It seemed all of America was metaphorically holding its breath on the ailing health of Ruth Bader Ginsberg. Her presence on the Supreme Court had become a saving grace in the Trump administration, keeping the Court’s politics relatively steady, even as Trump added on two more conservative justices. Most Americans understood, however, that if Justice Ginsberg were to pass or step down while Trump is in office, her replacement would likely be much more conservative, and thus upset the political balance of the Court. With conservative justices like Thomas and Alito reopening conversations about the constitutionality of the landmark Obergefell v. Hodgins case, which legalized gay marriage at the federal level, as well as Roe v. Wade, the membership of the Supreme Court is at one of its most critical junctures. The Court’s future under another Trump administration or a Biden administration is truly a pinnacle facet of the political landscape of the U.S. in coming years.
After Ginsberg’s death in September, Trump swiftly nominated Amy Coney Barrett for the Supreme Court. On October 21st, the Senate Judiciary Committee approved her nomination, allowing the Senate to vote whether to instate her on the Court prior to the election. On October 26th, she was confirmed by the Senate in a 52-48 vote. Given Lithium writer Sophia Moore’s piece on Barrett’s stances, I will emphasize that her nomination is a slap in the left’s face for a few reasons.
Perhaps most obvious is the fact that the same conservative politicians who demanded the confirmation of Coney Barrett prevented the confirmation of Obama’s pick to replace Justice Scalia in 2016, Merrick Garland. While these individuals, chief among them Mitch McConnell, declared that a Supreme Court nomination from a president in his final year was a no-go, Garland was nominated earlier in the election cycle than Coney Barrett.
Next, there’s her age. Part of the reason why Merrick Garland was a fairly neutral pick for Obama was that at 63, Garland was on the older side for a Justice—meaning he would only serve around twenty years, in all likelihood. Coney Barrett, on the other hand, is 48. She could remain on the Supreme Court for upwards of forty years. When our generation’s grandchildren are born, she might still be there.
Personally, I’ve seen a lot of talk on the internet in recent days about the start of a modern-day Handmaid’s Tale should Coney Barrett be confirmed. While her placement on the Supreme Court will certainly have its consequences, I’d like to emphasize that a key principle of the Court is stare decisis, which essentially means that the court must follow historical precedent on rulings unless there is an extremely dramatic need to overturn it. Overturning a ruling is not taken lightly. This doesn’t mean that cases are never overturned, but an overturn won’t come without a dramatic shift in legal interpretation.
This principle is key for understanding the futures of both Roe v. Wade and Obergefell v. Hodgins. Alito and Thomas are the only justices showing interest in reexamining Obergefell, which would already be a particularly brazen case to retry given that it’s only five years old. Both Gorsuch and Kavanaugh have said that since Roe v. Wade is the law of the land, they do not intend to overturn it. This does not mean that they are opposed to chipping away at its protections through other means, but without the support of Gorsuch and Kavanaugh, an attempt to strike down Roe would likely only yield a 3-6 vote. It’s more likely that the Court will uphold laws that attack abortion rights through other means, such as demanding waiting periods for abortions or mandating admitting privileges for doctors. These laws can still have a dramatic effect on abortion rights, but they likely won’t eradicate them completely.
In my opinion, the main issue to look out for is the fate of the Affordable Care Act. The Court will rule on the fate of the ACA on November 10th. Though it again is unlikely that the Court will strike down the law in full, it is possible that the Court will strike down the individual mandate portion of the ACA—which essentially penalizes individuals for not having health insurance.
Perhaps the most interesting Supreme Court development to watch out for is the possibility of Court reform, if Biden wins the nomination. Most famously considered by FDR, “packing the Court” involves adding Justices to the Supreme Court for the first time since the mid-nineteenth century. While Biden has directly avoided giving his stance on the highly controversial practice, it’s clear that he’s considering it—or some other type of reform to the Court. Biden has recently stated that he wants to create a “bipartisan commission” to reexamine the court system. While reforming the Supreme Court might seem radical, it is not unconstitutional; the Constitution does not specify the number of justices who can serve, nor does it say that the number of them is set in stone. If effective, a bipartisan plan to revamp the court could give us a lasting solution to the threat of extremism that comes with nominations resting on the party of whomever happens to be in office.
All of this to say that yes, Amy Coney Barrett has joined the highest court, and yes, this will likely result in a conservative swing which will chip away at the progressive protections gained under liberal Supreme Court majorities. But I would argue that all is not lost. Justices Roberts, Gorsuch, and even Kavanaugh have shown commitment to upholding the moderation of the Court. Consider Gorsuch’s majority opinion in the Court’s ruling that the 1964 Civil Rights Act protects LGBTQ workers from discrimination. At Gorsuch’s nomination, no one would have expected this to come from him, but that’s the beauty of the court. Unlike other roles in government, wherein politicians have to vie for reelection and thus favor with their party, Justices are free to consider only the constitution. This gives me hope, as does the possibility of Court reform in a deeper sense. If the Biden administration finds a way to sustainably restructure the nomination process and numbers of the Supreme Court, that reform could quite possibly be the best legacy for which a modern president could hope.
By Sheena Holt
Illustration by Julia Tabor