A Supreme Court Vacancy Scrambles America’s Presidential Race

The Stage is Set for an Even More Fraught and Bitterly Contested Election Than in 2016

The death of Supreme Court Justice Ruth Bader Ginsberg at age 87 has intensified the political battle now raging in Washington and, in the view of some observers, markedly increased the chances of President Trump’s re-election. While the Republican-held Senate is attempting to confirm a replacement before election day, Democrats aspire to fill the Court with multiple nominations in the event Joe Biden prevails in November’s contest. The stage is set for an even more fraught and bitterly contested election than in 2016.
 
THE RISING STAKES OF SUPREME COURT NOMINATIONS 
 
In recent years, Supreme Court appointments have taken on increasingly central roles in Washington as the scope of the Court’s authority has widened. Prior to 1954, the Court had struck down just 77 federal statutes in nearly 170 years of ruling; in the roughly 70 years since, it’s overturned more than 500. As University of Michigan’s Evan Caminker has noted, in one eight-year period, the Court struck down 16 Congressional statutes by a razor-thin 5-to-4 margin, something that had occurred just 25 times in the preceding two hundred years.
 
In certain respects, the 2000 election represented a turning point. After a complex series of election mishaps, recounts, and lawsuits, the Supreme Court was effectively forced to decide whether Governor George W. Bush or Senator Al Gore would be awarded Florida’s electoral votes and, with them, the White House. By a narrow 5-4 vote, the Court — most of whose justices had been appointed by Republican presidents — decided in Bush’s favor, creating lasting feelings among Democrats. 
 
Equally fraught is the question of abortion, which has become increasingly central to the identity of both the Republican and Democratic parties since the Supreme Court under Chief Justice Earl Warren legalized abortion across all 50 states in 1973 in the landmark case Roe v. Wade. Nominating enough justices to overturn Roe has been a cause celebre among both the conservative legal movement and across both the Evangelical and traditional Catholic communities, and has consistently proven to be a mobilizing force among Republican voters.
 
THE STORMY PRESENT 
 
The death of Ruth Bader Ginsberg heralds a re-alignment of the court in the direction conservatives and Republicans have long sought. While President Trump’s two previous Supreme Court nominations both replaced other Republican-appointed justices, Ginsburg was the anchor of the Court’s progressive wing having been named to the post by President Bill Clinton. The prospect of another conservative justice taking her place, and shifting the court decisively 6-3 in favor of the Right, has brought grave concern to Democrats and enthusiasm among Republicans.
 
Within days, as the realization of a possibly generational loss of institutional representation set in, leading Democrats began to contemplate the possibility of redress by means of adding new members to the Court. Democratic Senator Markey tweeted “This Republican hypocrisy is shameful but not surprising. If they violate their own precedent, we must expand the Supreme Court.” Insurgent lawmaker Rep. Alexandria Ocasio-Cortez, speaking on behalf of the party’s left flank, also weighed in on movement to expand the court, saying “We should leave all options on the table, including the number of justices that are on the Supreme Court.” Democratic Presidential nominee Joe Biden, for the time being, has poured cold water on such proposals: “Action and reaction, anger and more anger, sorrow and frustration at the way things are in this country now politically ... We need to de-escalate, not escalate.”
 
As to Republican responses, within hours of Ginsburg’s passing, Republican Senate Majority Leader Mitch McConnell released a statement vowing to move ahead with nominating a replacement: “Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.” Republican Senator Mitt Romney, known for his willingness to break ranks with the party on contentious issues such as President Trump’s impeachment trial, issued a statement arguing ““I intend to follow the Constitution and precedent in considering the President’s nominee... If the nominee reaches the Senate floor, I intend to vote based upon their qualifications.”