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The announcement of the death of Supreme Court Justice Ruth Bader Ginsburg on Friday sent a shock wave through the political world. Lawmakers, journalists and members of the public flooded social media with testimonies of what the longtime champion for equal rights had done for the country.
The conversation looking back on Ginsburg’s legacy was quickly accompanied by a forward-looking discussion about what her passing will mean for the future of America’s top court. Within hours, Republican Senate Majority Leader Mitch McConnell announced that the Senate would hold a vote on a nominee put forward by President Trump — a reversal of his controversial stance that left a Supreme Court seat vacant during the final year of Barack Obama’s presidency.
There are significant political and logistical hurdles that McConnell must clear to confirm Trump’s nominee with just 45 days left until the election. But there’s little Democrats can do to halt the process if Republicans, who hold a majority in the Senate, remain united. The nomination process will be a major flash point in the election, perhaps even more heated than the confirmation of Brett Kavanaugh in 2018. GOP leaders appear to be willing to invite that controversy if it means putting another conservative justice on the Supreme Court.
Why There’s Debate:
Replacing Ginsburg, one of the court’s four liberal justices, with a conservative in the vein of Kavanaugh or Trump’s other appointee, Neil Gorsuch, would represent one of the most significant ideological shifts on the Supreme Court in decades, legal experts say. Before Ginsburg’s death, the balance of power was split between the court’s four liberal justices and four staunch conservatives, with Chief Justice John Roberts — a conservative in his own right — often serving as the decisive swing vote.
A 6-3 majority creates space for conservatives to be much more aggressive in enacting their constitutional beliefs. This shift could have major implications for a long list of issues, including abortion, voting rights, health care, LGBTQ rights, gun rights and environmental policy. The newly appointed justice may also play a crucial role if the upcoming election is contested. A reliable bloc of conservative justices, who are appointed for life, could make it impossible for Democrats to enact their policy goals for decades to come.
Beyond the political implications, the vacancy created by Ginsburg’s death could lead to fundamental changes for the Supreme Court itself. Republicans rushing to confirm a third Trump justice could further erode the public’s faith in one of America’s most important institutions and create a crisis of legitimacy for the court, some experts argue. Some Democrats have signaled that they would respond by “packing” the court by adding several more justices to offset the influence of Trump’s appointees if they gain control of the Senate next year.
Trump has yet to indicate who he will nominate to fill Ginsburg’s seat or when that might happen. Once a nominee is named, the Senate can begin hearings ahead of a confirmation vote. The process doesn’t need to be completed before the election on Nov. 3. Even if Trump loses to Joe Biden and Democrats take back the Senate, Republicans will still have until Inauguration Day on Jan. 20 to confirm Trump’s nominee. The Supreme Court will carry on with eight justices until a new justice is confirmed.
This is one of the most important Supreme Court vacancies in modern U.S. history
“Should Trump pick Ginsburg’s replacement, however, the ideological shift rightward it represents would likely be the largest for a single Supreme Court seat since the conservative Clarence Thomas succeeded the liberal Thurgood Marshall nearly three decades ago.” — Russell Berman, Atlantic
A 6-3 conservative majority could rewrite laws on a long list of major issues
“The impact of this particular vacancy could ripple far beyond what takes place on Capitol Hill. The issues that surround the vacancy encompass the broader culture war that divides red and blue America, from abortion to marriage equality to health care to the very structure of government.” — Dan Balz, Washington Post
The balance of the court would shift to the right for a generation
“Ginsburg’s death has set up nothing short of a historic war for the future of the court – and American life under the law. Donald Trump and Republicans in the Senate are determined to replace Ginsburg with a conservative justice. Their doing so could decisively tilt the ideological balance of the court for a generation and would probably constitute the most lasting legacy of the Trump presidency.” — Tom McCarthy, Guardian
Democrats could retaliate by adding several seats to the court
“If the Democrats are unable to block Trump’s nominee, there is but one choice should Joe Biden win the White House and the Democrats take back a majority in the Senate: pack the Supreme Court.” — Elie Mystal, Nation
Another conservative justice would bring stability to the rule of law
“For all the Democrats’ hysteria about the purportedly imminent reversal of Roe v. Wade (that never happens) every time a conservative is appointed, the fact is that Republican judicial nominees are forces of stability who favor judicial restraint, enabling Americans to determine democratically how they wish to live. By contrast, the public rightly sees Democratic judicial nominees as forces of radical change, imposed by judicial fiat at the expense of democratic self-determination.” — Andrew C. McCarthy, National Review
A conservative majority will make it impossible for Democrats to enact their policies
“Even if Democrats were to control the White House and both chambers of Congress, there is no element of any progressive wish list that this Court will allow to stand. A solid 6-3 Republican majority … would gum up the works of government for a generation, at the very least.” — Jay Willis, The Appeal
The integrity of one of the country’s most important institutions is on the line
“If Trump and Republicans replace Ginsburg it will destroy the remaining public legitimacy of the Supreme Court. Full stop.” — Jonathan V. Last, Bulwark
The Affordable Care Act could soon be repealed
“The last time the Supreme Court considered the constitutionality of Obamacare, it affirmed it 5 to 4. This time, without Ginsburg, the outcome will be much less certain.” — Al Tompkins, Tampa Bay Times
A disputed election could lead to a constitutional crisis
“And imagine the horror should the presidential election result in a dispute, Bush v. Gore-style, that goes to the Supreme Court, with a brand-new justice, confirmed under these circumstances, casting the tiebreaking vote. It’s hard to say that American democracy could recover.” — Joshua A. Douglas, CNN
Protections for abortion rights could be repealed
“If a new justice, as part of a 6-3 conservative majority, leads to Roe’s overturning, abortion will return to being a state issue and at least half of all states will probably ban it outright. Another dozen will likely put additional restrictions on it. Millions of women will find it all but impossible to get abortions if this happens.” — Kevin Drum, Mother Jones
Environmental protections could be significantly rolled back
“Federal agencies are where the experts in the government are. They’re the ones who write all the actual rules and regulations that help keep the air clean, the water clean, help keep food safety. … If the conservatives figure out a way to really limit the power of federal agencies, then you would see a real sea change in how American government works and, you know, a real … a kind of constitutional move toward deregulation.” — New York Times writer Emily Bazelon to Slate
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Cover thumbnail photo: Reuters