Just days after the death of Justice Ruth Bader Ginsburg and President Trump’s predictable but still shocking announcement that he will attempt to fill the Supreme Court vacancy before Election Day (after naming a nominee literally the day after her funeral), most of the commentary is understandably about the odds of that actually happening. But assuming for the sake of argument that Trump does get another SCOTUS nominee confirmed before November 3 or perhaps during a lame-duck session of Congress, what would it mean for upcoming cases and the future shape of the Court?
Most superficially, it would mean six of the nine members of the Court would have been nominated by Republican presidents: three by Trump (Neil Gorsuch, Brett Kavanaugh, and the new justice); two by George W. Bush (John Roberts and Samuel Alito); and one by George H.W. Bush (Clarence Thomas). This does not inherently mean a significantly more conservative Court; there is a long history of Republican presidents (dating back to Dwight D. Eisenhower, who put Earl Warren and William Brennan on the Court) appointing Supreme Court justices who turned out to be moderate or even liberal. But close conservative scrutiny of the judicial nominating process — which has blossomed in the Trump era into a transactional relationship whereby the president has virtually outsourced vetting of jurists to the Federalist Society — means that now more than ever we can assume that Trump’s future pick will be pleasing to the political and legal right.
If, as is also likely the case, Trump chooses someone relatively young in order to maximize his judicial legacy (e.g., 48-year-old Seventh Circuit judge Amy Coney Barrett, the current front-runner for the Ginsburg seat), that would mean three Trump justices who are 55 or younger at a time when the Court’s three remaining liberals are 82 (Stephen Breyer), 66 (Sonia Sotomayor), and 60 (Elena Kagan).
Now it’s possible (if unlikely) that Democrats will take over the White House and the Senate in January and decide to counteract a last-second Trump appointment by expanding the size of the Supreme Court and then filling new vacancies. Barring that contingency, or a new vacancy created by the death or retirement of one of the conservative justices in the not-so-distant future, a third Trump confirmation will change a narrow conservative edge to a comfortable majority. It could also rob Chief Justice John Roberts of the swing justice role he has recently assumed, in which his “institutionalist” determination to avoid the too-hasty reversal of time-honored liberal precedents (e.g., on abortion) or politically inflammatory judicial interventions (e.g., on health care) has frustrated many conservatives.
So we could see many 5-4 “liberal” decisions of the recent past become 5-4 or 6-3 conservative decisions (as Roberts abandons a now useless “balancing” role), while a more aggressive conservative posture emerges toward precedents the new majority has long privately (and sometimes publicly) deplored.
This new dynamic could become evident even before Justice Ginsburg’s seat on the bench has been filled. Here’s how a conservative shift could impact some key issues likely to come before the Court in the near future.
Without any doubt, eroding and ultimately overturning a federal constitutional right to an abortion is the most passionately held goal of the conservative legal movement and its powerful grassroots base in the anti-abortion movement. It is broadly accepted that in the latest Supreme Court case on the subject, June Medical Services LLC v. Russo, the chief justice sided with Ginsburg and the other liberals in striking down a Louisiana law designed to shut down abortion clinics because there was such a direct recent precedent in Whole Woman’s Health v. Hellerstedt, a 2016 decision involving a virtually identical Texas statute which the pre-Trump Court struck down. So Roberts could be waiting for a slightly different case to move toward an erosion of abortion rights that most observers believe he favors.
A conservative Ginsburg replacement might make Roberts’s position moot, or might encourage him to climb on the bandwagon and favor a clearer and more accelerated retrograde direction on abortion rights. Either way, filling the Ginsburg vacancy with someone hostile to Roe v. Wade, which will be the top priority for the administration’s vetters, would be a disaster for reproductive rights.
It’s even possible we could get a signal on the Supreme Court’s direction in this area before Ginsburg’s successor is confirmed. As Vox’s Ian Millhiser recently explained, there is a currently a petition before the Court to put a stay on a district court decision liberalizing access to medication abortion drugs so long as the COVID-19 pandemic makes personal visits to clinics dangerous. The Fourth Circuit Court of Appeals denied a stay, so it would take five Supreme Court votes to reimpose the more restrictive rules. Perhaps Roberts will provide that fifth vote, or perhaps he’ll decide not to send up flares this soon after Ginsburg’s death. But later if not sooner, a new conservative colleague for Roberts will open the door to bogus state “health” restrictions on abortion providers, if not a more frontal assault on Roe.
