After the death of the Supreme Court justice, Ruth Bader Ginsburg, President Donald Trump finds himself with an opportunity to tip the US Supreme Court into a 6-3 conservative majority. Appointing a third justice to the court could cement Trump’s political legacy, and that of his conservative supporters, for generations.
Less than 48 hours after the announcement of Ginsburg’s death, the battle over her successor began. The biggest question so far is whether or not a replacement should be appointed so close to the November election. Both parties are, once again, playing political football with the court, and that only damages its long-term institutional legitimacy.
The current moment is absolutely critical. American politics is deeply and bitterly divided and that has been reflected in the sharper divisions over court appointments in the past two decades. This fight will be no different. In fact, it’s likely to be even more bitter.
The loss of Ginsburg, the most consistent and vocal of the court’s liberals, and her potential replacement by a conservative in the vein of either Neil Gorsuch or Brett Kavanaugh – Trump’s two previous Supreme Court justice picks – would tip the balance of the court towards the conservatives more decisively than at any time since the early 1930s.
The legacy of the rights revolution of the 1950s and 1960s now hangs in the balance. That possibility represents the culmination of a decades-long plan of action by conservatives who specifically and deliberately targeted the nation’s courts. A strategy more than four decades in the making now stands on the verge of complete success.
A word of warning about terminology here. For years, politicians, the media, and commentators have been using the terms “liberal” and “conservative” to describe the balance on the court. Too often that is interpreted as synonymous with Democrat and Republican.
But this is far too simplistic and overlooks consistent denials from the justices that they make decisions based on party politics. Liberal and conservative should more precisely be regarded as justices’ approaches to reading, understanding and applying the law. Although, of course, this may overlap with their personal politics, it is not quite the same as making political decisions.
Appointments and their consequences
Appointing three or more justices is not historically unusual for a president. Of the 20 presidents elected since the turn of the 20th century, ten before Trump had the opportunity to appoint more than two justices, including Franklin D. Roosevelt (FDR) who appointed nine, Dwight Eisenhower five and Richard Nixon four. It’s only in recent years that the average number of Supreme Court appointments made by presidents has dropped to closer to two.
But the more justices a president can appoint, the greater the opportunity to shape the future direction of the nation’s highest court. FDR’s nine appointments saw the court shift from the late 1930s onwards from opposing most government regulation of the economy, to supporting it, to finally largely retreating from economic issues entirely. This represented the end of the court’s most conservative period of the 20th century and laid the foundation for its shift in the second half of the century towards an increasing focus on issues of civil rights and civil liberties.
Eisenhower appointed Earl Warren to the court, who served as Chief Justice while the court drove the massive expansion of individual civil liberties in the 1960s known as the rights revolution. But his successor as chief justice, Warren Burger, aided by four Nixon appointees, slowly chipped away at the legal underpinnings of key Warren court precedents, weakening their scope and protections.
Reagan’s nominations cemented a more conservative majority on the court in the 1980s. A conservative-leaning court with at least one centrist justice who might be persuaded to join the liberals is where the situation stood until Ginsburg’s death.
Abortion, guns and affirmative action
If Trump is successful in appointing Ginsburg’s successor, it’s unlikely the court will lurch suddenly and dramatically to the right. More likely is a situation akin to that of the Burger Court: slow, incremental change that will eat away at the edges or underpinnings of key liberal rulings. The changes are no less fundamental but might be less easy to see, at least at first.
Although Roe v Wade, which protected, within limits, a woman’s right to terminate a pregnancy, is the case most often considered as under threat from a court with a legal conservative majority, the threat is actually broader. Roe rested on a 1965 ruling, Griswold v Connecticut, which established a “right to privacy” in the constitution, an area of personal decision-making into which the state could not intrude except without very good reason.
Abortion rights are not the only issue built on the foundation of privacy: reproductive choice, sexual privacy and some legal rights for the LGBTQ+ community rest on the same foundation. They too may be at risk from a more conservative court.
Affirmative action programmes, especially those which use race as part of university admissions, and which have been hanging by a thread in the past few years, are also likely to be targets for a new court majority.
Expect, too, new rulings on gun rights. Despite the 2008 ruling in District of Columbia v Heller which established a right to bear arms for self-defence, conservatives have become increasingly incensed at state and local laws governing gun ownership. These have been upheld by lower courts while the supreme court has remained largely silent. A more conservative court is likely to rejoin the debate.
And religious conservatives might well hope that a third Trump appointee will continue the recent trend of holding religious liberty as a crucial right, even if it conflicts with the rights of others. Those who continue to believe in the importance of the separation of church and state may find that the wall between them will crumble further and faster than it has to this point.
In 2016, Democrats fought against hard against Trump’s choice of Gorsuch less because of Gorsuch himself and more in anticipation of the fight they are now facing. Ginsburg is gone and in the White House is a Republican dedicated to appointing deeply legally conservative justices. The battle will be bitter and bruising. And the result will have long lasting consequences for the nation and its citizens, whatever the outcome.
Emma Long is senior lecturer in American Studies, University of East Anglia.