Judge dread: the fight for Ruth Bader Ginsburg’s seat

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Hello and welcome to the Intelligence on Economist Radio. I'm your host Shashank Joshi, standing in for Jason Palmer, who will be back here tomorrow. Every weekday we provide you with a fresh perspective on the events that are shaping the world. Possession maybe nine tenths of the law, but that last tenth matters a great deal. If you don't own the title to your land, it's hard to unlock its value. And the absence of robust land rights in Africa has had baleful economic consequences. And Japan is famous for its slick and speedy bullet trains, which have carried 10 billion passengers over 50 years. But their slower provincial cousins have not fared so well, cutting off Japan's greying countryside from the rest of the country. But first, On Friday, u.s. supreme court justice ruth bader ginsburg died of cancer at the age of 87. A candlelit vigil was held the following day outside the Supreme Court. Justice Ginsburg was only the second woman appointed to the Supreme Court after being nominated by Bill Clinton in 1993.

I, Ruth Bader Ginsburg, do solemnly swear.

She was a champion of women's rights and later in life she achieved rock star status, especially among young women. Now her death has set the stage for a divisive battle to replace her on the court.

She was born in Brooklyn to an immigrant father. Her dad was from Odessa in Russia and to a first generation mother. She was Jewish.

John Fassman is the Economist's Washington correspondent.

And she was a trailblazer throughout her life. She was one of only nine women among 500 men at Harvard Law School. And when she arrived, Erwin Griswold, who was then the dean, asked the women in the class to stand up and justify taking a spot that could have gone to a man. She said the reason she took the spot is that it was important that she understood her husband's work. That would have made her husband Marty laugh. Marty was a tax attorney, well known in his own right. He pre deceased her, but they had a famously loving and productive and equal partnership. She had a relentless work ethic. In 25 years in the Supreme Court, she never missed a day. She survived four bouts of cancer before this fifth one killed her. It was only after she got sick that she called in by phone to oral arguments. I think people often have this idea that Supreme Court justices are sort of stentorian wizards ready to shout down a lawyer who they disagree with. Justice Ginsburg was not like that. She spoke very slowly and very deliberately, which mirrors, I think, how she wrote and how she argued and how she thought. She was meticulous. She was precise. She was not a showy justice. She came onto the court actually considered a moderate. There were a lot of people on the left who were upset when she was appointed because she was considered sort of too centrist. But as the court steadily moved rightward during her tenure, she has found herself the de facto leader of the Court's liberal wing.

John, she spent a long time on the court. What did she achieve?

Well, she was on the Supreme Court for 27 years, and before that was on the D.C. circuit Court of Appeals, which is widely considered the second most important court in America for 13. So she was a judge for 40 years. And I was age 60 when I was nominated, and some people thought I was too old for the job. Well, now I'm into my 27th, starting my 27th year on the court. So I'm one of the longest tenured justices. So if you worried about my age, it was unnecessary. Before that, she argued six cases before the Supreme Court, and she was involved with 30 more as the first director of the ACLU's Women's Rights Project. The first of those Supreme Court cases was in Reed v. Reed, for which she wrote a brief arguing against a law in Ohio that preferred men to women in naming executive estates. She won that case. In her first oral argument before the Supreme Court, she argued against a military policy that denied many husbands of officers the same housing and medical benefits that it automatically provided officers, wives. And the thinking was that women are somehow inherently more dependent on their husbands than husbands on their wives. Now, in that case, remember, she effectively represented the husband. She represented the family, but she represented that she was arguing in favor of the husband's benefits. And she often said that she was not arguing for women's rights. She was arguing for the constitutional equality of men and women.

Her death has come at a critical time in American politics. It's just six weeks away from the election. So what impact does that have?

