What Justice Ginsburg’s Death (could) Mean for the Supreme Court: The Wrap (9/20/20)

This week: Three considerations for the Supreme Court and Congress following Justice Ruth Bader Ginsburg’s death.

Hi there. Last week, I debuted a weekly piece meant to give you some big headlines in policy news. Slight change: It’s now simply “The Wrap” and it’s posted on Monday mornings.

I also want these to be short reads in the future, but with the news from Friday of Justice Ginsburg’s death, I couldn’t help but expound on a few things. Thanks for your patience as I find a format that works.

Now to the thing.

As of Sunday night, we’ve seen 6.7 million cases of COVID-19 in the U.S. Over 200,000 people have reportedly died.

Supreme Court Justice Ruth Bader Ginsburg passed away on Friday night at the age of 87. Her “most fervent wish” before she died was that her seat be filled by whomever wins the election in November.

Nevertheless, most Congressional Republicans and the White House have signaled they will begin the appointment process shortly, likely meaning a further conservative shift for the Court (or SCOTUS). When you factor in the current atmosphere, it prompts much broader (and overdue) conversations about whether or not SCOTUS is a functioning part of our democracy, and about the purpose of political power in Washington. Let’s look at these three considerations, as well as what else happened this past week.

1. Ginsburg’s death potentially means SCOTUS will have a strong conservative majority for decades.

Over the course of her time on the highest court, Justice Ginsburg provided key opinions on a slew of things, like gender equality. Ginsburg more often than not gave liberal opinions on cases; she eventually acted as the most senior justice for the court’s “liberal bloc.”

With an open seat, President Trump could appoint his third Supreme Court Justice, who would also give the court a sixth member appointed by a conservative president. This wouldn’t mean every case would be met with a conservative majority opinion—Chief Justice John Roberts and Justice Neil Gorsuch have shown their open to agreeing with their liberal colleagues on split decisions within the last two years.

But, depending on exactly who Trump appoints, it would likely change the future outcomes for particular things, especially abortion access. Conservatives have long sought to overturn Roe v. Wade, an outcome that becomes much more real if another Supreme Court justice is appointed under Trump.

In the meantime, SCOTUS will work with eight justices. This could be potentially disastrous regarding health care. They’re set to hear a case that challenges the validity of the Affordable Care Act this November. A lower court found the ACA’s individual mandate to be unconstitutional. A 4-4 split by SCOTUS would mean this lower court ruling would hold.

Related: Though an icon for the left, Justice Ginsburg did not give exclusively liberal opinions. Kimberly Wehle examines the late justice’s jurisprudence for Politico.

2. Is SCOTUS structurally sound and fulfilling its role?

In addition to what Ginsburg’s passing means for the existing court, it also prompts broader questions about whether or not the Supreme Court reflects the country’s residents and if it is a truly nonpartisan institution.

To be fair, it’s tough to say ‘yes’ with conviction. Half of the current members have been appointed by presidents who actually lost the popular vote in their elections. One justice—Trump appointee Neil Gorsuch—was appointed for a seat that had been vacant before Trump took office (more on that later). There’s also concerns about how partisanship has played a much larger role in the court’s procedures and reputation.

Although it was a growing issue for the left over the last few years, changes to the court became something of a pet issue during the Democratic presidential primary, with candidates like Pete Buttigieg and Beto O’Rourke calling for an expansion of the court’s membership. By adding justices when the White House and Senate are next controlled by the Dems, the sitting president could then pick enough members with more liberal ideologies to “pack” the court.

Related: There is also at least one other proposal: instituting term limits for justices. Back in March, the Brookings Institute laid out some different measures that would alter the Supreme Court.

3. What is political power, really?

The impending confirmation process for the judge who might fill Ginsburg’s seat highlights a related yet separate question: What is real political power in Washington and what’s its use?

The U.S. Senate has grown increasingly polarized over the past several years, perhaps most so under current Republican leader Mitch McConnell (R-Ky.) who has been very conservative in passing legislation. The GOP-held body was largely an obstructing force under President Obama, a Democrat. With Republican President Trump, the Senate has still passed bills sparingly; besides a tax cut for wealthy Americans and pandemic-related legislation, the only consistent work the Senate has done has involved judicial appointments.

Historically, either party would need 60 yes votes to approve a judicial appointment, including Supreme Court justices. However, the Democrats removed this requirement in 2013 in order to overcome the GOP minority at the time. Since then, a nomination for these positions has only required a simple majority.

In 2014, the Republicans took over the Senate. Not only did this once again stall Obama’s appointments, but it also led to McConnell’s decision to deny a confirmation hearing for Judge Merrick Garland for the Supreme Court. At the time, the Senator from Kentucky said it was inappropriate for them to confirm a pick for the highest court since it was an election year. That was in March of 2016.

Now, less than two months before Election Day, Ginsburg’s seat could very well be filled. While some GOP senators have said the process should wait until after the election, there looks to be enough votes for the process to carry on. Even if they do wait and Trump loses in November, they could still carry out the process in the lame duck session. In other words, the Democrats can do close to nothing about this besides the moves discussed earlier.

