Ruth Bader Ginsburg: death of liberal justice gives Trump chance to reshape the US for generations

The Guardian – By David Smith/Washington D.C – Saturday 19 September 2020

The death of Justice Ruth Bader Ginsburg has sparked a titanic political fight that could shape the future of US supreme court decisions on abortion rights, voting rights and other fundamental issues for a generation.

That fight could also determine the contours of American society for three decades or more, given the central role the court plays in legislating on cultural, social and political issues.

The Senate confirmation battle to come will be a reminder of the influence the court wields within the US system of government and the impact it has on the lives of ordinary citizens.

Donald Trump has already appointed two supreme court justices – but both were conservatives replacing conservatives. If the president succeeds with a Ginsburg replacement – which on Saturday he pledged to begin “without delay” – it will fundamentally change the shape of the court, replacing a liberal with a conservative. This would deliver a handsome majority on the court and probably change American life in unprecedented ways.

The ability of the court to interpret legislation from abortion to voting rights and from racial segregation to LGBTQ issues means that a successful appointment would probably be Trump’s lasting legacy. Supreme court justices serve open-ended terms, impacting the country decades after any president leaves the White House.

Over the last century the court has played a fundamental role in reshaping US society. In 1954, it ruled that school segregation was unconstitutional. In 1973, its Roe v Wade decision legalised abortion. In 2010, the court removed most restrictions on political spending by corporations. In 2013, it gutted voting rights protections in place since the civil rights era. In 2015, it made same-sex marriage legal.

Such are the ways the court impacts the lives of US citizens. It is why the battle for Ginsburg’s replacement represents such a totemic fight for the future of America.

The 87-year-old led the liberal wing of America’s highest court which, technically, is meant to be apolitical. John Roberts, the chief justice, said in 2018: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” But that principle has suffered years of erosion – if it ever held true.

Ginsburg’s death has struck the 2020 presidential election, already described as the most important in a lifetime, like a lightning bolt. It looks set to put the court at the centre of a category 5 hurricane of partisan brawling, political machinations – and profound uncertainty.

“I think the future is unwritten and anyone who tells you they know what’s going to happen is wrong,” said Chris Hayes, a host on the MSNBC network. “We are in utterly uncharted territory.”

The court is about to start a new term and can continue to function with eight justices although in the absence of Ginsburg, appointed by Bill Clinton in 1993, it has instantly been rendered more conservative.

Roberts has recently been the swing vote, usually siding with conservatives but sometimes with liberals, notably on decisions to uphold an important abortion precedent and protect so-called Dreamers (undocumented) from deportation. Now his influence may be diminished.

A week after the election, the court is due to hear a third challenge to Barack Obama’s signature healthcare law and consider the House of Representatives’ efforts to obtain secret grand-jury materials from special counsel Robert Mueller’s Russia investigation.

It is also possible that the court may be asked to rule on a disputed presidential election, just as it was in 2000 when it tilted 5-4 in favour of Republican George W Bush over Democrat Al Gore. Jim Sciutto, national security correspondent at CNN, tweeted: “A 5-3 conservative court may have some very big decisions to make about the upcoming election.”

Ginsburg’s empty seat is will be the latest monumental struggle in a country already shaken by the coronavirus pandemic and racial unrest. Like the bitterly divisive nomination of Justice Brett Kavanaugh in 2018, and like the election itself, both sides seem likely to portray victory for the other in existential terms.

Donald Trump has frequently touted his lifetime appointments of two conservatives to the supreme court, and 200 judges to lower courts, to rally supporters on the campaign trail. Earlier this month, just as in 2016, he unveiled a new list of prospective supreme court nominees. Despite Ginsburg’s parting message – “My most fervent wish is that I will not be replaced until a new president is installed” – he may decide to nominate one within days.

It would then be up to the Republican-controlled Senate to hold a confirmation hearing. On Friday night, Mitch McConnell, the majority leader, declared: “President Trump’s nominee will receive a vote on the floor of the United States Senate.”

There was an outcry, accusing McConnell of hypocrisy. When the conservative Antonin Scalia died in February 2016, also an election year, McConnell refused to act on Barack Obama’s nomination of Merrick Garland to fill the opening. The seat remained vacant until after Trump’s victory.

McConnell argues this case is different because in 2016 the president was Democratic and the Senate majority was Republican but now the same party controls both. His opposite number, Chuck Schumer, and the Democratic presidential nominee, Joe Biden, instantly rejected the view.

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