The death of Justice Ruth Bader Ginsburg has sparked a titanic political fight that could shape US supreme court decisions on abortion rights, voting rights and other fundamental issues for a generation or more.
That fight could also determine the contours of American society for 30 or 40 years, given the central role the court plays in legislating on cultural, social and political questions.
The Senate confirmation battle to come will be a reminder of the influence the court wields within the US system of government and the impact it has on the lives of ordinary citizens.
Donald Trump has already appointed two supreme court justices – but both were conservatives replacing conservatives. If the president succeeds with a Ginsburg replacement – which on Saturday he pledged to begin “without delay” and which key Senate allies backed – it will fundamentally change the shape of the court, replacing a liberal with a conservative. This would deliver a handsome majority on the court and probably change American life in unprecedented ways.
The ability of the court to interpret legislation from abortion to voting rights and from racial segregation to LGBTQ issues means that a successful appointment would probably be Trump’s most lasting legacy. Supreme court justices serve open-ended terms, impacting the country decades after any president leaves the White House.
Over the last century the court has played a fundamental role in reshaping US society. In 1954, it ruled that school segregation was unconstitutional. In 1973, its Roe v Wade decision legalised abortion. In 2010, the court removed most restrictions on political spending by corporations. In 2013, it gutted voting rights protections in place since the civil rights era. In 2015, it made same-sex marriage legal.
My most fervent wish is that I will not be replaced until a new president is installed
Ruth Bader Ginsburg
Such are the ways the court impacts the lives of US citizens. It is why the battle for Ginsburg’s replacement represents such a totemic fight for the future of America.
The 87-year-old led the liberal wing of a court which, technically, is meant to be apolitical. John Roberts, the chief justice, said in 2018: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” But that principle has suffered years of erosion – if it ever held true.
Ginsburg’s death struck the 2020 presidential election, already described as the most important in a lifetime, like a lightning bolt, set to put the court at the centre of a category 5 hurricane of partisan brawling, political machinations – and profound uncertainty.
“I think the future is unwritten and anyone who tells you they know what’s going to happen is wrong,” said Chris Hayes, a host on MSNBC. “We are in utterly uncharted territory.”
The court is about to start a new term and can function with eight justices. But in the absence of Ginsburg, appointed by Bill Clinton in 1993, it has instantly been rendered more conservative.
Roberts has recently been the swing vote, usually siding with conservatives but sometimes with liberals, notably on decisions to uphold an important abortion precedent and protect so-called Dreamers (undocumented migrants brought to the US as children) from deportation. His influence may now be diminished.
A week after the election, the court is due to hear a third challenge to Barack Obama’s signature healthcare law and to consider the House of Representatives’ efforts to obtain secret grand jury materials from special counsel Robert Mueller’s Russia investigation.
It is also possible the court will be asked to rule on a disputed presidential election, just as it was in 2000 when it tilted 5-4 in favour of Republican George W Bush over Democrat Al Gore. Jim Sciutto of CNN tweeted: “A 5-3 conservative court may have some very big decisions to make about the upcoming election.”
Ginsburg’s empty seat will be the latest monumental struggle in a country shaken by the coronavirus pandemic and racial unrest. Like the bitterly divisive nomination of Justice Brett Kavanaugh in 2018, and like the election itself, both sides seem likely to portray victory for the other in existential terms.
Trump has frequently touted his appointments of two conservatives to the supreme court, and 200 judges to lower courts, to rally supporters on the campaign trail. Earlier this month, as in 2016, he unveiled a list of prospective supreme court nominees. Despite Ginsburg’s parting message – “My most fervent wish is that I will not be replaced until a new president is installed” – he is set to nominate one within days.
It will then be up to the Republican-controlled Senate to hold a confirmation hearing. On Friday night, Mitch McConnell, the majority leader, declared: “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
There was an outcry, accusing McConnell of hypocrisy. When the conservative Antonin Scalia died in February 2016, also an election year, McConnell refused to act on Barack Obama’s nomination of Merrick Garland. The seat remained vacant until after Trump’s victory.
