SCOTUS Expert Weighs in on Justice Ruth Bader Ginsburg’s Legacy and the Upcoming Election

The death of Supreme Court Justice Ruth Bader Ginsburg, just weeks before the 2020 election, has introduced a new dimension to an already-contentious campaign season. 

Davidson College Associate Professor Andrew O'Geen is an expert on the dynamics of the Supreme Court, including the cooperative behavior of justices, the judicial review of federal laws and the dynamics of the court's issue agenda. Here, he shares insights into how Ginsburg’s place on the court might be filled and the potential implications of this development on the upcoming election.

How will Justice Ginsburg be remembered?

In the coming days, there will be any number of detailed, and probably moving, tributes written to Justice Ginsburg’s life and career. Long-time NPR court reporter Nina Totenberg has already published several, and I recommend those to people who would like more detail about Justice Ginsburg’s legacy. 

Justice Ginsburg was a brilliant and fierce advocate for equal rights for women. Prior to her service as a federal appellate judge and as a Supreme Court justice, she orchestrated and executed a legal assault on legislation that made arbitrary distinctions between people, simply because of their gender. These cases ultimately resulted in several decisions where the U.S. Supreme Court adopted her arguments that the Equal Protection Clause of the 14th Amendment should be read to include a prohibition against this type of discrimination. She also had the rare opportunity as a Supreme Court justice to enforce the interpretation that she helped to craft. She was just the second woman to be appointed to the Supreme Court.

Later in her career, she also became something of a pop culture icon. For younger folks, who may not be familiar with her advocacy and her direct role in shaping women’s rights, they will likely remember her for her powerful dissents and for her quiet strength and determination.

Given the timing of Justice Ginsburg’s passing, the failed 2016 nomination of Merrick Garland looms large. At the time, U.S. Sen. Mitch McConnell argued that justices should not be confirmed during an election and frequently pointed to comments then-Senator Joe Biden made about 20 years earlier. Can you fill in how this precedent—if it is indeed a precedent—was set?

Biden’s statement came in the summer preceding the 1992 election and was delivered more in the abstract. There was no vacancy on the court at the time and, if you look back at Biden’s remarks and consider the timing, he makes explicit reference to the “campaign season.” 

In 1992, this essentially meant from the summer through the election in November. Garland’s nomination in 2016 came in the winter (Justice Scalia died in February), but the Republican majority in the Senate extended the logic of Biden’s argument to say that the “campaign season” was already ongoing. Whatever definition of “campaign season” you choose, it certainly includes the period from now through the election. However, from his recent statements, it does not appear that Mitch McConnell is going to stand by his earlier arguments about the impropriety considering nominees during an election year.     

Do the next steps fall solely on Sen. McConnell’s shoulders?

Largely, yes. And, again, it appears that he and the Republicans in the Senate are poised to move quickly on the nomination, despite the obvious difficulty of having just argued that this sort of thing should not happen during election years.

The Senate Judiciary Committee also will play a role, and South Carolina Senator Lindsay Graham (as committee chair) will be an important player. Given the closeness of Sen. Graham’s re-election race in South Carolina, I suspect that he will want to claim credit with his constituents that he shepherded another conservative justice onto the court. So, he and McConnell are both likely interested in moving any nomination through the process as quickly as possible.  

How do you see this playing out?

The confirmation of Supreme Court justices—like so much of what happens in American politics—has historically been governed by informal norms of behavior. These norms are strong influences on individuals if they feel like they will lose out by violating them, but can disappear surprisingly quickly if people choose to ignore them.

So, the most powerful weapon the Democrats have to delay or stop the nomination is public sentiment. If senators perceive that acting on the nominee, under these circumstances, will damage their re-election chances, they may be reluctant to do so. With several vulnerable Republican senators, and majority power in the Senate on the line, it might be enough to delay the nomination until after the election. However, the president and the Republican majority in the Senate are very motivated to appoint conservatives to lifetime judicial seats. It is hard to say for sure, but recent history suggests that norms will not be enough to stop or delay the nomination. It remains to be seen what, if any, levers the Democrats can pull to prevent another appointment.