Justice Ruth Bader Ginsburg’s death has pulled the U.S. Supreme Court deep into the nation’s bitter political wars, threatening lasting damage to the reputation of a governmental branch that has struggled to remain above the partisan fray.
President Donald Trump and Senate Republican Leader Mitch McConnell are vowing to fill the seat despite the impending election. Outraged Democrats are now talking about drastic measures should they gain control of the Senate and the White House in November, with some even musing openly about an historic upheaval to the court’s makeup — adding seats to the nine-member bench to dilute the conservative majority.
That hasn’t been seriously discussed since President Franklin Roosevelt unsuccessfully pitched a court-packing plan to Congress in 1937. The fact that it’s even being mentioned shows the high court is entering a dangerous new phase of turmoil.
“If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year,” Senate Minority Leader Chuck Schumer told fellow Democrats Saturday according to a person familiar with the matter.
The outcome could be messy. Trump could nominate a justice, lose the Nov. 3 election to Democrat Joe Biden, and then see his nominee confirmed by a lame-duck Senate. And if Democrats take control of the Senate, many of the very senators voting to confirm Trump’s choice already would have been thrown out of office by the voters.
The upshot could be lasting damage to the court’s reputation and its role in American democracy at a time when both parties are already nursing grudges stemming from Trump’s previous two nominations.
“It’s a difficult time and a very perilous time I think for the court in its legitimacy,” said Barbara Perry, a presidential and Supreme Court scholar at the University of Virginia’s Miller Center.
The imbroglio could overwhelm Chief Justice John Roberts’s efforts to protect the court’s institutional standing. The Republican-appointed Roberts has long fought the perception of the court as a political body, insisting that judges are akin to neutral baseball umpires and pushing back against Trump when the president criticized an “Obama judge.”
Roberts has also softened the impact of Trump’s two appointees, Justices Neil Gorsuch and Brett Kavanaugh. In recent years Roberts sided with the liberal wing in a handful of major cases, including an abortion case this year, and resisted his conservative colleagues’ calls to resolve more divisive issues, such as gun rights.
Roberts’s efforts have borne some success so far. In August, a Gallup poll showed public approval of the Supreme Court at its highest level in more than a decade, at 58%, with positive marks from both Democrats and Republicans.
But a new conservative justice would reduce Roberts’s leverage, probably stripping him of his position as the pivotal justice in the bulk of the most polarizing cases. That swing justice role could increasingly fall to Kavanaugh.
Roberts “will lose influence,” said Jonathan Adler, a constitutional law professor at Case Western Reserve University School of Law. “Kavanaugh probably becomes the median justice. The chief’s primary influence will probably be being able to assign opinions, but it will be less in his ability to control the outcome of cases.”
Kavanaugh’s increased prominence would be a bitter pill for liberals still chafing over his 2018 confirmation, secured despite allegations that he committed sexual assault decades ago. Kavanaugh angrily denied the claims at his confirmation hearing.
He has adopted a more genial tone since taking the bench, saying in a 2019 speech to the conservative Federalist Society that he is part of a “team of nine with a superb and wise chief justice.”
The confirmation fight itself is likely to further poison the atmosphere surrounding the court. Democrats accuse Republicans of hypocrisy, remembering how McConnell blocked consideration of President Barack Obama’s selection of Merrick Garland to fill a vacancy that arose in February 2016. Trump eventually appointed Gorsuch to the seat.
McConnell said immediately after Ginsburg’s death became public Friday that the Senate would vote on Trump’s nominee.
Trump told reporters Saturday he expects to make a selection next week, saying his election four years ago gives him that right. “We won, and we have an obligation as the winners to pick who we want,” he said.
The political stakes would only climb if Trump’s nominee won confirmation and Democrats seized control of the White House and the Senate. Democratic Senator Ed Markey of Massachusetts said on Friday that Democrats should add seats to the court if that happened.
“Mitch McConnell set the precedent,” Markey tweeted. “No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
Getting rid of the filibuster would mean that Democrats would need only 51 votes to pass the legislation necessary to add Supreme Court seats. Congress hasn’t expanded the court since 1869.
The Constitution doesn’t set the number of Supreme Court justices; it can be changed by Congress and the president. But that didn’t work for Roosevelt, who tried to add justices to back his policies only to face resistance from the court and his own political party.
“All of this maelstrom around the court is never good for it because it draws it into the muck and mire of everyday politics,” said Perry, the University of Virginia scholar. The vacancy, she said, has created “this perfect storm of controversy.”
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