The passing of liberal legal icon Justice Ruth Bader Ginsberg—famously nicknamed the Notorious RBG—on September 18 has opened up a vacancy on the Supreme Court of the United States (SCOTUS) at a critical moment in US history. With what is already expected to be a rollercoaster of a general election just six weeks away, an enduring (and worsening) public health crisis eating away at the country’s economy, and large-scale demonstrations against racism and systemic discrimination engulfing the nation, Justice Ginsburg’s departure has set the stage for a bitter political fight whose result could potentially cement Donald Trump’s legacy and that of his far-right conservative supporters for the foreseeable future.
Before getting into the specifics, it’s important to first understand the significance of the US Supreme Court and its functions. Article III of the United States Constitution established the federal judiciary, and the first meeting of the court took place in 1790. Since then, the (now) nine justices—the number started at five, went up to 10, but was then fixed at nine—that sit on the highest court in the US with lifetime appointments deliberate and weigh in on crucial matters, often having the final say on issues ranging from disputes between the center and state governments, highly controversial laws, and appeals to delay executions.
They also make landmark decisions, and the impact of these weighs heavily on the American way of life. Some of these rulings have empowered women and given them the rights they deserve, helped protect the environment, and guaranteed a person’s right to expression. Others have strengthened racist laws, allowed unequal access to education, and implemented unfair electoral practices. The court also has the power to deem any law unconstitutional.
Given the nature of the powers vested in the institution, it is hardly surprising that filling a vacancy becomes a hotly contested matter. However, this time, the stakes are extremely high. Justice Ginsburg’s death has presented President Donald Trump with a rare opportunity to possibly tip the court into a long-elusive 6-3 conservative majority, which would shift the ideological balance of the court significantly towards the right for the first time in more than 50 years.
Prior to Justice Ginsburg’s death, the court was split between four liberals (Justices Stephen Breyer, Elena Kagan, Ruth Bader Ginsburg, and Sonia Sotomayor) and four conservatives (Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas), with Chief Justice John Roberts serving at the ideological center of the institution. This make-up meant that Justice Roberts could on his own help either side secure a majority opinion in key cases.
However, now, in the absence of Justice Ginsburg, if a conservative judge gets appointed to her seat, Roberts will lose this ability and give the swing vote to a right-leaning Justice. While this is a dream come true for the Republican party—because conservatives in such a scenario will completely dominate issues regarding healthcare, abortion, and even the result of the election, which Trump has repeatedly said will end up in the Supreme Court—there are increasing concerns among Democrats about the lasting impacts of a conservative court on the nation’s laws.
One of the biggest fears is that the new court majority could, in the long run significantly reshape laws on women’s reproductive rights as enshrined in the Roe v. Wade ruling. Republicans have long argued against the law, and Donald Trump has previously promised to appoint justices ready to overrule the legislation; this could be the moment of fundamental change in US society he has been hinting at. Other areas that could see an impact include those relating to the 2nd amendment, affirmative action, voting rights, LGBTQ rights, religious liberty claims, and environmental laws.
Concerns surrounding the future of such matters have been elevated after Trump announced on Saturday that he had picked Judge Amy Coney Barrett to replace Justice Ginsburg. Judge Barrett’s nomination was championed by hardline pro-life groups, and her academic and judicial records point to a worrying potential pullback from significant progress made on the issues mentioned above.
As a conservative Catholic and mother of seven, Barrett has called abortion “always immoral”, and though she has previously said that a woman’s right to choose would likely endure in some form, she has pointed to looking at the sources of funding for initiatives that promote such activities. This could mean that her presence on the court could potentially lead to financial cuts to groups like Planned Parenthood or stricter state laws on abortion, even if the court does not agree to completely overrule Roe v. Wade. Her views on religious liberties have also been met with skepticism since they have led to her opposing birth control mandates under national healthcare plans like Obamacare.
Given this background, it is worrying to note that the Supreme Court is set to once again consider the legality of the Affordable Care Act (ACA, also known as Obamacare) on November 10. The landmark healthcare law was the very first iteration of a framework of universal healthcare for all Americans and has sought to protect those with pre-existing conditions. The legislation has been consistently challenged by Republican-led states, who argue that the entire law became invalid and essentially unconstitutional when the previous Republican-led Congress reduced the penalty for remaining uninsured to zero but maintained its requirement that virtually all Americans have coverage. Judge Barrett has also been vocal about her criticisms of both the plan and the SCOTUS’ handling of it, arguing that the court had pushed the language of the law “beyond its plausible meaning to save the statute”. The ACA provides coverage to nearly 20 million Americans, and in the midst of a raging pandemic and skyrocketing unemployment, the enrollment rate for the program went up by 46% in July. Trump has repeatedly claimed that his administration would introduce an alternative to Obamacare but has not provided anything on this front.
A conservative court could also threaten the Obama-era Deferred Action for Childhood Arrivals (DACA) program, which protects more than 700,000 young people who were brought to the US illegally as children by allowing them to stay on and work in the country without being deported on a two-year renewable term. On June 18 of this year, in a 5-4 majority (which included all the liberal justices and Chief Justice Roberts) ruling, the Supreme Court said that the Trump administration could not push forward with its plans to terminate the program, stating that the government had not provided a “reasoned explanation for its action”. Trump reacted furiously to the decision, calling it “horrible and politically motivated” and said at the time that it only further highlighted the need for new Justices on the Supreme Court, vowing that he would “start this process all over again”. A 6-3 conservative majority could definitely allow Trump to do so and potentially lead to a result more aligned with his conservative interests.
There is no doubt that Trump and the Republican party will do everything in their power to seat Judge Barrett on the bench. Senate Majority Leader Mitch McConnell and other top GOP leaders have said that they would support moving forward with filling the vacancy before the election and have already set the date for the confirmation hearings to begin October 12. Other than the fact that it could be the much-needed spark to reenergize Trump’s reelection campaign (as he continues to lag behind his opponent Joe Biden in national polls), if Judge Barrett gets confirmed, it will give the President and his camp a political win that will not only outlive him but could also ensure enduring legal victories for Republicans. Given that nominations to the SCOTUS last for the Justices’ lifetimes, one thing is certain: no matter which way this battle ends, the result will have a long-lasting impact on America, and its people.
Appointing RBG’s Successor Could Be Trump’s Lasting Legacy
Justice Ginsburg’s passing has set the stage for a bitter political fight whose result could potentially cement Donald Trump’s legacy and that of his far-right conservative supporters for a long time.
September 29, 2020
SOURCE: SUPREME COURT OF THE UNITED STATES