The Supreme Court may be about to take a hard-right turn

RUTH BADER GINSBURG, the trailblazing liberal justice who died aged 87 on September 18th, will lie in repose at the top of the Supreme Court’s steps on Wednesday and Thursday. As mourners pay their respects, Donald Trump and his advisers will be huddling a few miles across town to pick a nominee to replace her. The choice, Mr Trump said on September 21st, will be revealed on Friday or Saturday—days before Ms Ginsburg is to be buried at Arlington National Cemetery.

Though she gained widespread celebrity as a lion of the liberal legal movement later in her career, Ms Ginsburg arrived at the Supreme Court as a moderate in 1993. The president who tapped her, Bill Clinton, said “she cannot be called a liberal or a conservative” as she has “proved herself too thoughtful for such labels”. Indeed, several progressive groups, including the Alliance for Justice, expressed misgivings at the time that she might not be bold enough on the bench.

Those worries gradually ebbed as Ms Ginsburg began a steady path to the left, leaving her, at the end of her career, paired with Sonia Sotomayor as the more progressive half of the liberal quartet of justices. But with Mr Trump in the White House and a 53-47 Republican majority in the Senate, chances seem strong that her seat—and the court—will be radically refashioned by its next occupant despite howls of protest from Democrats.

Five women are under consideration. The leading contender is Amy Coney Barrett, a long-time law professor at Notre Dame chosen by Mr Trump for a judgeship on the Seventh Circuit Court of Appeals in 2017. Another is Barbara Lagoa, a state-court judge from Florida whom Mr Trump elevated to the Eleventh Circuit Court of Appeals just last year. Judges Barrett or Lagoa, or any of the three other short-listers, would join the court on its right flank. All seem skeptical that the constitution protects abortion rights; Judge Barrett, a devout Roman Catholic, has declared abortion to be “always immoral”.

How to measure the impact of a new judge? One method comes from two political scientists, Andrew Martin of Washington University in St Louis and Kevin Quinn of the University of Michigan, who have measured the ideological balance of the court, and its individual justices, going back to 1937. The Martin-Quinn score, as it is known, ranks each justice based on how likely they are to vote for the “conservative” or “liberal” outcome in any given case, based on their votes in past contested court cases. It also estimates the position of a putative “median justice”, which suggests the court has leaned to the right since the mid-1970s.

Judge Barrett does not have a voting history on the court, and therefore no Martin-Quinn score. To approximate one, we rely on a separate ideological measure for Appeals and Circuit court judges known as the Judicial Common Space (JCS) score. We combined the JCS and Martin-Quinn scores for existing justices on the Supreme Court, and compared these with the JCS score of Ms Coney Barrett, derived from her votes on the Seventh Circuit. We estimate that Ms Coney Barrett stands to the right of Brett Kavanaugh and Neil Gorsuch, Mr Trump’s first two appointees, but to the left of Samuel Alito and Clarence Thomas (see chart above).


Despite the court’s conservative tilt, Chief Justice John Roberts, appointed by George W. Bush, has in recent times tacked towards the centre to fashion several 5-4 decisions preventing Mr Trump from adding a citizenship question to the 2020 census and from cancelling protections for undocumented immigrants. He also anchored a narrow victory for abortion rights. But with a new Republican-selected nominee, even one in the broad centre of conservatism, the chief will be unable to play his balancing role.

A pitched battle looms. Democrats say Republicans are reneging on the principle they themselves established in 2016—when they refused to let Barack Obama fill Justice Antonin Scalia’s seat—that during election years, the next president should fill Supreme Court vacancies. Republicans (despite the misgivings of two of their senators) now say it is their duty to fill the seat as soon as possible.

Both sides are right: Senate confirmations of Supreme Court nominees have occurred many times in American history during election years, not least when former Justice Anthony Kennedy took the bench in 1988 (see chart, left).

But by playing both sides of this game four years apart, Republican tactics are understandably infuriating to Democrats. In response, some on the left propose expanding the size of the Supreme Court in an ideological re-balancing effort should their party win control of the Oval Office and Senate in the November election. Thus far, Joe Biden, the Democratic nominee, has resisted these calls.

In the absence of such a change, or other reforms such as limits to justices’ tenure, Mr Trump’s next pick will lead the court to a sharp right turn that may last for decades.

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