Perspective: The fate of SCOTUS

September 21, 2020

Surrendered court seats

In the final decades of the 20th century, liberals and conservatives each had their own problem that kept their preferred judges from dominating the Supreme Court.

For conservatives, it was the unreliability of the justices appointed by Republican presidents. Some turned into relative moderates (Sandra Day O’Connor and Anthony Kennedy), while others drifted further left (David Souter, John Paul Stevens and Harry Blackmun).

For liberals, the problem was the mishandling of Supreme Court transitions, through the occasional surrendering of a seat so that a Republican president could fill it.
In 1968, the last year of Lyndon Johnson’s presidency, he appointed a personal friend to replace the departing chief justice — and when the nomination floundered on ethical grounds, the seat remained available for the next president, Richard Nixon, to fill. Later, two other liberal justices — Hugo Black, in 1971, and Thurgood Marshall, in 1991 — retired under Republican presidents and were each replaced by a conservative justice. Marshall’s replacement, Clarence Thomas, is still on the court today.

If you want to understand why conservatives have come to dominate the court in the early 21st century, it’s worth keeping in mind this history. In the simplest terms, conservatives have largely solved their 20th-century problem: Republican presidents now nominate only deeply conservative justices. Liberals, on the other hand, have not solved their problem.
The death of Ruth Bader Ginsburg — like Marshall, a civil rights giant, who demanded that the United States live up to its ideals — has created the fourth time in the last six decades that liberals may turn over a seat to conservatives. Aware of this possibility, some legal scholars and writers pleaded with Ginsburg to retire while Barack Obama was president and Democrats still controlled the Senate, but she wanted to remain on the court.

President Trump and a Republican-controlled Senate now have the opportunity to place a sixth conservative member on the nine-member court. The new justice would likely be a young one who could remain there for decades, potentially helping overturn Obamacare and Roe v. Wade, outlaw affirmative action and throw out climate legislation.

The bungled Supreme Court transitions by liberals obviously aren’t the only reason that conservatives control the court. The unpredictable timing of death plays a role. So did Senator Mitch McConnell’s unprecedented refusal to allow Obama to appoint a justice following the 2016 death of Antonin Scalia. The Electoral College’s bias toward Republicans — allowing Trump and George W. Bush to become president despite losing the popular vote — matters, too.

Yet the flipping of seats from one ideology to another has been crucial. The effect of each instance can last for decades, well beyond any individual justice’s tenure, because each one can try to time his or her retirement to line up with the tenure of an ideologically similar president.

Earl Warren, the liberal chief justice for most of the 1950s and ’60s, understood this and deliberately announced his retirement in 1968, knowing he did not have long to serve on the court and fearing that Nixon would win election later that year. After Johnson failed to replace Warren, that’s precisely what happened.

Nixon’s choice, Warren Burger, was a conservative who helped undo some of Warren’s legacy. The next two chief justices, William Rehnquist and John Roberts, were also deeply conservative. Fifty-two years after Johnson mismanaged Warren’s retirement, the chief justice’s job is still in conservative hands.

If Trump replaces Ginsburg, the effect could be similarly long-lasting. The political battles of the next few months — both the court fight and the election — are about as consequential as American politics get.

GINSBURG’S LEGACY

Much of her impact occurred even before she joined the Supreme Court in 1993, at age 60. She spent years as a lawyer who argued before it and other federal courts. “As a lawyer, she used the court to make the 14th Amendment of the Constitution — in which the founders guarantee equal protection under the law for all citizens — apply to gender, a novel but necessary interpretation,” Errin Haines of The 19th wrote.

She was an evocative writer and a sharp editor. One of her former clerks, Gillian Metzger, said, “When I’m writing, I will often have the experience of I’ll write a sentence, and I’ll look at it, and I’ll think, ‘No the justice wouldn’t let me get away with that one.’”

Ginsburg and her husband, Martin, modeled a marriage of equality to many people who knew them — and took a deep interest in their clerks’ lives. Joe Palmore, one of those former clerks, recalled the time the justice accompanied him on a surprise visit to a day care center when he was struggling to find one for his child.

She loved opera, theater and art, and enjoyed a close friendship with Justice Antonin Scalia, her frequent opponent on the court.

If you haven’t yet read Linda Greenhouse’s obituary of Ginsburg, we recommend it. And CNN reviewed Ginsburg’s notable dissents and opinions.

 

THE NOMINATION FIGHT

Trump says he will nominate a replacement for Ginsburg this week, and McConnell, the Senate Republican leader, has promised to hold a vote. Democrats will not have an easy time preventing confirmation: Because there are 53 Republican senators, four would need to defect.

Two have moved in that direction. Senators Lisa Murkowski of Alaska and Susan Collins of Maine have both announced that they would not support confirming a nominee to replace Ginsburg before Election Day. (Murkowski left open the possibility that she could vote to confirm Trump’s pick in the lame-duck period between the election and inauguration.)

One other glimmer of hope for Democrats: The Senate election in Arizona this year is a special election to replace John McCain, who died in 2018. If Mark Kelly, the Democratic nominee, wins, he could take office as soon as Nov. 30, adding reason for Senate Republicans to act quickly.

A leading contender: Many conservatives hope that Trump will nominate Judge Amy Coney Barrett.

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