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2020 ElectionNews and information

Justice Ginsburg Has Left the Building. What’s Next?

Ruth Bader Ginsburg, U.S. Supreme Court

Last Friday night, U.S. Supreme Court Justice Ruth Bader Ginsburg passed away. Perhaps in another time and place, we could actually take time to reflect upon her life and how she’s left in an indelible mark on our judiciary.

However, this is America in 2020. With President Donald Trump already preparing to announce his replacement nominee this weekend, all sides are already locked and loaded to fight over the future of America’s courts.

Why has Ruth Bader Ginsburg’s death shocked America to its core?

Already President Donald Trump has done plenty to reshape the federal courts, from his and Senate Republicans’ neck-breaking pace in packing the lower courts with far-right appointees to his crowning achievement of Supreme Court Justices Neil Gorsuch and Brett Kavanaugh

Yet even with all this court packing, Trump still couldn’t count on the federal courts to give him everything he wants. Just this year, the Supreme Court rebuffed Trump on LGBTQ+ civil rights, immigrant civil rights, women’s rights and abortion accessibility, and New York prosecutors’ right to investigate his tax records. In all these cases, Justice Ruth Bader Ginsburg was part of the majority of justices who ruled against Trump.

Of course, Ruth Bader Ginsburg did far more than just cast reliable votes against the Trump agenda. But with Trump and Senate Republican leaders already threatening to schedule votes on a right-wing judge to fill the seat that Ginsburg held for the last 27 years, her entire civil rights legacy is in greater peril than ever before. So even as we await Ginsburg’s funeral, Congress has already begun to gear up for perhaps the biggest battle yet in the war of Donald Trump’s presidency.

Remember Merrick Garland?
On April 10, 2017, Chief Justice John G. Roberts, Jr., administered the Constitutional Oath to the Honorable Neil M. Gorsuch in a private ceremony attended by the Justices of the Supreme Court and members of the Gorsuch family. The oath was administered in the Justices’ Conference Room at the Supreme Court Building. Chief Justice John G. Roberts, Jr., and Judge Neil M. Gorsuch in the Justices’ Conference Room, Supreme Court Building. Photo provided by the U.S. Supreme Court.

Shortly after Justice Antonin Scalia died in February 2016, Senate Republicans quickly announced that then President Barack Obama had no right to announce a replacement. Even as Obama eventually announced Merrick Garland as his nominee, Senate Republican leaders never even scheduled a single hearing for him. That vacancy remained until the following year, when Trump nominated Gorsuch and secured Gorsuch’s confirmation.

In February 2016, Senate Majority Leader Mitch McConnell (R-Kentucky) claimed that the Senate couldn’t consider anyone Obama nominated because it was an election year. But in September 2020, McConnell’s tune suddenly changed. Now that Trump gets to pick a third Supreme Court Justice, McConnell claims that Trump has every right to pick Ginsburg’s successor because Trump is a Republican and Republicans control the Senate.

Make no mistake: For all the allegedly high-minded rhetoric over “principles”, this is truly another low-blow political fight over partisan control of the courts. Senate Republicans are pretty nakedly abandoning their “principles” over how to handle Supreme Court vacancies during an election year, and Democrats have suddenly turned Republicans’ former “principles” into their own to argue against whomever Trump picks. Needless to say, it’s incredibly unlikely Merrick Garland will ever be confirmed for this Court.

Sure, this is about law. It’s also about politics. Here’s why we’ve all converged at this intersection of law and politics. 

“The Supreme Court is always supremely important”: That’s basically an evergreen statement, but it holds even more weight now. After all, a federal trial court just dismissed Trump’s attempt to overturn Nevada’s AB 4 vote-by-mail election law. Two judges at the Ninth Circuit Federal Court of Appeals recently voted to uphold the Trump administration’s denial of TPS and DED for qualifying refugees. Despite the Supreme Court ruling against Trump’s prior attempt to destroy DACA, Trump continues his efforts to destroy DACA. An investigation by BuzzFeed and the International Consortium of Investigative Journalists has found over $2 trillion worth of potentially criminal transactions made between 1999 and 2017 at several major financial institutions, including Trump go-to Deutsche Bank and former campaign manager Paul Manafort’s activities with JPMorgan Chase. And of course, abortion is guaranteed to return to the Supreme Court very soon.

But wait, there’s more: Remember California v. Texas, the latest in a plethora of far-right attempts to use the federal courts to blow up the Affordable Care Act? Now that Ginsburg is out of the picture, Trump may soon secure enough Supreme Court votes to destroy Obamacare (and by extension – Medicaid expansion, protections against discrimination by pre-existing condition, health insurance savings for consumers, and much more) regardless of how Chief Justice John Roberts decides.

Trump has already signaled that he’s using this to play campaign politics to the max. If Trump picks Eleventh Circuit Court Judge Barbara Lagoa, he’s hoping to curry favor with Florida’s Cuban-Americans and convince other Latinx Americans to forget all the racist things he’s said and done. If Trump picks Seventh Circuit Court Judge Amy Coney Barrett, he’s hoping another radical “culture warrior” at the nation’s highest Court will further rev up the (overwhelmingly white) Christian fundmentalist portion of his base enough to hang onto Pennsylvania, Michigan, and Wisconsin. 

Regardless of whether Trump ultimately picks Barrett, Lagoa, or someone else, Trump wants someone who’s first and foremost loyal to him: Not to America, the Constitution, or any other general legal principles, but rather to Donald J. Trump. 

But wait, there’s even more: How might the fight over Ginsburg’s SCOTUS seat lead to a(nother) federal government shutdown?
Photo by Andrew Davey

In another time and place, losing someone like Ruth Bader Ginsburg would result in a solemn period of national mourning. But in our America in 2020, we’re instead facing a cataclysmic battle over the Supreme Court that may very well spill over to our wallets and bank accounts.

Wait, what?! The federal government’s current spending plan expires on September 30. Though House Speaker Nancy Pelosi (D-California) had reached a tentative agreement with Treasury Secretary Steven Mnuchin on a “clean” government funding package to last through December, the combination of Trump’s insistence on extending the farm bailout program for his own tariff regime and the heightened tension over the Supreme Court’s future may lead to the third federal government shutdown on Trump’s watch. 

Photo by Andrew Davey

And then, there’s the still-stalled HEROES Act. Since Trump’s “Lost Wages Assistance Program” has already run out of money, and since FEMA should be taking care of people affected by the wildfires and hurricanes rather than Trump’s poll numbers, it would make more sense for the White House to work with Congress on a long-term solution for the COVID-19 relief programs that largely ran out of funding and/or authorization when the CARES Act mostly expired in July. But instead of renewed relief aid, America must instead anxiously prepare for another potential crisis in the form of a federal government shutdown (on top of no new unemployment aid, little housing aid, and no new funding for state and local governments).

For over two years, we’ve been warning of the real peril of authoritarianism taking hold in this country. We’re now facing the possibility of a president who failed to win the popular vote last time around installing a new Supreme Court justice thanks to another notoriously undemocratic institution rubber-stamping this nominee either before or just after they potentially lose this election. And if this alone isn’t scary enough, look above and notice how the federal government has become increasingly non-responsive to the needs of the constituents they’re supposed to serve. It’s long past time we get woke and vote accordingly.

Cover photo provided by the U.S. Supreme Court, and made available by Wikimedia.

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