Does Ruth Bader Ginsburg's death mean the end of the Supreme Court as we know it?
What Ginsburg's death means for the country, the election, and the Supreme Court
News of the death of Justice Ruth Bader Ginsburg was not necessarily a surprise – after all, she was 87 years old, had battled cancer multiple times, and had been hospitalized several times in the past few years. Still, her death rocked the American political (and cultural) landscape already in a tense state in the midst of the coronavirus pandemic, continued concerns over racial justice, and the impending presidential election.
I learned of Ginsburg’s death from my wife, who was searching for something on my phone when a colleague’s text message arrived. It was a moment and feeling I won’t soon forget, similar to the one when I learned of Justice Antonin Scalia’s (more surprising) death in February 2016. Now that I’ve had some time to process things, here are my thoughts on what Ginsburg’s death means for the country, the election, and the Supreme Court:
1) It is difficult to overestimate the influence that Ruth Bader Ginsburg had on American culture beyond the legal world. She was just the second woman to serve on the nation’s highest court, and the longest serving ever. She was probably the most famous Supreme Court justice in history, spawning articles about her fitness regimen, films and documentaries, and even memes. When I ask students in my introductory American Government and Politics course to name the justices they know, they can usually hit four or five, but Ginsburg was always the first. News of Ginsburg’s death has hit American culture in a way that the deaths of previous justices did not. Her stature, resilience, and genuine heart made her a widely admired figure, something unusual among Supreme Court justices.
2) Ginsburg’s death has rocked the 2020 presidential election. Sen. Mitch McConnell, who refused to consider President Obama’s nominee to the Supreme Court in the midst of the 2016 presidential election, released a statement following Ginsburg’s death saying, “President Trump’s nominee will receive a vote on the floor of the United States Senate.” President Trump has not yet said whether he will nominate a replacement, but he almost certainly will – there is reportedly already a short list of candidates in place. Not surprisingly, Joe Biden quickly said, "The voters should pick the president and the president should pick the justice for the Senate to consider."
This is the second consecutive election year to feature the death of a sitting Supreme Court justice. Just as Democratic voters may view turning out for Biden as a way to protect Ginsburg’s progressive vision for the country, the promise of cementing a conservative majority on the Supreme Court may be enough to bring wary or exhausted Republicans home to Trump.
3) The future of the Supreme Court is more unclear today than it was before Ginsburg’s death. Alexander Hamilton, writing in Federalist 78, said the Court’s power is found in its judgment, rendering it intrinsically weaker than the other branches of government. It must rely on the other branches to enforce its decisions. Similarly, political scientists regularly talk about the importance of the legitimacy of the Court. The public’s support for the Court helps insulate it from interference from the other branches, as doing so could be seen as an attack on the “least political” of the branches and therefore on the Constitution itself.
Some Democrats have already floated the idea of expanding the size of the Supreme Court (something that the Constitution empowers Congress to do) in response to the Senate’s refusal to consider Obama’s 2016 nominee. Should Trump replace the liberal icon Ginsburg with a young conservative, the balance of the Court would shift dramatically – there would only be three justices appointed by Democratic presidents, while Trump would have named three by himself. Talk about expanding the size of the Court would grow to deafening levels should Trump fill the vacancy before January’s inauguration.
Should Biden win the election (and Democrats hold the House and take the Senate) and the Senate confirms Trump’s nominee before Biden takes office, the temptation to eliminate the legislative filibuster and expand the size of the Supreme Court will be incredible. Some Democrats could balk at this, but it’s certainly possible. If that happens, the Court’s legitimacy will be weakened even more. And once Republicans take power back, expect similar (and perhaps stronger) retaliation.
Some point to the Robert Bork hearings as the beginning of the war over the Supreme Court. The vacancy created by Justice Ginsburg’s death, at this moment in American history, has the potential to escalate this war to catastrophic levels.