Published September 19, 2020 / Updated February 4, 2021
RBG - What Happens Next
Ruth Bader Ginsburg has died and while her family deserves time to mourn her, the fight for her seat on the Court is about to begin.
Ruth Bader Ginsburg has died. The liberal lioness of the Court passed away from complications of pancreatic cancer. She leaves behind a country on the razor's edge.
Republicans insisted that Justice Scalia's death near the end of President Obama's term fell too close to the election -- that the next President should get to choose his successor. They refused to vote on Obama's nomination to the Court and Merrick Garland remains on the United States Court of Appeals for the District of Columbia Circuit. Nonetheless, Trump and McConnell are certain to advance and attempt to confirm a nominee in the next few months.
This leaves three paths forward from here. None of them are good.
First, and most likely, is that Republicans succeed in this. They nominate and confirm -- given their control of the Senate -- a young, white, male, conservative judge who's almost certain to vote exactly the way Republicans expect him to for the next 30 to 40 years. This gives Conservatives an iron-clad Supreme Court majority for decades. Abortion rights and gay marriage are almost certainly on the chopping block. The Court's disastrous decision in Citizens United will become entrenched in precedent.
Another less likely possibility is that Democrats and moderate Republicans do something amazing. They pull out all the stops, use every procedural tool at their disposal, threaten to shut down the government, slow walk business in the Senate, and somehow manage to prevent Trump from appointing a replacement.
This is unlikely but not impossible. If Republicans are feeling lucky they might even be on board with this. Trump is struggling to turn out much more than the 40% of the country that would follow him into hell itself. If the Supreme Court hangs in the balance, then the GOP may be able to get the 2016 band back together, netting themselves RBG's seat on the Court and the Presidency to boot.
A third option, even less likely than the first two, is that Democrats take the Presidency and Senate in November and use that power to push dramatic reforms of the Supreme Court. Term limits on the Court would require constitutional amendments, but changing the number of people on the Court would not. Control of the Senate and Presidency would allow Democrats to right the wrong done to Merrick Garland.
But a fight to change the structure of the Court could be enormously destabilizing. Biden and Senate Democrats would have to walk a knife's edge to avoid the appearance of extreme partisanship. This would harken back to previous efforts to pack the Supreme Court. Franklin Roosevelt was the last President who seriously considered it and even he, with probably the most compelling mandate of any President since George Washington, feared what would happen if he did. Constitutional scholars still remember that moment as “the switch in time that saved the nine.”
There is no good path forward from here. But while the Court, the Presidency, the Senate, and the country may be held hostage by a loud, angry, vocal minority, they remain a minority. What comes next may be terrible. It may be frightening. It may be sad beyond measure and darker than we can yet imagine.
But we will face it together and together we will find the other side of it.
What can I do?
Right now, the most important thing you can do is make sure you and everyone you know is registered to vote. If early voting is available in your area, get out there and cast your ballot now. Resistbot can help you. Send vote to the ‘bot and we’ll handle the rest.
Once you’ve done that, it’s time to tell Congress what you think. Yes, all of Congress. While the House won’t vote on a confirmation, it can threaten a government shutdown to prevent one. You can draft your own letter by sending congress to the ‘bot or you can sign an existing petition by sending SIGN NTFIEZ.
Write. March. And then keep writing. Get your friends to write. Get their friends to write and register and vote. Vote. Vote like the Court, the country, and your life depend on it. Because they do.