Justice Ruth Bader Ginsburg Public Memorial at the U.S. Supreme Court, Sept. 21, 2020 (detail).
Photo by Elvert Barnes, licensed under CC BY-SA.
Black cloth will drape the vacant seat of the late Justice Ruth Bader Ginsburg when the Supreme Court returns to the bench 11 days from now, while the court’s tenuous precedent in Roe v. Wade looms over it.
The controversy over abortion access and Roe has consumed most rational discussion of the high court’s role and makeup for four decades. Even in the sharpest controversies, this does not happen with well-grounded, well-reasoned decisions, or with those that put transient issues to rest. There was never any serious discussion of overturning Brown v. Board of Education, which itself reversed a dreadful decision that legalized official segregation in Plessy v. Ferguson. In less than five years, Obergefell v. Hodges has made same-sex marriage an immutable fixture of the legal landscape. Bush v. Gore lives only in history.
In Roe, the court got in front of society in a highly emotional area. It thus foreclosed the persuasion and compromise that are part of the legislative process. It also federalized what had previously been a state issue. The court made its own compromises, leaving states space to regulate or even outlaw most abortions in the third trimester, thereby ensuring that the boundaries of that regulatory space would be litigated to the present day. Even most of its backers never loved Roe, but as the controversy dragged on through the years, it has become their judicial Maginot Line.
A visitor from another planet observing the politics of filling a Supreme Court vacancy might conclude that the court adjudicates nothing but abortion controversies, and that the outcome of any such controversies are predetermined by the court’s makeup. Neither is true. Whether Roe will stand – or exactly what would follow it if it falls – is very much an open question, even with a solid conservative majority on the court. I have previously written that I believe a conservative constitutional argument can be made on behalf of abortion access, whether under Roe’s terms or otherwise.
But apart from Roe, the court will resolve many questions of major public importance in the years to come. When it comes to the conservative-liberal divide, those questions will tend to be over the respective powers and privileges of the three branches of government, the unelected bureaucracy, and citizens, either individually or collectively. While she adamantly defended Roe as precedent, Ginsburg could hardly wait to revisit the court’s decision in Citizens United v. Federal Election Commission, which struck down restrictions on corporate and organized labor’s political speech. In the years to come, attempts to challenge or evade Citizens United are certain.
Similarly, the court’s makeup will affect how it rules in future cases on school choice, firearms regulation, federal taxation (such as proposals to impose a federal wealth tax of questionable constitutionality), the scope of state powers to tax income of nonresidents and former residents, the use of race and gender in affirmative action, and federal district courts’ issuance of nationwide injunctions to mandate or constrain action by the political branches. All of these questions will surely head to the high court sometime down the road.
The Senate will probably confirm Ginsburg’s replacement by Election Day, as President Donald Trump has advocated. There is a school of thought that Republicans in tight Senate races would benefit if the seat remained open until after voters make their choice, the better to motivate their conservative base. But in the event – unfortunate but not unforeseeable – that the presidential balloting itself is thrown into the courts, it would be well to avoid the potential of a 4-4 deadlock among the justices. So the odds seem to favor a GOP move toward a quick confirmation vote, despite near-certain incendiary opposition from Democrats.
Besides the election itself, if it should come to that, the Supreme Court already has a crowded argument calendar for the term that begins on the first Monday of October. The addition of a new justice to fill Ginsburg’s seat will minimize the chances that some of these cases will need to be reargued in the event of a narrowly divided decision.
On Election Day itself, the court will hear arguments in Jones v. Mississippi. That case centers on whether a trial court must determine that a juvenile is incorrigible before sentencing a teenager to life imprisonment with no possibility of parole. The next day, the justices will hear an appeal over the city of Philadelphia’s refusal to let Catholic Social Services place juveniles in foster homes because of the agency’s religious objections to placements with same-sex and unmarried opposite-sex couples. (The agency notes that such couples can foster children through other agencies in Philadelphia.)
Another challenge by Republican-led states to the Affordable Care Act is on the docket on Nov. 10 in Texas v. California. In early December, the court will consider whether the House of Representatives can demand that the Justice Department turn over grand jury materials in connection with an impeachment investigation. Also in December, the court will hear arguments in an appeal by the Republic of Hungary. Hungary wants to require Holocaust victims, survivors and their heirs to exhaust local appeals before bringing claims in U.S. courts. Immigration rulings are also on the horizon. Though the date for argument has not been set, the court has said it will hear Albence v. Guzman Chavez, which hinges on which rules govern the detention of someone seeking asylum in the U.S. after having been previously deported.
This, of course, is a fraction of the court’s business in the coming term. It does not represent even the full workload that will be on the docket before the new Congress and a potential new president are sworn into office in January. As I noted earlier this week, in the event of a Democratic Senate takeover accompanied by Trump’s reelection, the seat that Ginsburg vacated might have remained empty for years if the Senate's current GOP majority had not coalesced behind a decision to fill it.
Roe v. Wade has become the litmus test of how most Americans feel about filling vacancies on the Supreme Court. But that is a blinkered view of the court’s role in our national life. One side of the political divide generally sees the court system as a legislature of last resort; the other generally sees it as a bulwark against endlessly expansive assertions of government power over individual choices. We reconcile those views at the ballot box on a calendar that is as regular as the seasons. The fateful timing of Ginsburg’s death means her successor, whoever that turns out to be, will likely be determined by choices the electorate has already made.