What the Loss of Ruth Bader Ginsburg Means for the Supreme Court

If President Trump gets to appoint a new Justice to the Court, the conservative takeover will last for a generation

By DAVID S. COHEN 

WASHINGTON, DC - AUGUST 30: Supreme Court Justice Ruth Bader Ginsburg, celebrating her 20th anniversary on the bench, is photographed in the West conference room at the U.S. Supreme Court in Washington, D.C., on Friday, August 30, 2013. (Photo by Nikki Kahn/The Washington Post via Getty Images)


This is hard. The country lost one of its all-time greats tonight. A woman who dedicated almost every second of her professional life to making this country better, more just, more equal. 

She worked until the very end. And on her death bed, she dictated to her granddaughter the following: “My most fervent wish is that I will not be replaced until a new president is installed.”

Why would she say this as her dying wish? 

Because she knew exactly what a Trump replacement Justice would mean — a conservative majority on the Supreme Court for decades; a rollback of women’s rights; the end of nationwide legal abortion; turning back the clock to the pre-civil rights era in anti-discrimination law; open season on election interference and voter suppression. 

The list could go on and on, but it boils down to one basic thing — a new Trump appointee would mean the Court will likely destroy everything Ruth Bader Ginsburg worked for in her lifetime.

Let’s start with the obvious — abortion. Earlier this summer, the Supreme Court voted to strike down a Louisiana abortion restriction by a vote of 5-4. But five Justices, including Chief Justice Roberts who had joined the Court’s four liberals (including Justice Ginsburg) in striking down the law, expressed serious doubts about protecting abortion in future cases. Both of President Trump’s appointments to the Court — Bret Kavanaugh and Neil Gorsuch — voted to uphold the law.

The Republicans have been salivating over replacing Ginsburg for just this reason — with a new Trump Justice who would presumably oppose abortion rights, there would be six votes against abortion on the Supreme Court. This would give wiggle room for one of those Justices, possibly Chief Justice Roberts, to defect on the ultimate issue of the fate of Roe v. Wade. 

It’s hard to imagine any other defections though — Justices Thomas and Alito are surefire votes against Roe. And in this summer’s case, Justice Gorsuch cast serious doubt on any abortion protective rulings, as did Justice Kavanaugh, despite what Senator Susan Collins says he told her during his confirmation hearings.

In other words, with a sixth conservative Justice on the Supreme Court, overturning Roe isn’t as certain as the sun rising in the east in the morning … but it’s pretty damn close.

Beyond abortion, a new Trump appointee would be devastating for civil rights. There would be a sixth vote for religious and moral exemptions from general laws, including anti-discrimination laws. There would be a sixth vote against protecting LGBT people under the Constitution. There would be a sixth vote against affirmative action. 

There would be a sixth vote for saying that sex discrimination under the Constitution isn’t protected because the authors of the Fourteenth Amendment were only thinking about race. These rulings would have vast impact for women, people of color, LGBT folks, people with disabilities, the elderly, the indigent, veterans, and more. And the impact would be in almost every walk of life — employment, housing, education, government services, just to name a few.

To be clear, none of these are as certain as Trump tweeting white supremacist memes. It’s possible that the two conservatives who joined the four liberals this summer to protect LGBT people under anti-discrimination law would continue to further LGBT rights, even with a new Trump appointee. But, it’s really hard to see that with a sixth conservative on the Court. 

It’s much more likely that a six-Justice conservative majority would either stick together on a reliable basis or have just one defector, providing a consistent conservative majority in almost every case.

And there’s more! Healthcare is also at stake. The Chief Justice has twice provided the fifth vote to uphold Obamacare at the Supreme Court. But the law’s fate is once again before the Court, with oral argument on a new challenge scheduled for November 10. 

If that case is heard with just eight Justices, the Chief joining the remaining three liberals would result in the law being struck down, because it would affirm the lower court ruling (which found the law unconstitutional). Or, the case will be re-scheduled and re-heard when there is the new Trump Justice, which would once again give the conservatives a likely majority to strike the law down, a conservative dream for years.

For those who remember the election of 2000, with the Supreme Court having to intervene in the notorious Bush v. Gore ruling, a new Trump Justice could tilt the Court in Trump’s favor come election season. With all the doubt the President is casting on the election already, barring a Biden landslide, many people think the outcome of the election could be determined by the Supreme Court.

When Ginsburg was on the Court, there was hope that Chief Justice Roberts would rise above partisanship and vote with the four liberals to protect the integrity of the election and thwart any Trump election shenanigans. 

But, if Ginsburg is replaced by a Trump conservative by the time election cases make their way to the Court, the Court would almost certainly rule in Trump’s favor, whatever the claims. Justices Thomas and Alito almost always tow the Republican party line, and three other Justices would owe their spot on the Court to Trump. 

It’s hard to imagine five votes for Trump wouldn’t be a foregone conclusion.

There are so many more issues at stake here — the environment, economic regulation, criminal justice protections, the death penalty. Basically every issue in American life eventually winds up before the Supreme Court. Make no mistake, before tonight, we had one of the most conservative Courts ever in this country’s history. But even with this ultra-conservative Court, there were still big liberal surprises this past year.

After Friday night, though, if President Trump gets to appoint a new Justice to the Court, liberal surprises will be another victim of the doom that is 2020. And given the age of the conservatives on the Court, it will be decades before liberals have hope to get any more surprises, let alone ever control the Court again.

Not all hope is lost though. As I’m writing this, Senators Murkowski and Collins have indicated they would not vote to confirm a Trump nominee unless he wins re-election. And Senator Grassley has previously indicated that he wouldn’t either. On the other hand, Senate Leader Mitch McConnell has put out a statement vowing to have a floor vote for a new Trump Justice.

So Justice Ginsburg’s dying wish is now in the hands of the small number of remaining Senate Republican “moderates.” If four of them join the 47 Democrats in opposing a Trump nominee, Justice Ginsburg will get her dying wish. If not, almost everything she worked for in her career is sure to be swept away in the coming years.

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