After a lengthy battle with metastatic pancreatic cancer, Supreme Court Justice Ruth Bader Ginsburg passed away at home in Washington DC on 18 September. The second-ever female justice to be appointed to the Supreme Court, Ginsburg proved herself a fierce champion of equality over more than 27 years on the bench – becoming a feminist icon in the process. “Our nation has lost a jurist of historic stature,” Chief Justice John G Roberts Jr wrote in a statement released by the Supreme Court. “Today we mourn but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her – a tireless and resolute champion of justice.” Beyond simply mourning her loss, however, America is now reckoning with how the death of the Supreme Court’s most liberal voice will affect the country, particularly in light of the presidential election on 3 November.
To recap, there are nine Supreme Court Justices in the United States – eight Associate Justices and one Chief Justice – who make the nation’s most important legal decisions on topics such as health care; gay marriage; immigration rights; and the legality of abortion. When one of the nine seats becomes vacant, the acting President nominates a replacement – who, inevitably, shares his political leanings and, critically, serves for life. The Senate (which is currently held by a Republican majority) must then confirm any potential justice’s appointment with a majority vote (after the nominee has been reviewed by a Senate Judiciary Committee). Having just eight justices for an extended period is generally considered less than ideal, because it could theoretically result in a deadlock during a Supreme Court vote.
Here are just three examples of decisions the Supreme Court made during the session that ran from October 2019 to June 2020:
- 1Could President Trump legally abolish DACA, the legislation that allows the children of illegal immigrants to stay in the US? No, in a 5-4 ruling.
- 2Does the Civil Rights Act of 1964 protect members of the LGBTQIA+ community from workplace discrimination? Yes, in a 6-3 ruling.
- 3Must all doctors performing abortions in Louisiana have admitting privileges at a hospital within a 30-mile radius? No, in a 5-4 ruling.
During his four-year term, Trump has already appointed two Supreme Court Justices, Neil Gorsuch and Brett Kavanaugh– replacing conservative judges with equally conservative ones. Now, however, he has the opportunity to put a Republican-leaning justice in Ginsburg’s place, meaning the Supreme Court will have a significant conservative majority (six to three). Note: in theory, the Supreme Court is meant to be totally without political bias, instead basing its decisions entirely on the Constitutional legality of the matter at hand. In practice, that’s up for debate.
Further complicating the matter of selecting Ginsburg’s replacement? Back in 2016, after the death of conservative Supreme Court Justice Antonin Scalia, Republican Senator (and Senate Majority Leader) Mitch McConnell blocked Obama from choosing his successor in an election year on the grounds that the decision rested with the next President. Now, McConnell has done a complete 180, issuing a statement confirming that Trump’s nominee “will receive a vote on the floor of the United States Senate”.
Barack Obama, Joe Biden, Hillary Clinton, and other leading members of the Democratic party have already called for McConnell to uphold his previous stance, noting that Ginsburg’s dying wish was not to be replaced until the next President had been installed, according to an NPR report. Rest in peace, RBG.
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