concluded: “History has proven King right. The sad irony of today’s decision lies in its utter failure to grasp why the Voting Rights Act has proven effective.”

Q: Where did Ginsburg stand on criminal justice?

Biskupic: On criminal cases, Ginsburg’s record is mixed. She was not a liberal in the mold of Justices William Brennan (1956-1990) or Thurgood Marshall (1967-1991), who were more inclined to side with criminal defendants against law enforcement and who opposed capital punishment. On today’s court, Justice Sonia Sotomayor is more reliably in favor of defendants’ rights.

Yet Ginsburg led the left as it voted against some of the Roberts Court’s strongest decisions cutting back on criminal-rights milestones of the 1960s and 1970s.

One recent case I will mention, in which RBG wrote alone, relates to concerns about police conduct. The 2018 case, District of Columbia v. Wesby, required the court to revisit its decision in Whren v. United States, which enhanced police power for traffic stops and found an officer’s motivation irrelevant when deciding whether a stop or arrest was lawful.

In the 2018 DC v. Wesby case, Justice Ginsburg wrote a solo concurrence saying, “The Court’s jurisprudence, I am concerned, sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection. … I would leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry.”

But I should emphasize that the 1996 Whren was unanimous, and no other justice joined Ginsburg’s concurrence in the 2018 Wesby.

Q: Any thoughts on what Ginsburg’s death might mean for these issues?

Biskupic: I do not expect any shift to the left in this area of the law, particularly now that Ginsburg would be succeeded by an appointee of President Donald Trump.

For further reading, check out professor and author Peniel Joseph’s take on “How to remember the ‘Notorious RBG,'” a piece in which he unpacks the justice’s Colin Kaepernick comments and the rest of her legacy in the context of today.

Around the office

For people across the country, one of this week’s defining feelings has been grief and anger.

On Wednesday, more than six months after Breonna Taylor was shot and killed in a flawed police raid, a grand jury indicted only one of the three officers involved on first-degree wanton endangerment charges.

In other words, no officer was charged directly with Taylor’s death.

“We lost a beautiful woman in Breonna,” NBA star LeBron James said on Thursday. “We want justice no matter how long it takes, even though it’s been so many days, so many hours, so many minutes for her family, for her community.”

CNN’s Madeline Holcombe, Steve Almasy and Dakin Andone reported on the outrage gripping the country.

“From Louisville to Los Angeles, Atlanta and New York, masses of people congregated to protest the decision. Police in Portland declared protests outside the justice center there a riot,” our colleagues wrote.

As Sadiqa Reynolds, the president and CEO of the Louisville Urban League, told them, “We somehow got our hopes up in this case. We wanted to believe the system would change.”

Worth another look: Zendaya’s moment at the Emmys

Why we’re excited: On Sunday, for her role on HBO’s “Euphoria,” 24-year-old Zendaya became the youngest Emmy winner for best lead actress in a drama.

But her history-making win was notable for another reason, too.

“I just want to say that there is hope in the young people out there,” Zendaya said, referring to Black Lives Matter protesters. “And I just want to say to all our peers out there doing the work in the streets: I see you, I admire you, I thank you.”

It was a quick comment packed with a lot of meaning.

Even as Zendaya was overcome with, well, euphoria over her award, she never lost sight of the fact that the world outside is wrestling with the very opposite.

Recommended for your eyes and ears

Brandon recommends: Rolling Stone’s ‘500 Greatest Albums of All Time’

Sometimes, it’s nice to pause for music that makes you happy, especially when reality is constantly making you feel queasy.

Rolling Stone’s new list of the “500 Greatest Albums of All Time” has a lot of music that makes me happy.

As Leah wrote in a piece earlier this week, the updated list has come a long way since its 2003 debut, which heavily featured rock music.

To me, what’s so thrilling about the new Rolling Stone canon is how prominently Black artists feature among its upper ranks — albums by Black artists fill four of the top 10 spots.

Of the new top albums, Lauryn Hill’s colossal 1998 record, “The Miseducation of Lauryn Hill,” which hovers at No. 10, is one of my absolute favorites. On it, the eminent emcee parses everything from motherhood to racial injustice to pride in one’s origins.

Hill grants herself, and Black women more generally, a kind of rarely seen complexity.

“This is a very sexist industry,” the singer told Essence magazine in 1998. “They’ll never throw the ‘genius’ title to a sister.”

In its own small way, the new Rolling Stone list feels like just the rejoinder to Hill’s comments that fans have been waiting for.

Leah recommends: “Atlantique,” directed by Mati Diop, on Netflix

In the first 30 minutes of “Atlantique,” a French film now on Netflix, Souleiman (Ibrahima Traoré) has left Dakar, Senegal, for Spain. He and his fellow workers are searching for better economic opportunities after a construction tycoon cheats them of their wages.

No one on his boat survives. But the camera doesn’t follow their migrant story, instead staying with Ada (Mame Bineta Sane), Souleiman’s lover, left seemingly alone. That is, until the men who left, including Souleiman, return as ghosts — terrorizing the construction tycoons who cheated them.

But it’s not the ghosts that spark the true terror in “Atlantique” — even with their glowing, pupil-less eyes and scratchy voices. The ghosts represent life lost, sure, but they also represent a reversal of power, as they eventually (spoiler alert) take back the money they’re owed. Some might argue that the ghosts represent hope.

It’s the economic hardships and the pain of love lost that do the real haunting in “Atlantique,” more than any ghost could.

As we approach October, and everywhere I turn is filled with Halloween decor, I look back on the last few months in shock at the number of loved ones we’ve lost in the US — to Covid-19, to racism — and at our own stark economic disparities. These things, like in “Atlantique,” are what has haunted me and many people I love these past few months. And looking ahead to Halloween, I think: What could be scarier than the world we are already in?