Well, I think it's a little too early to say that definitively. It looks as though both sides are gearing up for battle, but they seem to be quietly circling each other in 2016, the Supreme Court is central to Donald Trump's success, I think, because there was an open seat in 2016, Justice Antonin Scalia died and Mitch McConnell, who was then the Senate Minority leader, rather than hold a hearing on Barack Obama's chosen replacement for Justice Scalia, who's Merrick Garland, he came up with a rationale disguised as a principle, which is that because an election was coming up, the seat should be held open so the voters could decide. Now, that had never been done before. It was clearly a power play. It was a live sort of issue for Republicans. It impelled, I think, a lot of them who otherwise would have held Donald Trump at arm's length to decide. They just had to vote for him this time. I think Donald Trump is hoping for a similar effect this time, but he also wants to get the seat filled as quickly as possible. For Democrats, donations have started pouring in. They have been pouring in all weekend. Democrats seem riled up by this. I think in their view, if Donald Trump manages to get a successor onto the court, this will be the second effectively stolen seat. Right. The first was Neil Gorsuch, who was given the seat that was held Open by Mitch McConnell. And the second would be whoever Donald Trump nominates to replace Justice Ginsburg, who gets the seat because Mitch McConnell did not follow the principle he set up in 2016.

John, do you think Senate Republicans have the numbers? Do they have the votes to get in Trump's nominee through before the election?

Well, this is the question on everyone's mind, right? So so far, Susan Collins and Lisa Murkowski, Republican senators from Maine and Alaska, have said that they will not vote for a replacement before November 3. They have said that the President who wins on November 3 should choose the replacement. Now, that only gets Democrats to 49 and they need 51 because in the case of a tie, Mike Pence cast the tie breaking vote. Lindsey Graham had previously said he would abide by Mitch McConnell's rule from 2016. He has now gone back on that, apparently because he's angry that Democrats didn't roll over for Brett Kavanaugh. Chuck Grassley, who's a senator from Iowa, has also previously spoken in favor of McConnell's precedent. I have a very hard time imagining that when push comes to shove, he'll stand by his word. And so there really is nothing the Democrats can do unless they can persuade two other Republicans to come join them.

And if they can't persuade those Republicans and tip the balance, what happens then? What are the consequences for the years ahead?

On American politics, It's clear that what McConnell did in 2016 was a tremendous violation of norms. I think it's not a good principle to uphold. I think that arguing that this is now how Supreme Court seats should be awarded, that in an election year you effectively have to hold the seat open until the end of the election, is a bad precedent. But I think there's a difference between saying Republicans should be consistent for the sake of consistency and Republicans should follow this principle because that's how court seats should be given out. Now, from the Democratic base, there's been a tremendous push to threaten Republicans with repercussions if Democrats retake the Senate and the presidency. And that includes making Puerto rico and Washington, D.C. states, which would effectively, at least in the near and medium term, give Democrats another four senators. People have also been talking about expanding the court. So the reason there are nine Supreme Court justices is not constitutional or legal. It's just a statute. So if they were minded and had a majority and had a president who would sign it into law, they could put 11 or 13 justices on the Supreme Court. The problem with that for Democrats, I think, is that it sort of shifts the terms of the debate that they are now winning. I think that the way Joe Biden has pitched this campaign is on the one hand, you have the sort of chaotic destructiveness of Donald Trump. On the other, you have Joe Biden, a calm, a known figure who will get us back to normal. If he comes out and endorses expanding the court or statehood for D.C. and Puerto Rico, which, to be clear, he has not done, he has actually opposed expanding the Supreme Court. But if he comes out, if Democrats threaten this, then the debate becomes a lot murkier. Then it becomes the radical change that, that Joe Biden wants to do, right? Taking us to 52 states and putting 13 people on Supreme Court against Donald Trump who will keep things as they are, I think that debate does not play out very well for Democrats.

John, thank you very much for your time.

Thank you. Always a pleasure.

For a lot more analysis like this, subscribe to the Economist. To find the best introductory offer wherever you are, just go to economist.com/intelligence offer.

