On the evening of Friday September 19, 2020, the nation learned of the passing of Supreme Court Justice Ruth Bader Ginsburg.  As the second woman in United States history to be appointed to the Supreme Court, Justice Ginsburg was quickly heralded for many things, including her status as a trailblazer, reputation as a great legal mind, and role as the leader of the more liberal wing of the court. 

As the nation mourns and many articles about her life and impact continue to be written, we also need to make sense of the meaning of this seat becoming vacant at this moment—less than two months before an election.  To do so, we must first take a step back to understand the Supreme Court in general and its role in U.S. politics.

CONTEXT:  THE COURT IN THE CONSTITUTION + IN PRACTICE
Of the three branches of government, the judicial branch receives the least attention in the Constitution.  If you were to read the Constitution’s actual text, you would see that the portion discussing the courts is much shorter and more vague than those dealing with the legislative and executive branches.

The writers of the Constitution wanted to reduce the likelihood that national government power would become too great or used for corrupt purposes.  They created three branches—legislative, executive, and judiciary—that have the ability to “check” and “balance” each other through a web of interconnecting roles and responsibilities.  One of these checks and balances is that the President and the Senate together determine who will become a justice on the Supreme Court.

The process begins with the President deciding who they want to officially nominate.  Next, the Senate considers the nomination.  For much of U.S. history, the vast majority of nominees of the president were easily confirmed because the President and their staff undertook a thorough review process and made sure their choice would be acceptable to the Senators who would vote to confirm them.  Supreme Court justices are part of a president’s long-lasting impact, and it can be seen as a harm to the President’s power if their nominee is not approved. In this way, they have an interest in selecting someone they believe will succeed in the process.  Once nominated, there is a hearing on the nominee that takes place in a specialized committee of the Senate- the Judiciary Committee- before a vote of the full Senate is called. 

In recent confirmation votes, our nation’s larger political divides have been reflected in these hearings—and the final vote.  Because of these divisions, the public’s sense of the importance of these confirmations has also gained greater significance.  The Supreme Court has always made decisions that fundamentally impact U.S society. But the Court’s role has heightened more as we increasingly ask it to decide on issues we are unable to find agreement upon among ourselves.

In short, the battle over filling the now vacant seat on the Supreme Court was going to be heated no matter what, but it is likely to get even more contentious for a few reasons:

GINSBURG’S SIGNIFICANCE
As one of four women to ever be named to the Supreme Court, Ruth Bader Ginsburg was by definition a standout.  Before she joined the court, she had gained a reputation as someone who successfully argued cases that improved gender equality.  Her role in achieving greater equality for women and others was also part of her service as a Supreme Court Justice.  She “represented” women in multiple ways.

Ginsburg also became a beloved icon to many.  In the past half-decade or so, she has been the subject of feature and documentary films, Saturday Night Live skits, books, not to mention a range of consumer items: tote bags buttons, mugs, and more.  Her impassioned followers may feel strongly that the seat she left behind on the court ought to go to someone who shares many of her characteristics that could continue her legacy.

In addition, Ginsburg played a significant role as she wrote a series of what are termed, “dissenting” opinions.  When the Supreme Court issues their legal decisions, they explain their reasoning.  Yet, it is rare that all of the justices agree.  Even those that vote the same way might do so for a different reason and want to explain that logic.  The Court tends to try to stick with past decision-making, and of course the majority’s decision is most often the one that gains people’s attention. But sometimes the dissents—the contrary opinions—can serve as the logic for future decisions if the Court makes a shift.  Ginsburg’s dissenting opinions, then, can be a way that her legacy is extended beyond her death.

ELECTION YEAR IMPACT
The fact that this is an election year means that suddenly the selection of a Supreme Court justice is pushed to the center of the contests for president and the Senate.  In 2016, this became a feature of that election as Senate Majority Leader Mitch McConnell (Republican of Kentucky) prevented President Obama’s nominee Merrick Garland from being officially considered for confirmation.  He argued that during an election year, it ought to be up to the next president to make the selection.  In the end, the delay meant that newly-elected President Trump was able to start off his presidency with a successful nomination of now-Supreme Court Justice Neil Gorsuch. 

Today, early reports are that McConnell has reversed his viewpoint, pledging to give a vote to President Trump’s nominee.  The President has also expressed his intention to make a nomination.  Joe Biden, the Democratic challenger for the presidency, has said that he believes that the country’s leaders should respect Ginsburg’s expressed wish to have the winner of the election make the nomination.  It remains to be seen what will happen (a great deal depends on the Republicans who are in the majority in the Senate).

Whether the decision is made now or after a new president’s inauguration, suddenly the stakes of the election are feeling higher for both sides.  We are likely to see this subject come up in the upcoming debates and become a frequent topic of political advertisements, fundraising requests, and political organizing in Washington DC and beyond.

WHO SITS ON “THE BENCH”
For most of U.S. history, the Supreme Court has been composed of nine justices (the Constitution does not set out a specific number).  Prior to Ginsburg’s passing, the court had more justices in its conservative bloc.  If President Trump is able to have a third successful selection, this is likely to sway the court even more definitively to the conservative side.  Justices of the Supreme Court have lifetime appointments, and so this is a decision that can have an impact for a generation or more. 

We are increasingly asking the Supreme Court to resolve the disputes we have as a nation. While there are limits to the Court’s power, who sits on the bench of the Court matters. These nine individuals interpret the meaning of the Constitution. The upcoming Supreme Court “docket” (cases it is set to hear) includes many policy issues that can affect the American people, ranging from the constitutionality of the Affordable Care Act’s individual mandate for health insurance, the prosecution of rapes in the military, matters of immigration, the sentencing of juveniles, and more. There could also arise a situation in which the Supreme Court must rule on some aspect of the election.

At the time of this writing, a great deal remains to be determined, and so the significance of Ginsburg’s passing is yet to be fully determined as well.  As with most of the topics discussed in this blog, this outcome is not a matter of fate.  The public’s response can affect what is done by those in positions of governmental power. 

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