McConnell argues this case is different because in 2016 the president was Democratic and the Senate Republican but now the same party controls both. His opposite number, Chuck Schumer, and the Democratic presidential nominee, Joe Biden, instantly rejected that view. So did Obama, writing in a Medium post that “a basic principle of the law – and of everyday fairness – is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment”.
On Saturday, Democratic senators including Biden’s vice-presidential pick, Kamala Harris, called on the chair of the Senate judiciary committee, Trump ally Lindsey Graham, to “state unequivocally and publicly that you will not consider any nominee to fill Justice Ginsburg’s seat until after the next president is inaugurated”.
Citing the Garland case, they reminded Graham he said then no president should nominate a justice in the last year of his term.
“There cannot be one set of rules for a Republican president and one set for a Democratic president,” the senators wrote.
In effect, Graham said that was indeed the case.
Citing as motivation a change of Senate rules on judicial appointments made by Democrats in 2013 – which did not apply to supreme court picks until Republicans needed it to in 2017, over Trump’s appointment of Neil Gorsuch – and the ferocious if unsuccessful opposition to Kavanaugh, Graham said: “I will support President Trump in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg.”
President Trump’s nominee will receive a vote on the floor of the United States Senate
McConnell will have to work at record speed to get a nominee through before an election just 45 days away. But Republicans could press on during the “lame duck” session in November and December, before the January inauguration – even if Trump has lost in a landslide. If a losing president – and potentially a Senate switched to the Democrats – oversees such a key appointment, furious public protest would seem likely.
Francis Boyle, a law professor at the University of Illinois, said: “From [Republicans’] perspective, this is the chance of a lifetime to turn the court to the right.
“If you have a look at the opinions coming down this term, several of them were five to four, waffling on both sides of the issue, but now you’re definitely going to have six to three. So I don’t I think the Republicans will pass this opportunity.”
McConnell is far from certain to get his way. Several Republican senators have said they do not think a supreme court justice should be confirmed so close to an election, and some – such as Susan Collins in Maine and Graham in South Carolina – are facing tough re-election fights.
In a statement on Saturday, Collins said that though Trump had “the constitutional authority to make the nomination”, the decision “should be made by the president who is elected on 3 November”.
Should McConnell succeed, the appointment will tilt the court to the right in its biggest ideological shift for half a century. Many progressives fear that could undo decades of advances in social justice. On Saturday, Trump said his nominee would “most likely” be a woman. Among favourites for the role is Amy Coney Barrett, a Chicago-based judge who is a strict Catholic.
But Curt Levey, president of the conservative advocacy group the Committee for Justice, insisted that a Trump appointment would not necessarily spell the end of Roe v Wade, the 1973 ruling that effectively legalised abortion nationwide.
“The Democrats have literally been saying that since the time that Sandra Day O’Connor was nominated [in 1981],” he said. “Every time there’s a Republican nomination for supreme court justice, no matter how moderate they are, the Democrats say Roe v Wade has never been in more danger and, so far, it’s not even turned out to be close to true.”
Levey added: “No matter who replaces Ginsburg, Roe v Wade is not going to be overturned. I’m not saying never in history will it be overturned, but we’re not one appointment away from Roe v Wade being overturned. So that’s just rhetoric. I don’t know if they believe it. Maybe they do.”
Others, however, warned that Roe v Wade has never been as vulnerable. Carl Tobias, Williams chair in law at the University of Richmond in Virginia, said: “It will look very bleak. They’ve whittled away at abortion ever since Roe v Wade but now I think they may well overturn it; certainly they will hollow it out even more than it is now so that almost any restrictions probably will pass muster with the supreme court with that kind of majority.
“They could even undo marriage equality, even though it would take an enormous lift to do that, it’s conceivable that could happen, or hollow that out too, restrict it as much as possible and leave it to the states or something of that sort.”
Voting rights could also be under threat, Tobias warned.
“As there’s a shrinking majority of old white people who support the Republican party, this will be the way they extend their power and that’s a real concern for many people.”