The Supreme Court vacancy caused by Justice Ruth Bader Ginsburg’s death has the potential to shift the court even further to the right, all but guaranteeing a string of conservative rulings on abortion rights and ensuring the demise of Obamacare.
A move by President Donald Trump and Senate Majority Leader Mitch McConnell to quickly confirm a replacement for the liberal icon has the potential to cement a conservative majority on the court for a generation or more, even if Joe Biden wins the presidential election in November.
Adding a third Trump nominee to the high court could also go a long way to quieting Republicans’ increasing concern that Chief Justice John Roberts has proven to be an unreliable vote for conservatives and the Trump administration by siding with liberals in a handful of notable cases in recent years.
In June, Roberts joined liberals in a surprising, 5-4 decision rejecting Trump’s decision to end the Obama program protecting so-called Dreamers. While the chief justice still aligns with his Republican-appointed colleagues in most cases, he also voted with the court’s Democratic appointees last year in a 5-4 ruling that overturned the Trump administration’s move to add a citizenship question to the 2020 census.
The George W. Bush appointee has also voted with the court’s liberals in a series of emergency rulings rejecting challenges to state lockdown orders aimed at controlling the coronavirus pandemic.
“Roberts has not exactly been Trump’s friend,” said Curt Levey of the Committee for Justice, which supports conservative judicial appointees. “Roberts appears to be hostile to Trump.”
Ginsburg’s passing has already led liberal activists to resurface a controversial proposal that could mitigate the impact of any potential new Trump-appointed justice by adding at least two seats to the court, which briefly had 10 justices during the mid-1800s before settling in at the current maximum complement of nine justices.
The court’s size is set by law, not the Constitution, and can be changed by Congress at any time. However, doing so would likely require the Senate to abandon entirely its already-beleaguered filibuster rule.
Assuming a Biden win, such an expansion of the court could counteract any justice Trump may be able to add either in the coming weeks or in the lame-duck Senate session that follows the election. But one potentially crucial player in that scenario — Biden — is on record opposing any rejiggering of the court’s headcount.
“I would not get into court packing,” the Democratic nominee and former vice president said at a primary debate last October. “We had three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”
But Neal Katyal, an acting solicitor general under President Barack Obama, was less skeptical of such an approach.
"If they do this, the Democrats will be well within their rights to expand the Supreme Court," Katyal said on MSNBC. "They’ll be well within their rights to expand it to 13 or 15 or even 17 to nullify these games. ... Nobody should be playing games with the Supreme Court. If the Republicans do so, the Democrats will have weapons available to them."
The highest-profile case the justices are set to take up this fall is a broad, Trump administration-backed challenge to Obamacare, set to be argued one week after Election Day. With four liberals on the court, Roberts was seen as a potential swing justice to save the law, especially given his pivotal role in 2012 joining with the court’s Democratic appointees in a 5-4 decision that saved Obamacare’s individual mandate.
However, with Ginsburg gone, the landmark health care law seems imperiled. A tied vote at the high court would leave in place an appeals court decision striking down key portions of the statute.
If Biden wins, and enjoys Democratic control of both houses of Congress, he could seek to replace the Affordable Care Act with a new law intended to withstand legal challenge. Paradoxically, a rightward shift on the court might actually prompt passage of a more radical health care proposal, such as "Medicare For All," because those programs could be less vulnerable to legal challenge than the mandate-based approach underlying Obamacare.
A move by the court further in a conservative direction could also mean new restrictions on abortion rights, although it is not clear that replacing Ginsburg with a justice hostile to abortion rights would definitely lead to a decision overturning Roe v. Wade, the 1973 ruling guaranteeing women’s right to abortion.
Instead, such a shift would likely accelerate the general trend of the court permitting more government-imposed limits on the procedure. One case about efforts to limit access to abortion drugs is currently awaiting an emergency ruling from the court, while several others are in the pipeline. However, many analysts say that even an additional GOP-appointed justice is unlikely to produce a majority on the court to reverse Roe.
“It doesn’t bring you Roe v. Wade being overturned,” Levey said.
Whatever happens regarding a potential nominee, the court seems certain to be shorthanded in the coming weeks. That raises the prospect of tied, 4-4 rulings in a series of emergency applications the court is likely to receive related to the November election and adjustments related to the Covid-19 outbreak.
The court has often broken along ideological lines in election-related cases. If that pattern holds up, Ginsburg’s absence would have no effect since Republican appointees continue to hold their five-justice majority. But if Roberts were to waver in those cases and join the Democratic appointees, the court would be deadlocked.
In that situation, the rulings of lower appeals courts would stand. That could disadvantage Democrats and help Republicans, but the effect of Ginsburg’s death would likely be limited to circuits where GOP appointees outnumber Democratic ones on the appellate bench.
Legal observers are also bracing for a potential nightmare scenario: a shorthanded Supreme Court confronting potential political chaos if the November presidential election is extremely close or leads to protracted legal disputes.
It is even possible Republicans might succeed in confirming a nominee just before or just after the election, leading to rancorous recriminations from Democrats and dealing a death knell to Roberts’ oft-professed desire to have the court seen as above the political fray.
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