What to make of the fight over Ruth Bader Ginsburg’s Supreme Court replacement

Much is unknown about how the nomination of Judge Amy Coney Barrett will affect the presidential election. (Photo/Pixabay)

By Jenesse Miller

The death of Supreme Court Justice Ruth Bader Ginsburg has renewed the fight over who will determine the ideological future of the nation’s highest court just ahead of Election 2020.

As expected, President Donald Trump nominated Judge Amy Coney Barrett of the 7th U.S. Circuit Court of Appeals to fill the vacancy on the court, and Senate Republicans have promised a swift confirmation process.

Democrats have accused Republican senators of hypocrisy, noting that in 2016 several GOP senators cited that year’s presidential election as a reason for declining to vote on then-President Barack Obama’s Supreme Court nominee, Merrick Garland. This time, Senate Majority Leader Mitch McConnell and other senators say the combination of a Republican president and GOP-held Senate provide a mandate to proceed. 

Much remains unclear about the brewing Supreme Court fight, including the timing, whether it will help or hurt the presidential candidates, and if it will galvanize voters who are motivated by issues such as abortion, religious freedom and health care access.

SCOTUS fight is suddenly a top election issue

“An issue we haven’t been talking much about in this election is now going to be front and center in this campaign,” said Robert Shrum, the director of the Center for the Political Futher at the USC Dornsife College of Letters, Arts and Sciences and a former political strategist and consultant.

But unlike some in the Trump campaign, Shrum doesn’t believe the Supreme Court fight will help the president make headway with voters. He explained that the recent USC Dornsife Daybreak Poll asked voters which candidate they trusted more on cabinet and Supreme Court appointments and former Vice President Joe Biden had an 8-point lead over Trump. 

Shrum also noted that a confirmation battle over Trump’s nominee will hurt the reelection changes of several senators in swing states – for example, U.S. Sen. Cory Gardner, R-Colo. – and therefore McConnell may postpone the vote until the lame duck session after the election.

Religious conservatives hope to see their voice on the court

Trump’s nominee, Barrett, has been criticized for her speeches and writings about her religious beliefs and her opposition to abortion, and Democrats opposed her nomination to the appellate court in 2017. Their focus shouldn’t be on the fact that she is a person of faith, or that she’s a Catholic – something she has in common with several other current and prior Supreme Court justices – but how her beliefs may conflict with constitutional and civil rights, said Nomi Stolzenberg, the Nathan and Lilly Shapell Chair in Law at the USC Gould School of Law and an expert on law and religion.

The focus should be on how the nominee's beliefs may conflict with constitutional or civil rights, says Professor Nomi Stolzenberg.

“She is being selected to fulfill a half-century campaign to take back the courts, to return religion to the public square, to dismantle a style of secularist constitutional interpretation that religious conservatives find objectionable,” she said. “Folks on the opposite side are naturally going to greet her selection with great alarm for that reason.”

If the Senate approves the nominee, the Supreme Court will move to the right

“Consider almost any hot-button issue before the court in the last decade — abortion rights, affirmative action, the Affordable Care Act, the constitutionality of the administrative agencies that make up the bulk of the federal government, etc. — and once-settled understandings are suddenly up for grabs,” said Sam Erman, a USC Gould assistant professor of law whose research focuses on citizenship, the Constitution, race and legal change. 

He explained that with the addition of a conservative judge to the court, the balance of power on the court will shift, noting that Chief Justice John Roberts has provided the decisive vote in several controversial cases.

“Justice Ginsburg’s death and her looming replacement with a justice well to Justice Roberts’s right means that the Supreme Court is about to lurch in a conservative direction,” said Erman. “If federal elections also follow current polls, we may soon see a war between democracy and the judiciary unlike any since the New Deal.” 

The addition of a conservative judge shifts the balance of power on the court, says Professor Sam Erman.

One major issue of concern: whether recent civil rights gains for LGBTQ people could be at risk with a more conservative high court.

