The People v. Progress (2020)
On September 18th 2020, America lost an absolute powerhouse of a figure - Ruth Bader Ginsberg.
Ruth Bader Ginsberg was the second ever woman on the Supreme court, the first Jewish woman, and a key fighter for equal rights for the American people. Characterised as a “rational minimalist” by Legal Scholar Cass Sunstein, RBG voted on precedent rather than directing the Constitution towards her own goals. RBG had been a Justice for several crucial Supreme Court cases such as United States vs. Virginia (1996) and Ledbetter v. Goodyear (2007). Both cases tackled gender discrimination, and Gonzales v. Carhart (2007) opposed the continuation of a previous pro-abortion stance.
These cases are not just indicative of her attitudes and impact: they are insight into the type of cases which the Supreme Court deal with, and the massive implications their votes have.
She was and (will continue to be) a trailblazer for equality and justice.
Perhaps she should be most remembered for inspiring a fair pay act, which made it much easier for pay discrimination cases to be won by employees. After her various race and gender discrimination cases, it is evident that RBG played - and will continue to play - a monumental part in gender equality long after her passing. One only must look at the outpouring of emotions from official statements and on social media to see the vast effect RBG had on people across the globe.
She is survived by her two children and a legacy which will outlive that of most people from any period of American history.
It is a crucial time for the United States, and it has not been made any easier with the passing of one of the judges in the ‘Liberal wing’ of the Supreme Court. The implications of RBG’s death are far spread and could lead to the upheaval of the immense progress America has made in its relatively short time as a nation.
The power that the Supreme Court has is hard to quantify. They are the highest court in the United States and have had the final say in landmark laws which changed the course of American life forever.
To fully grasp the turning point at which the US is poised, we must examine what happened the last time a seat of a serving Associate Judge of the United States Supreme Court became available in an election year.
It is February 2016: President Obama is coming to the end of his two-term presidency and the presidential race between Democrats and Republicans is heating up. Gravitational Waves are first discovered by LIGO, and Ed Sheeran wins a Grammy for Best Song for “Thinking Out Loud”. February 2016 - 9 months until the US presidential Election, and Antonin Scalia dies while being an Associate Judge of the Supreme Court.
Almost immediately after Scalia’s death, Mitch McConnell, the Senator from Kentucky, and the Senate Majority Leader, announces the following:
“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”
This was the end of President Obama’s nominee’s chances at a seat on the Supreme Court.
September 18, 2020: 45 days until arguably the most important election in the history of the United States. Mitch McConnell says the following:
"President Trump's nominee will receive a vote on the floor of the United States Senate.”
This has led some commentators to call out that this as hypocritical. ‘Why the change of opinion Senator McConnell?’ they ask. It is an election year and a seat has become available. Do the American people not have a voice in the selection process to the highest court in the land? According to Senator Mitch McConnell, in 2016 they did.
Before we continue, a few things need to be established about the current US Supreme Court:
1. Over the years, voting in America has focused on a few certain issues (which boil down to laws); abortion, guns, drug legalisation, and racial & gender equality.
i. It is not uncommon for voters to only vote based on a candidate’s stance on one issue and ignore the rest. This is known as single issue voting.
2. Since 2000, there have been four conservative leaning judges successfully nominated by President Trump and President Bush combined, versus two confirmed Obama nominees. This has moved the Court to the right. Over the years the Supreme Court has been more and more divided down the middle by conservatives and liberal leaning judges.
3. Supreme Court seats are for life, and so the impact of a President’s nominees last long beyond their term of office. The most recent nominee, Brent Kavanaugh, is only 55 and could easily serve for thirty years or more.
4. The Supreme Court outcome is down to a singular vote: majority wins.
The November 2020 election is fast approaching, and it is shaping up to be a close one. Covid-19 has severely impacted the election across the whole of the United States of America, from campaign rallies to the postal service. The world has been disastrously affected by the virus. It seems that every day a new problem arises from Covid – 19. With second waves rapidly occurring across countries, it is getting trickier to hold any minor event, let alone an election.
To fully understand why that last sentence is so important, we need look at other landmark cases which have been debated by the Supreme Court.
· Korematsu v. United States (1944) – The Court upheld the internment of Japanese Americans during WW II.
· Brown v. Board of Education (1954) – The segregation of black and white students in public schools is made unconstitutional.
· United States v. Nixon (1974) – The President cannot use executive privilege to withhold evidence from criminal trial.
· Obergefell v. Hodges (2015) – Same-sex marriage is legalised across all 50 states.
These are just a choice selection to show the type of cases that make their way to the Supreme Court, and thus the impact the Supreme Court has on those from on all walks of life. However, there is one I deliberately left out of the list so that we could focus on it in more detail.
In 2000, during another presidential election held between George W Bush and Al Gore, the case Bush v. Gore (2000) found its way to the Supreme Court as there was contention around the recounting of votes in the State of Florida’s vote for President. The outcome of this Supreme Court vote was that a recount was not feasible in the amount of time allotted for it. This outcome was in Bush’s favour, and Al Gore then conceded the election, which led to George W Bush becoming the 43rd President of the United States.
I can see how an election held during a pandemic might cause contention.
So, who nominates a Supreme Court Justice?
The President of the United States.
Who approves the nomination of the President to take a seat on the Supreme Court?
The Senate
How many Supreme Court justices have been nominated by President Trump and confirmed by the Republican Controlled Senate in recent years?
2 and it could soon very well be 3.
A court of Political Appointees possibly affecting the outcome of an election: that is a lot of power in the hands of whoever nominates and confirms them.
So, why is Ruth Bader Ginsberg’s seat the topic of much debate?
There has been precedent in the past for the Supreme Court to rule against a vote recount in a presidential race. We could very well see a repeat of Bush v. Gore, especially if there are disputes over vote counts in critical swing states.
Let’s now look beyond the election, as it is never a good idea to get tunnel vision. We have seen the kind of cases which reach the Supreme Court. There have also been cases brought to the Supreme Court which focus on reworking the previous rulings of the Supreme Court: these cases indicate that the Court can also uphold or strike down its own decisions. Whether RBG’s successor is a liberal nominated by a President Biden, or a conservative nominated by President Trump, the person who fills that empty seat could make a huge difference to a wide range of social and economic issues affecting the United States.
The United States election is on the 3rd of November, and at time of writing that is 45 days away. For Conservatives, it is 45 days to shore up a Conservative majority on the Supreme Court. For liberals, 45 days to secure the legacies left behind by Ruth Bader Ginsberg. The stakes could not be higher.
Written by Tobias Wright