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The American flag flies at half-staff outside the Supreme Court, September 19, 2020, after the death of Justice Ruth Bader Ginsburg, feminist icon and leader of the liberal wing of the Court.
Even before the sad news of the death of Justice Ruth Bader Ginsburg, the reality is that we will have a very conservative Supreme Court for many years to come—unless a Democratic Congress and president, should they be elected, respond by expanding the Court to counter Republican manipulation of judicial nominations. If Ginsburg is replaced by President Trump and Democrats can’t or won’t counter that manipulation, it will push the Court even further to the right and make it by far the most conservative Court since the 1930s, when the justices were regularly striking down New Deal legislation. How did we get here and what will it mean?
The composition of the current Court is a product of the historical accidents of when vacancies occurred and also deliberate manipulation of the confirmation process by Senate Republicans in 2016. Since 1960, there have been 28 years with a Democratic president and 32 years with a Republican president. But during this time, Democrats have appointed eight justices to the Court and Republicans have appointed 14. There has not been a chief justice appointed by a Democratic president since Fred Vinson died in 1953, and there has not been a majority of justices appointed by Democratic presidents since 1969.
Since 1988—and I pick that year because no current justice was appointed earlier than the George H.W. Bush presidency—there have been 16 years of Democratic presidents (Clinton and Obama) and 16 years of Republican presidents (Bush, Bush, and Trump). But the Republican presidents have nominated six justices, while the Democratic presidents have nominated four. On a Court that is so often divided 5-4, that makes all the difference.
In part, this is due to Senate Republicans blocking President Obama’s nomination of federal court of appeals Chief Judge Merrick Garland to the Supreme Court in 2016. After Justice Antonin Scalia died in February 2016, Obama quickly nominated Garland to replace him. Garland, by all accounts, is a moderate and by any measure is superbly qualified to be a justice. Senate Majority Leader Mitch McConnell said that there would be no hearings and no vote on Garland’s nomination, holding the seat open in case of a Republican victory in November—a full nine months after Obama had sent Garland’s nomination to the Senate. Prior to 2016, 24 times in American history there had been a vacancy in the last year of a president’s term. In 21 instances, the Senate confirmed the nominee; in three instances, there was no confirmation. But never before had the Senate said no hearings and no vote.
The only time a vacancy occurred this close to an election, however, Republican President Dwight Eisenhower nominated a Democrat, William Brennan, on October 16, 1956, as a recess appointment, leaving it to the victor of the November election to pick the new justice. After Eisenhower was re-elected that November, he submitted Brennan’s nomination to be a permanent justice, which the Senate confirmed.
McConnell’s 2016 strategy paid off in a big way. After taking office, President Trump nominated conservative federal court of appeals Judge Neil Gorsuch to replace Justice Scalia. The difference between Garland and Gorsuch in that seat has made all the difference in countless 5-4 cases. A year later, President Trump got to replace Justice Anthony Kennedy with Judge Brett Kavanaugh, who is more conservative than Kennedy on many issues.
A change in the ideological balance of the Court is unlikely to occur for the foreseeable future. Chief Justice Roberts is 65 years old, while Justice Clarence Thomas is 72 years old, Justice Samuel Alito is 70, Justice Gorsuch is 53, and Justice Kavanaugh is 55. It is easy to imagine these five justices being on the bench another decade or more.
One might wonder, then, what difference it will make to replace Ginsburg with another conservative justice when there are already five on the Court. In the long term, it can matter enormously. Conservative federal court of appeals Judge Amy Coney Barrett, the person said to be most likely to be nominated by Trump to replace Ginsburg, is 48 years old. She could be on the Court, and keep this seat in conservative hands, for another 40 years.
Even in the short term, replacing Ginsburg with a far-right justice can matter in many cases. Political scientists speak of the “median justice” in terms of ideology on the Court. Over the last 50 years, the median justice has gotten ever more conservative, as that designation moved from Lewis Powell to Sandra Day O’Connor to Anthony Kennedy to now John Roberts. To be sure, Roberts is conservative and has been his whole life. But he is not nearly as conservative as Thomas, Alito, Gorsuch, and Kavanaugh. It was Roberts who was the fifth vote in 2012 to uphold the Affordable Care Act, and in June of this year, it was Roberts who was the fifth vote in 5-4 decisions to strike down a Louisiana law restricting access to abortion and to invalidate President Trump’s rescission of the Deferred Action for Childhood Arrivals program.
If the Republicans, in an exercise of astounding hypocrisy, approve a Trump nominee before the inauguration, Democrats must be prepared to act.
If Ginsburg is replaced by someone like Gorsuch or Kavanaugh—and that is exactly what President Trump wants to do to energize his base going into the upcoming election—the median justice ideologically would be Brett Kavanaugh. It would mean not just six conservative justices, but five who are clearly much further to the right than the American people. Were Roberts to join the three more-liberal justices in forthcoming cases, it wouldn’t matter.
History shows that a Court well to the right of the populace is a recipe for disaster. When this occurred in the 20th century, the Court struck down the first child labor law passed by Congress and invalidated countless laws to protect workers and consumers. Facing the prospect of having the entire New Deal struck down, in 1937 President Franklin Roosevelt proposed to increase the size of the Supreme Court. Although that proposal was not enacted, it likely played a role in propelling one justice, Owen Roberts, to switch his vote to upholding New Deal programs. Retirements and deaths then let Roosevelt fill the Court with justices who upheld the laws that previously had been struck down.
I hope that four Republican senators will join the Democrats to keep this seat on the Supreme Court open until after the winner of the November 3 election is inaugurated on January 20, 2021. But if the Republicans, in an exercise of astounding hypocrisy, approve a Trump nominee before then, Democrats must be prepared to act. They must consider expanding the size of the Supreme Court to overcome how the Republicans manipulated the process to block Garland and confirm Trump’s nominee to succeed Ginsburg.
As I read Sen. Mitch McConnell’s statements immediately after Justice Ginsburg’s death that he would push the Senate to approve President Trump’s nominee to succeed her, I kept thinking of the words of Joseph Welch to Sen. Joseph McCarthy: “Have you no sense of decency, sir?” I think we know the answer to that when it comes to Mitch McConnell. We only can hope that there are four Republicans who do have a sense of decency and will not let this vacancy on the Supreme Court be filled before the inauguration.