This all bring us back to the question I wrote above: What is political power? Journalist Nate Cohn asked this over the weekend on Twitter, and he made some sobering points. For one thing, it’s fully within the Senate Republican’s power to confirm someone for the vacant seat this close to an election despite how hypocritical that would be. This would be constitutional.

But this exercise in power doesn’t totally mesh with our concept of a democracy. As noted earlier, half of the current justices were appointed by men who were not popularly elected; the Senate GOP, despite holding a majority, represents fewer constituents than the minority party.

You might posit that this is the point though—the Senate isn’t the chamber meant to represent people like the House of Representatives, but the states. That would be valid. But is this system of power fair? Is it O.K. to determine the next few decades of legal precedent this way?

Related: Matthew Yglesias, a writer with Vox, sought to answer Cohn’s question on Twitter with his own thread.

Related: If even two more GOP senators call for the seat to remain open until after the election, this could provide the Democrats with a path to blocking it altogether. In Arizona, Democrat Mark Kelly is running against incumbent Martha McSally. If he wins, he could be placed in the Senate before December since McSally is an appointed senator. The Guardian has the details here.

Policy developments on the campaign trail

  • Last week, the Biden campaign released the former Vice President’s economic recovery and empowerment plan for Puerto Rico. Chiefly, it would help the island better recover from Hurricane Maria and recent earthquakes, address its onerous debt, and bolster access to education, health care, and food. The plan also states that Biden would work closely with Puerto Rican leaders to “determine their own status.” You can read the plan on Biden’s site here.
  • On a different note, during a town hall with undecided voters, President Trump mentioned (again) that his administration is preparing a stellar replacement for the ACA that would preserve coverage for pre-existing conditions. He has made similar claims in the past while pushing the court’s to undo his predecessor’s signature accomplishment. But there’s not much of a point in speculating what that plan would look like, because we all know to some degree that the White House likely doesn’t have such a plan in the works. The Washington Post (with a paywall) has a good timeline of the many times the President has talked about this.

What else?

  • The City of Louisville has agreed to pay $12 million to the family of Breonna Taylor, who police killed in her home. NPR pointed out that this strikes at an issue often overlooked: the financial cost of police misconduct for city residents. Cities actually spend millions of dollars on police-caused settlements each year.
  • The United States Postal Service remains in the news, this time because The Washington Post discovered it planned on mailing every household several masks back in April, free of charge. As Axios points out, such a move would not only have provided a needed resource, but it also would have signaled that we needed to take this far more seriously than we were in the spring.
  • Last week, FBI Director Chris Wray explained to lawmakers that he doesn’t believe antifa is an organized group but rather an ideology. This is important: His boss, Trump, has been very outspoken against the left-wing movement and is even looking to officially designate them a terrorist organization. While this doesn’t mean there will be a shift in how the federal government is currently addressing antifa, it does demonstrate that Wray and the FBI are focused on much more pressing matters like the growing white supremacist extremism in the U.S.

What Congress is up to: As Politico pointed out on Friday, it actually looks as though stimulus package negotiations could resume shortly. This is a significant change from the last several weeks, although it’s hard to say if anything will develop. State and local relief funds seem to be the big sticking point at the moment. Keep in mind, this was prior to Justice Ginsburg’s death. Who’s to say what the legislative agenda will look like between now and Election Day, or even now and Wednesday.

One last thought: The size of a legislature

Last week, I read that Italy is looking to significantly shrink both chambers of its parliament. While a similar thing happening in our Congress is unlikely, it is something that pops up from time to time regarding state legislatures.

Shrinking a legislature would save some money (fewer lawmakers and staff on the payroll), but if it would ultimately lead to better government is another matter. On the one hand, fewer legislators would mean their districts would be larger; lawmakers would become a bit less accessible to their constituents as a result. On the other hand, fewer lawmakers would cut down on the time it takes to negotiate bills and eventually pass them.

This thought reminded me of something I read a few years ago. Pennsylvania has one of the largest legislature second-largest lower chamber in the country. Unlike some states, state legislators in PA work full-time, meaning the cost of having such a large governing body is high. A bill to shrink the PA General Assembly failed to clear all of the hurdles in 2018.

At the time, Philadelphia 3.0’s Jon Geeting opined that his state’s best path forward wasn’t to shrink both chambers, but to eliminate one, specifically the upper chamber.

Geeting argued this would easily do a few things in addition to decreasing the cost of legislating. It would also demystify the process for Pennsylvanians, yet maintain the smaller, more easily managed state House districts to preserve the current level of representative accessibility for constituents. Geeting compared this potential structure to cities, which largely operate with one legislative body—a city council—and to Nebraska, a state with a unicameral legislature.

While such a change wouldn’t solve all problems within a government, it couldn’t hurt to keep it in mind the next time a significant piece of legislation gets stuck in committee or fails to pass. After all, government is supposed to work for you—and work well.


That’s a wrap. If you missed it last week, read the 101PC’s latest piece, a prompted piece on addressing student loan debt.


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