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According to the World bank, one in three Africans, some 422 million people, are currently living below the global poverty line of less than $1.90 a day, making Africa the poorest continent on Earth. And one of the biggest barriers to alleviating that poverty is something that all developed countries take for granted. A secure system of land ownership rights. As much as 90% of rural land in Africa is not formally documented, and just 4% of African countries have mapped and titled the private land in their capital cities. The process for changing that will be a long and complicated one, but it could make a profound difference to prosperity.

If you cannot prove that you own your house or your farm, then you're less likely to invest in it and you're more likely to lose it. So if you look across countries that have gone from being poor to being rich, there's usually a strong association with having secure land rights in those stories, and that's why they matter.

John McDermott is our chief Africa correspondent and has been reporting on this topic for the Economist. Among those he spoke to was Louisa Cangiso.

She's speaking to Luisa Clarita Kangiso Originala from cape town.

She's 49 years old and lives in a South African township where she has a warehouse job.

I'm one of the people who've been helped by bitprop.

She was helped by a Netherlands based startup called Bitprop to establish her rights to the land she was living on, borrow money and then build a handful of small rental units behind her home. Louisa will split the income from these with Bitprop over the next 10 years until its share is paid back. But even now she makes more from the rentals than she does from her salary, giving her options she didn't have before.

They really changed my life, how they changed my life. I can take my children to further their studies. Even today, I'm still Speechless, really.

Africa is a continent of 54 countries and more than a billion people. But Louisa's story is, in some crude way, a microcosm, because until she was able to prove that she owned her property, the only asset that she had, her house, was essentially being undervalued. And now that she's been able to prove that title, it's worth more. And she can then pass on the wealth to a future generation, and that fuels social mobility from here on in. But Louise is in a minority. In much of South Africa, and certainly across the rest of the continent, most people do not have formal property rights.

And so give us a sense of the background of that. How did that come to be?

Any story of land rights in Africa has to at least begin in the colonial period, where colonists came to the continent and established, often violently, freehold systems for their people and their firms, but left large amounts of the rest of the continent untitled, essentially, and ruled indirectly through local chiefs, traditional leaders, but whose land was always subject to being grabbed by the colonists. And when the colonial era made way for the independence of African states, the system, in many ways was kept the same. Urban elites replaced white colonists in administrative positions, but the fact that the vast majority of the continent's territory remained untitled was kept in place. And that bifurcate system endures basically to this day.

And what does that mean for economies across Africa? What are the consequences of that ossification?

It's not good. Twenty years ago, a Peruvian economist by the name of Hernando de Soto called land that was untitled dead capital.

The day that they get titled, the day that they.

The businesses in their homes, the sewing.

Machines, the cotton gins, whatever it is they've got there, the car repair shop finally gets recognized, they can start expanding. They can start.

In other words, poor people were not getting the benefits from their potentially lucrative assets so long as it remained informal, off the books. And what that means in macro terms is that farms are less productive, so agricultural economies are less productive. So you have a situation where it's individually destructive, but also destructive for economies as a whole. And this is something that has only been underlined by the pandemic. As we've seen more and more people lose their homes and firms being reluctant to invest, in part because of their insecure property rights.

So given those very substantial costs, is anything being done to redress this?

The fact that African countries have a lot of informal property rights is hardly a new observation. And over the past three decades, often funded by the World bank and other donors, there's been Armies of clipboard warriors going out to try and map parcel and title land in these states. These efforts have become a bit more successful in recent years as technology such as aerial photography has become cheaper. But the issue has been that a narrow focus on handing out the kind of title deeds you might get when you buy a house in London or New York has not delivered the types of results that many people expected.

And why is that? Why haven't these efforts to tighten up title deeds made a difference?

Researchers in this field refer to something called the Africa effect, which is that compared to cases in Asia and Latin America, the impact of titling in African countries is far less pronounced, both in terms of how more secure people feel after receiving a title deed, but also in terms of things like agricultural productivity. And this Africa effect has definitely stymied a lot of the kind of the, the well intentioned reformers, especially in the last few years.

And what is it that explains that disparity between Africa and Latin America and Asia? Why is there such a gap in the effect of titling?

