Ruth Bader Ginsburg was perhaps the most consequential attorney in American history. As an advocate, she transformed the landscape for women’s rights. And, as a justice on the Supreme Court, she authored numerous ground-breaking opinions.
Her death may also be immensely consequential.
Her departure from the Supreme Court might change the winner of the 2020 presidential election from Joe Biden to Donald Trump.
The 2020 election may be decided by the Supreme Court — just like it was in 2000, when Ginsburg and her liberal colleagues dissented from the conservative majority’s ruling handing George W. Bush the presidency. Indeed, both sides are already lining up armies of lawyers to fight over ballots in battleground states.
With Ginsburg on the court, the main swing vote among the nine justices was John Roberts, the chief justice. Roberts has publicly clashed with Trump and ruled against him and his administration repeatedly. Most recently, Roberts wrote an opinion authorizing a New York state prosecutor to seek Trump’s personal financial records.
Until Ginsburg is replaced, any 4-4 split decision among the eight justices will simply reaffirm the lower court decision, whatever that may be. But if the Republicans confirm a new justice before the election — which is certainly their aim — John Roberts will no longer be the primary swing vote. Staunch conservatives Samuel Alito and Clarence Thomas will be aligned with Trump’s three conservative appointees — Neil Gorsuch, Brett Kavanaugh and Ginsburg’s replacement. This would give the court a conservative majority, even if Roberts were to rule against Trump.
Put simply: Ginsburg’s death doesn’t just give Trump the opportunity to appoint another justice who will issue conservative rulings for decades to come. It gives Trump the opportunity to install a fifth vote in the impending Supreme Court battle for the United States presidency.
As we learned in Bush v. Gore, litigation over presidential elections has myriad complexities — ranging from issues of federalism and states’ rights, to equal protection under the law — and therefore provides a menu of options for the justices to achieve the political result they desire.
The near-term opportunity to confirm a conservative justice before November will be front and center in Trump’s and Mitch McConnell’s minds as they begin the process of replacing Ginsburg. True, Senate Democrats will fiercely contest any Republican nomination. Perhaps additional Senate Republicans will join Susan Collins and Lisa Murkowski and push off any confirmation vote until after the election. And the election may be sufficiently one-sided that the courts do not play a decisive role.
But this scenario — that Ginsburg’s death flips the election from Biden to Trump — is no strained hypothetical. It is a concrete and plausible scenario. The high drama surrounding the 2020 presidential election has officially begun.
William Cooper lives in Truckee.