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Justice Ginsburg: the last of a just America

Would a Trump Supreme Court nomination energise his conservative base, or will his presidency end before he gets the chance to appoint the next RBG?

The founding fathers talked about how the Supreme Court judiciary would be the least dangerous among the executive and legislative branches, but this has little relation to the power of SCOTUS today. The Court’s rulings can negate state and congressional laws and exercise substantive due process over a wide variety of hot political debates. That is a lot of power wielded by nine unelected judges who are seemingly untouchable and unaccountable. This brings up obvious questions of democracy.

The idea that the court be separated from political debate and the whims of the majority however is unrealistic in this highly polarised political environment. Justices can easily be divided into different political camps, and a third appointment by President Trump would firmly place the court into a conservative position. The court acts on big debates often stuck in the gridlock of Congress. In the past these have included segregation, abortion rights, and same-sex marriage. Such an unpopular president being able to wield such substantial long-term power over the court has unsurprisingly concerned many.

The framers seem to have aimed to keep the court separate and impartial to the political whims of the country, hence they specified life tenure for the justices on ‘good behaviour’.

Kavanaugh, despite endless calls for his impeachment for his lack of ‘good behaviour’, has retained his position on the bench. The tenure awarded to the justices does help to maintain independence and some consistency in constitutional interpretation. Arguably, judges should be protected from retaliation from disapproving politicians in order to maintain their ‘objective’ reading of the law. Still, the idea of Brett Kavanaugh wielding decisions over the United States’ most contentious issues for decades to come is alarming. The alternative does not sound much better however. A court that changes with each president would create huge inconsistencies and potentially result in a very different America every four or eight years. It would be hardly feasible to have a court that rules differently on abortion rights depending on the party in the White House at the time. The current system appears flawed, but these issues ultimately reflect the highly polarised political atmosphere in the US. In the past Supreme Court justice nominees were ratified by unanimous decision, now each process is a battle ground between liberal and conservative forces.

Trump’s nominee Judge Amy Coney Barrett has shown herself to be a committed conservative, being named a ‘hero’ of the anti-abortion movement. If Barrett is confirmed by the Senate, the Supreme Court could be the most conservative it has been in 70 years. Some predict that Kavanaugh will be the new median on the court if Barrett is confirmed. This is a bizarre thought as Brett Kavanaugh is hardly a neutralising or median figure. 

…past Supreme Court justice nominees were ratified by unanimous decision, now each process is a battle ground between liberal and conservative forces.

The shifting of the centre of gravity could have massive implications for many hot-button cultural issues, such as gun rights and abortion. In addition, if Trump wins a second term his administration may be free of a major roadblock to his aims, with the court recently reiterating constitutional limits on the power of the executive branch.

Whether the Senateshould ratify president Trumps nomination is unsurprisingly under much debate. The timing of Justice Ginsburg’s death, just 45 days before the election has added fuel to both Trump and Biden’s campaigns. In ABC news’ poll, 57% of respondents think the next president should nominate a new justice, while only 38% believing that Trump should fill the seat now. These polls closely resemble both the polls of trumps approval rating and the polling data for the national election. Generally public opinion is split along partisan lines.

Despite the lack of public popularity, the process is still moving forward at record speed. Senate Majority Leader Mitch McConnell has pledged a vote on the nominee before the election, and it is likely to go through. This is the same man who, back in 2016, refused to hold a vote on Obama’s nominee Merrick Garland. McConnell claimed in 2016 that “the American people should have a voice in the selection of their next supreme court justice, therefore this vacancy should not be filled until we have a new president”. Clearly, McConnell’s passion for democracy has dwindled over the past four years. But, McConnell has never placed much priority on political consistency.

Unsurprisingly, this hypocrisy has caused outrage – but Democrats have little power to stop the process. Republicans hold a four-vote majority in the Senate, Democrats can only hope for is a retaliation by the voters in November. It is unclear, however, if the ratification of a justice would actually hurt Republicans at the ballot box. Trump seems to hope that his nomination will energise his conservative base, particularly non-college educated women whose support has lagged over his term. The debate will rage on, but the outcome is unlikely to change. Trump has party votes to ratify his nomination. There is little to stop Judge Barrett from sitting on the Supreme Court.