There's a few theories. One is that in Latin America and Asia, titling efforts came as part of a package of other land reforms that helped farmers plug into markets much more easily. Another, though, is that African states, African ruling parties, still play a huge role in the allocation of land, which of course is a great source of political and economic power. And this state landlordism, as one scholar calls it, really gets in the way and undermines the power of property rights to transform people's lives.

John, as you pointed out, Africa's a big place. Surely this isn't a problem everywhere.

No, and the experience varies widely across the continent. For the most part, Rwanda, especially in urban areas, has had success with its land titling program. But in places such as Ghana, Malawi, Namibia, Zambia and South Africa, where I live, there's still a toxic relationship between land state and the traditionally governed areas, which sees corruption especially undermine the quality of property rights that ordinary people should enjoy.

Thank you, John.

Thank you, Shashank.

Ladies and gentlemen, welcome to the Shinkansen.

Japan is famous for its Shinkansen bullet trains as well as commuter trains that are so punctual that you get a note if they make you late for work. But not all Japanese railway lines are equal.

So I visited Govira Station, which is located deep in the mountains of Shimane Prefecture in the western part of Japan. The train station looks like it has disappeared. The signs have faded, so they're not legible. The tracks are covered in moss and overground weeds. The Train station doesn't even appear on Google Maps.

Miki Kobayashi writes about Japan for the Economist and is based in Tokyo.

But there's a reason for that. Gobira Station was actually last used in the spring of 2018, when the local line closed after 88 years. The local line, or Sanko Sen in Japanese, was over 100 km long and went through six very picturesque towns and villages. The few locals that I spoke to seemed to really miss the Sanko Sen. But they also feel that closing down the railway was inevitable to a certain extent. It carried only around 80 passengers per km back in 2016, down from 450 passengers three decades before. Now buses have replaced the trains.

Japan is really known for its trains, isn't it? Is this happening to lots of them?

So Japan is world famous for its trains. The Shinkansen, or bullet trains in English, connect far flung corners, corners of the country. And two new stations were also added to Tokyo's railway network this year. One of these new train stations actually comes with cleaning robots and an automated convenience store. But this is strictly Tokyo. Outside of the city, rural areas face a similar fate to Gobira Station in the Sanko san, for example, 44 railway lines spanning over a thousand kilometers have been scrapped since 2000.

That sounds like a lot. What's behind this bonfire of the railways?

So one big reason is finance. Three quarters of local railway companies are unprofitable and are unfortunately operating in the red. And second is demographics. So population decline is especially acute in rural areas, and decrease in passengers means decline in revenue. Actually, this year, especially with COVID and young people moving out of Tokyo, it was the first time that people actually left the city. People always go into Tokyo. And in rural areas, a lot of these young people can't find good universities to go to or enough job opportunities, so they end up going to Tokyo, which is leading to this phenomenon of public transport not being used and being scrapped eventually.

Is the government doing anything to step in and help?

So to a certain extent, Japan's railways were actually privatized back in the late 1980s. And since then, failing train companies have been getting subsidies from the government. But these subsidies that they receive are about a quarter of what's needed to keep them afloat. Our new Prime Minister, Mr. Suga, is from Akita Prefecture, which is the prefecture that is the most depopulating, actually. But a few people that I spoke to, they mentioned how a lot of politicians aren't particularly interested in this issue, especially because it doesn't do anything for them career wise. They really don't end up doing much.

What's the future of transport in the countryside, do you think?

Well, it doesn't look too great. So the buses that replace Sanko Sen's trains are also very, very empty. I also rode the bus twice, and I was the only passenger both times. But what's worse is that it's not just public transport like buses and trains that's being sold scrapped. It could also lead to entire rural communities to disappear as well.

Miki, thank you for talking to us.

Thank you, Shashank.

That's it for this episode of the Info Intelligence. If you enjoyed listening, do tell others on Apple podcasts and you'll be back in Jason Palmer's hands tomorrow.