“The shift from more conservative justices occupying five of the seats on the Supreme Court to occupying six means that, in most cases, two of the more conservative justices would have to join the three remaining more liberal justices to rule in a pro-LGBT manner,” said David Cruz, a professor of law at USC Gould and an expert on civil rights, same-sex marriage and the Supreme Court.

He noted that although Roberts and Justice Neil Gorsuch joined liberal justices in the sexual orientation and gender identity discrimination opinion the court handed down this past June, the court could well go a different direction in cases under other statutes or the Constitution. Potential examples include disputes about restroom usage by transgender students, Trump’s transgender military ban or challenges to restrictions on “conversion therapy.”

With Obamacare legal challenge, health care is back in the headlines

“The potential Supreme Court gamechanger, and where Biden could pick up points, is with non-college educated white women and this fight over pre-existing conditions,” said Mike Murphy, co-director of the USC Dornsife Center for the Political Future. “That’s the Star Wars laser sword and there are a lot of politically dead Republicans from 2018 who will remember how effective that weapon is.”

Though Justices Roberts and Gorsuch joined liberal justices on recent decisions on sexual orientation and gender identity discrimination,  a new majority could bring different resutls, says Professor David Cruz.

Murphy explained the Supreme Court is scheduled to hear challenges to the Affordable Care Act just one week after the presidential election, and Democrats were already preparing to make the threat to health care coverage for those with pre-existing conditions a major election issue. The fight over Ginsburg’s replacement, and the potential for a more conservative court to repeal Obamacare, adds timely fuel to that messaging.

Murphy argued that although the debate over abortion rights during the confirmation process may energize Trump’s voter base, that issue won’t motivate the suburban voters that Trump needs to win.

“In the raw politics of it, if Trump’s key path to getting his campaign back to striking distance is to win back the suburbs, a huge fight over abortion rights will not help him,” Murphy said. He added that college-educated white women, many of whom are independent voters or “soft” Republicans, tend to be pro-choice. And while the abortion fight energizes Trump’s base, “moving Alabama from 63% to 65% for Trump doesn’t change the electoral college.”

Flip-flopping on election-year nominees may not bother voters

The issue of flip-flopping on an election year Supreme Court confirmation process has galled many Democrats, who are using some senators’ words against them in advertising campaigns.  Their critical ads have evoked pleas for donations from Senate Judiciary Committee Chair and U.S. Sen. Lindsey Graham, one so-called flip-flopper who is in his own close reelection fight in South Carolina.

But Christian Grose, associate professor of political science and public policy at USC Dornsife and academic director of the USC Schwarzenegger Institute for State and Global Policy, isn’t sure the ads will do much damage.

“A number of senators who blocked Obama’s nominee in the last year of his term, including Majority Leader McConnell, are now supporting a swift confirmation under Trump, especially as some fear Trump may lose the election,” Grose observed. “This has led to many senators flip-flopping on this issue. This does paint them in a bad light, but research I’ve published in the American Journal of Political Science suggests the negative electoral effect of flip-flopping can be tempered with explanations to voters.” 

Will the new justice affect the presidential election? The legitimacy of the court could be in peril, says Professor Franita Tolson, vice dean for faculty and academic affairs.

Grose expects that key voters will be persuaded by their senators’ explanations for their newfound positions, but said many others just aren’t paying close attention to the latest election developments.

What if the Supreme Court decides the 2020 election?

The question that may be striking the most fear into Democrats’ hearts is whether Trump’s Supreme Court pick will eventually rule for him in any dispute over the results of the presidential election. Senate Democrats say they will urge Trump’s nominee to commit to recuse herself in the event of a contested election outcome. On the other hand, Senate Republicans argue a complete slate of justices is necessary to avoid a 4-4 tie over any dispute. 

“Refusing to recuse could imperil the legitimacy of the Supreme Court if it issues a 5-4 ruling in favor of the President on an outcome determinative election issue, a la Bush v. Gore – and that majority includes the newest appointee who had been confirmed only days earlier through a rushed and partisan process,” said Franita Tolson, vice dean for faculty and academic affairs and a professor of law at USC Gould.

With so much at stake, USC experts agree the Supreme Court battle will continue to dominate the headlines as well as the upcoming presidential debates.