Following Justice Ruth Bader Ginsburg’s passing last week, there was barely time to consider her legal and human legacy before attention turned to the supercharged politics of a new Supreme Court appointment. President Trump immediately announced his intention to fill a seat quickly, and Republican senators seem to be falling into line, with just a couple of exceptions. Meanwhile, leading Democrats have warned that “nothing is off the table” should such a rushed confirmation proceed. Professor of Public Policy Maya Sen studies the intersection of politics and the judiciary. We asked her about the looming fight and its possible consequences.
Q: Your recent research has shown Supreme Court decisions were aligned with public opinion; what are the ramifications of a Republican-leaning court on that alignment?
President Trump is very likely to replace Ginsburg—who was very liberal—with a justice who is extremely conservative. This would move the ideological center of the court rightward, from John Roberts (who himself is conservative) to someone like Brett Kavanaugh or Neil Gorsuch, both of whom are far more conservative than the average American.
Given that Roberts was the pivotal fifth vote in a large number of cases this past year, this shift will mean that Roberts will no longer be essential to solidify a conservative majority coalition. We can therefore expect a larger number of more conservative outcomes from the court, which would bring it in increasing conflict with public opinion, which tends toward moderate.
Time will tell how that will play out and whether the court will lose public standing. Most people don't know a lot about the court, but that might change if they hand down big cases—for example, striking down the Affordable Care Act, or overturning Roe v. Wade, or ruling that use of affirmative action by institutions of higher education is unlawful.
Q: How would you describe the politics at play here compared with what happened in 2016?
Quite simply, the only thing that has changed are the parties in power. Today both the Senate and the White House are controlled by the same party (the Republican Party), while in 2016, power was divided, with a Democrat occupying the White House and the Republicans controlling the Senate. With Republicans in control of the Senate, it was straightforward for them to deny Merrick Garland a hearing while moving full steam ahead with Trump's replacement of Ginsburg.
Q: What are your thoughts about the constitutional fallout from the Democratic reaction to a swift appointment, including increasing the number of justices or term limits for the court?
To deny Merrick Garland a hearing in 2016 was a controversial move at the time, but Republicans didn't pay much of a price at the voting booth—they won the White House, held the U.S. Senate and the U.S. House of Representatives, and won additional state gubernatorial races.
Here, it is a bit harder to tell what will happen; Ginsburg was simply beloved among many on the left, and replacing her with a conservative appointment will be a bitter pill for liberals to swallow. On the other hand, Democratic senators tend to be more moderate, and Democratic presidential candidate Joe Biden is himself hardly a liberal firebrand. It's hard to see a Biden administration moving forward with a court expansion plan and moderate Senate Democrats such as Dianne Feinstein or Joe Manchin going along. Term limits seem like a more middle-of-the-road compromise, although I expect moderate Democrats to take a wait-and-see approach in the immediate future.
That said, my sense is that a swift confirmation will energize voters in the 2020 election on both ends of the spectrum—liberals (and perhaps particularly young women) will head to the polls out of anger and in honor of Ginsburg, while Trump's base will seek to reward his very impressive achievement of appointing three solid conservatives to the bench. In the end, it's likely that the two forces will mostly cancel out.
The best-case scenario is, I think, increased attention paid by the Democratic Party to the Supreme Court. The Republican Party has done an excellent job at conveying the importance of federal courts for policies that conservatives care about, such as abortion and religious freedoms; by contrast, up until Ginsburg's death, Biden had hardly mentioned the Supreme Court, and it was only mentioned in passing at the Democratic National Convention. In my view, this has been a mistake: the court has final say over politically important issues such as voting rights, LGBT rights, and reproductive freedoms, making it a key part of a progressive agenda.
People gather to mourn the death of Associate Justice Ruth Bader Ginsburg at the Supreme Court in Washington, D.C. Photo by Joshua Roberts
Faculty portrait by Martha Stewart