The Justice with Nine Lives

Opinion Analysis by Roa Daher, Staff Writer

September 24th, 2020

After Supreme Court Associate Justice Antonin Scalia passed away on February 13th of 2016, it was expected that President Barack Obama’s nominee, Merrick Garland, would fill Scalia’s empty seat. However, Republican Senate majority leader Mitch McConnell declared that this empty seat on the Supreme Court would be filled by the next elected president. This was a very controversial move but it was successfully executed because of the Senate’s Republican majority who did not Democratic President Obama to make any more appointments to the Supreme Court that would potentially fundamentally alter the Court’s composition and give it a liberal majority.

As such, the Senate committee in charge of Supreme Court appointments used its power to prevent Merrick Garland from replacing Justice Scalia. When President Donald Trump was elected later that year, despite losing the popular vote, he nominated the conservative Neil Gorsuch for the ninth seat on the Supreme Court; when discussing the conservative nature of Gorsuch, or any other Supreme Court Justice for that matter, it is important to know that the word ‘conservative’ is used to refer not only to their views, but also their interpretation of the law, which governs the majority of their decisions.

In late June of 2017, Supreme Court Associate Justice Anthony Kennedy announced that he would retire at the end of the upcoming month, giving President Trump the opportunity to further shape the highest court in the United States. While Justice Scalia was a conservative, meaning that Gorsuch’s appointment did not have that profound an impact on the balance of conservatives and liberals in the court, Justice Kennedy was considered a swing vote. That is, while Justice Kennedy is considered a ‘conservative’, his rulings have often been found to be decisive in controversial Supreme Court rulings such as protecting the political spending of corporations, legalising same-sex marriage, and upholding the individual’s right to bear arms. President Trump nominated Brett Kavanaugh, who has been called “more reliably conservative than Kennedy”, thus pushing the Supreme Court further to right, in a move that is expected for a Republican President’s second Supreme Court appointment.

The controversy surrounding Kavanaugh became apparent during his Senate confirmation hearings, during which he was accused of sexual assault by three different women. First came the accusations of Christine Blasey Ford, a professor of psychology at Palo Alto University, of sexual assault when they were in high school. Deborah Ramirez was the second woman to come forward and attest that she had been sexually harassed by Kavanaugh when they were freshmen at Yale University. The third woman, Julie Swetnick, stated that she saw Kavanaugh engage in sexual misconduct at several parties while he was in Georgetown Preparatory School in the 1980s. Thus, President Trump, a sexual predator, a confirmed sexual predator, nominated Brett Kavanaugh, another sexual predator, for a seat on the Supreme Court. What’s more is that, despite the questioning that took place during the Senate confirmation hearings regarding the accusations of sexual harassment and the extensive reporting about it, the Senate confirmed Kavanaugh in a 50-48 vote that would secure a conservative majority in the Supreme Court for years to come. 

On September 18th of 2020, Ruth Bader Ginsburg, a highly influential member of the Supreme Court and the champion of its liberal wing, died at 87 due to complications from her metastatic pancreatic cancer. Her death leaves one of the nine seats of the Supreme Court empty, awaiting a third nominee from President Trump. While Mitch McConnell, in a historically unprecedented move, blocked President Obama from beginning proceedings for the appointment of Merrick Garland in 2016 using the excuse of election year, it is this same excuse that is currently being used to rush President Trump to make a nomination before Election Day in November. After all, the Republican-majority Senate would love nothing more than to secure a 6-3 conservative majority in the Supreme Court, which would be achieved by a third Trump nominee. A conservative majority in the Supreme Court would cause irreversible change to previous Supreme Court rulings, like the infamous Roe v Wade, and shape the future of the United States in highly important, divisive, and diverse matters.

In the wake of Justice Ginsburg’s death and given the long-lasting significance of Supreme Court justices, the question being asked is whether she should have retired earlier and given the Democrats a chance to hold her liberal seat for a longer period of time, especially given her struggles with her health. Some claim that she did the right thing by not retiring and that she has the right to remain on the Court for as long as she lives, especially given her senior standing in the Court, while others have declared her decision ‘selfish’ in that it jeopardises the liberal presence on the Supreme Court and thus the future of the entire nation. In the aftermath of her death, there need to be conversations about how to prevent a 6-3 conservative majority from happening, as it would have devastating consequences on public healthcare, including reproductive health, and immigration for decades to come.

With Election day less than 2 months away and a Republican-majority Senate, it is highly likely that President Trump will name a nominee to replace Justice Ginsburg, making it the third nomination of his term, and one that will completely alter the balance of the Court. Even if the Democrats are miraculously successful in delaying the confirmation of Trump’s nominee, it would take Joe Biden winning the election to ensure that a 6-3 conservative majority does not rule the Supreme Court. The Democrats’ threats to ‘pack the court’, that is to increase the number of seats on the Supreme Court which would alter the Court’s political makeup, have been proven unsuccessful as Mitch McConnell announced that the Republicans secured the majority needed to confirm Trump’s SCOTUS nominee. Senator Mitt Romney gave the Republicans the 51st vote that they needed to move with the confirmation; of the Senate’s 53 Republicans, only two have not supported this bold move that secures the Senate’s vote before a viable nominee is even chosen.

Since Senator Romney voted to remove President Trump from office not too long ago, there was much speculation about whether he would support the SCOTUS vote. When discussing his decision, he said, “My liberal friends have over many decades gotten very used to the idea of having a liberal court, but that's not written in the stars.”. He even called it “appropriate for a nation that is … center-right to have a court which reflects center-right points of view.” The very political party that blocked the confirmation of Merrick Garland because it was ‘too close to the election’, even though it was eight months before November, has whipped the votes needed to confirm the appointment of a nominee that has not even been chosen, less than two months before election day.

So now, given the 6-3 conservative majority that will likely be ruling the country for decades to come, it might be time to envision what a United States of America ruled by a conservative Supreme Court that could overturn Roe v Wade and the Deferred Action for Childhood Act (DACA), among other significant rulings, would look like.