Vacancy on the Supreme Court: What Could Happen Next

By Ankita Nandi | Published 09/28/2020

After a long battle with cancer, Supreme Court Justice Ruth Bader Ginsburg died on Friday, September 18, shocking the nation and creating chaos over her now vacant Supreme Court seat. With the U.S. Presidential election quickly approaching on November 3, citizens are demanding to know if President Trump or the winner of the election will provide a nominee to fill the vacant seat. The country is divided, as the Republicans demand to hold a vote for a new Justice, and Democrats call to wait for the election to decide.

Justice Ginsburg was known for her prolific feminist stances, including various pro-choice decisions as she demanded equal protection under the law for all genders. Despite her overall liberal stances during her time as a Justice, Ginsburg still maintained close friendships with her fellow Justices across the political spectrum. As a result, Ginsburg’s death was mourned by politicians across party lines, and the US flag at the White House was raised at half mast the day following her death. However, various individuals quickly moved on to considering Ginsburg’s replacement.

Tensions regarding the seat vacancy arose quickly following news of Ginsburg’s death, exemplified by U.S. Rep. Doug Collins (R-Ga.). Representative Collins tweeted, “RIP to the more than 30 million innocent babies that have been murdered during the decades that Ruth Bader Ginsburg defended pro-abortion laws. With @realDonaldTrump nominating a replacement that values human life, generations of unborn children have a chance to live.” Despite criticism for sharing his remarks so soon after Ginsburg’s death, Collins stood by his comments. And he is not the only politician pushing for President Trump to nominate a Supreme Court justice soon.

President Trump posted on his Twitter that he intends to announce his Supreme Court Nominee on Saturday at the White House. He is receiving support from GOP members including U.S. Sen. Ted Cruz (Texas) and Senate Majority Leader Mitch McConnell (Ky.). However, Democratic politicians including Sen. Amy Klobuchar (Minn.) and Presidential nominee Joe Biden are pushing for the winner of the election to nominate a Justice instead. Furthermore, McConnell’s support is raising questions regarding his refusal to hold a vote in the Senate in 2016 for President Obama’s Supreme Court nominee Merrick Garland.

In the last year of Obama’s second term as President, McConnell said that he would not hold a vote if Obama presented a Supreme Court nominee, saying although it is a president’s constitutional right to nominate a Supreme Court Justice, the Senate also has the constitutional right to consent. Following Justice Antonin Scalia’s death in February 2016, Obama nominated Merrick Garland as a replacement. However, standing by previous comments, McConnell did not hold a vote for Garland, and Scalia’s seat was filled by Neil Gorsuch months after the start of Trump’s term. Thus, given the proximity of RBG’s seat vacancy to the November election, there is uncertainty about the changes that could be faced with a new Supreme Court justice, and who would nominate said justice.

In order to understand the scope of the changes in policies due to the seat vacancy, professor emeritus Morgan Kousser was interviewed. Professor Kousser was known for teaching Law/PS/H 148 ab. The Supreme Court in U.S. History., has served as an expert witness or consultant in numerous voting rights cases, and is currently working on a book about judicial cases. When asked about the implications of a new Supreme Court justice, Professor Kousser emphasized the potential for the changes in policy with a third Trump appointee, the result of which is often termed a “Trump Supreme Court.”

As demonstrated by Representative Collins’ tweet, abortion would be one of the first issues addressed and contested. Roe v. Wade, the landmark 1973 Supreme Court case protecting a women’s right to abortion without excessive government restriction, has attracted attention for decades from Republicans and pro-life organizations. Although abortion is currently legal in all states, Professor Kousser said that if the Supreme Court ruled that a fetus is a person from the point of conception, abortion would be considered a depravation of life under the Due Process clause of the Fourteenth Amendment, and therefore could be criminalized throughout the country.

Despite the attention on abortion, Kousser said the first thing likely to be overturned would be the Afordable Care Act. A week after the election, there will be an oral argument for Texas v. California, a case that will decide the constitutionality of Obamacare. If no Supreme Court appointee is successfully confirmed before the argument, the decision is likely to be 4-4, thereby upholding the Fifth Circuit judges’ decision, eliminating Obamacare. However, should Obamacare be overturned, this would result in 20 to 40 million people being without healthcare, signifying just how many people that decision would impact.

As Professor Kousser explained, a “Trump Supreme Court” would go on to contest decisions made regarding climate change, Affirmative Action (specifically Grutter v. Bollinger (2003)), decisions concerning voting rights, and gun control. For instance, it is currently illegal in California to sell gun clips with more than 10 bullets or to sell semi-automatic weapons; a “Trump Supreme Court” would almost certainly reverse this decision. Professor Kousser summarized, “Almost anything that a Democratic administration, either in a state or nationally, would pass, would be overturned by a Trump Supreme Court.”

Regardless of the outcome of the election, Professor Kousser highlighted the potential impact on voting rights. He focused on two specific voting rights bills that have already been passed by the Democratically controlled U.S. House of Representatives: HR 1 and HR 4. HR 1 expands voting registration and voting access, allows for new redistricting commissions in all states, and puts restraints on campaign finances. HR 4 renews Section V of the Voting Rights Act and establishes new criteria for determining which states and political subdivisions must obtain preclearance before new election laws may be passed, which was originally struck down by Shelby County v. Holder (2013). With a “Trump Supreme Court,” both bills would likely be declared unconstitutional. Thus, Professor Kousser says that the new Supreme Court nominee will determine the attitude towards voting rights.
Regardless of the outcome of the upcoming election, as said by Professor Kousser, “the politics of the United States could shift to the left, but the policy of the United States, because of the control over the Supreme Court, and over District and Appeals Courts, could shift to the right.” Justice Ginsburg’s replacement will determine the course for policy in our country for years to come.

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