A test nearly as immediate as the abortion decision will come early in the Court’s October 2020 term (a week after Election Day, to be exact) as it hears oral arguments on California v. Texas, a case aimed at killing the Affordable Care Act. Julie Rovner explains how the case got to SCOTUS:
A coalition of Republican state attorneys general, led by Texas, argued in February 2018 that the Republican-backed tax-cut law of December 2017 had rendered the ACA unconstitutional by reducing to zero the ACA’s penalty for not having insurance. They based their argument on Chief Justice John Roberts’ 2012 conclusion that the ACA was valid, interpreting that penalty as a constitutionally appropriate tax …
[I]n December 2018, U.S. District Judge Reed O’Connor in Texas accepted the GOP argument and declared the law unconstitutional. In December 2019, a three-judge 5th Circuit appeals court panel in New Orleans agreed that without the penalty the requirement to buy insurance is unconstitutional.
As it happens, conservative as well as liberal legal analysts have dismissed the reasoning behind the Republican attorneys general’s argument. But as Rovner notes, Ginsburg’s death has created some real suspense:
[W]ithout Ginsburg, the case could wind up in a 4-4 tie, even if Roberts supports the law’s constitutionality. That could let the lower-court ruling stand, although it would not be binding on other courts outside the 5th Circuit.
The court could also put off the arguments or, if the Republican Senate replaces Ginsburg with another conservative justice before arguments are heard, Republicans could secure a 5-4 ruling against the law.
As my colleague Jonathan Chait has observed, nothing’s impossible:
In a post-Ginsburg world, there is no such thing as a right-wing legal theory so absurd that its chances of success can be dismissed out of hand. Now there is real legal drama.
If the Court does strike down Obamacare, perhaps a Democratic Congress and president could repair the damage or move beyond the ACA altogether. But in the interim, the health-care system would be in terrible disarray.
LGBTQ Rights and Religious Liberty
Part of the urgency many conservative Christians feel about this vacancy stems from the angry disappointment many felt when Trump’s first Supreme Court appointee, Neil Gorsuch, penned the majority opinion in Bostock v. Clayton County, a landmark decision that federal employment discrimination laws do indeed protect LGBTQ folk. But since Roberts voted with Gorsuch in this case, flipping one SCOTUS seat wouldn’t reverse it, even if the Court was inclined to ignore so recent a precedent.
But opponents of LGBTQ rights may take cheer from the likelihood that Ginsburg’s replacement will increase the conservative majority’s already strong inclination to expand both constitutional and statutory “religious liberty” rights to discriminate in situations where the believer (including even certain private corporations) is citing a faith principle or the prerogatives of a religious institution to justify discriminatory behavior.
Voting Rights and Election Integrity
As with religious liberty considerations, the conservative majority’s disdain for voting rights (e.g., the gutting of the Voting Rights Act in 2013 and the more recent refusal to disturb partisan gerrymandering in 2019) is likely to grow stronger with a third Trump justice — though the former problem could and perhaps would be repaired legislatively if Democrats retake the White House and the Senate.
A more fraught possibility if the Senate completes confirmation before Election Day is that the Court could burnish the shameful legacy of Bush v. Gore by intervening in a contested presidential contest this very year. With Trump threatening to challenge any results determined by mail ballots (a virtual certainty if Biden wins), and a slow count taking election disputes into a danger zone not long before the inauguration, a Supreme Court decision to “prevent a constitutional crisis” is not at all unfathomable. And in that circumstance, a 6-3 conservative majority on the Court could prove crucial.
Other Constitutional and Legal Issues
As the landscape of the next Supreme Court term grows firmer, and the timetable for a SCOTUS confirmation gets set in stone, the short-term and long-term implications of the Ginsburg vacancy and its precipitous filling will become clearer. Suffice it to say that if all goes as Trump and Mitch McConnell are planning it, the Court for the foreseeable future will become friendlier to big business, more deferential to conservative state legislatures, less deferential to liberal laws and regulations, and (so long as there is a Republican in the White House) will give a wide berth to executive power. Certain individual liberties (the right to stockpile weapons and “privacy rights” defined as corporate immunity from public disclosure) will expand as others (the rights of criminal defendants, the press, and most of all women) will contract. It’s an opportunity for the right to win even if their president loses in November.