Ruth Bader Ginsburg, Supreme Court justice and feminist icon, is dead at 87

On Monday, by a narrow vote of 52 to 48, the US Senate confirmed Judge Amy Coney Barrett to replace the late Ruth Bader Ginsburg on the Supreme Court.

The 48-year-old Barrett was appointed by Trump to the 7th Circuit Court of Appeals in 2017, and was also reportedly a finalist for Justice Anthony Kennedy’s seat in 2018. She has been portrayed as a favorite of social conservatives seeking to push against the Supreme Court’s abortion jurisprudence. She is unusual, compared especially to famously (and perhaps strategically) tight-lipped recent nominees like Brett Kavanaugh and Elena Kagan, for her extensive paper trail on questions of constitutional law. As a legal academic, she’s written extensively on what obedience to the original meaning of the Constitution requires of judges and members of Congress; how to reconcile the importance of precedent with allegiance to the Constitution’s original meaning; and how precedent can be used to mediate deep disagreements about the law.

Republicans are poised to gain a 6-3 majority on the Supreme Court, something that will enable any five of the Republican-appointed justices to strike down policies supported by Democrats.

If Democrats take back the White House and Congress, however, they have several potent tools they can use to defend against a 6-3 Court. The most potent is court-packing: add enough seats to the Supreme Court to overwhelm the Court’s current majority, and then fill those seats with judges who support voting rights and are not inclined to strike down progressive legislation.

The death of Ruth Bader Ginsburg and her replacement by Amy Coney Barrett, in many ways her ideological opposite, underlined a peculiar aspect of the American political system: The state of laws governing everything from abortion to environmental regulation to health care to national security depends, in part, on when exactly elderly judges happen to die.

That not only fosters a ghoulish preoccupation with the health of Supreme Court justices, and puts justices like Ginsburg in a position where they have to dictate their wishes for their seat from their deathbed — it also raises major questions about whether a group of nine unelected jurists, appointed for life, has too much power over law and policy in the United States.

Senate Republicans’ approach to the Supreme Court vacancy created by Justice Ruth Bader Ginsburg’s death may reek of hypocrisy, but it’s consistent with how the party has advanced its preferred judicial nominees over the past four years: Ultimately, because they can, Republicans just end up doing whatever they want.

Sen. Lamar Alexander (R-TN) spelled out this position in a statement he issued last weekend supporting Senate Majority Leader Mitch McConnell’s plans to move ahead with a vote on whoever President Donald Trump nominates, despite Republicans having argued in 2016 that filling a Supreme Court seat in an election year is undemocratic.

The Supreme Court is best known for its role in adjudicating social issues, both its triumphs as an institution, like its decision in Brown v. Board of Education, and its most shameful moments, such as Dred Scott v. Sandford and the rulings that struck down the civil rights legislation of the 1870s. Of course there’s Roe v. Wade, whose authors saw it as a ruling in the tradition of the former and whose critics see it as a ruling in the tradition of the latter.

But in the American system, essentially every law and regulatory undertaking is subject to litigation and second-guessing by the courts. That means Supreme Court appointments have vast and wide-ranging authority over economic issues — authority that is often ignored by politicians and the media, but not by people with money at stake.

When news broke that Ruth Bader Ginsburg, the longest-serving liberal justice on the Supreme Court, had died, it became clear almost immediately that President Trump would try to replace her with a conservative justice before the presidential election on November 3. It also became clear that Mitch McConnell, the Senate majority leader who famously blocked President Obama’s Supreme Court nominee in a presidential election year in the name of letting the people choose, would work with Trump to push through the nominee ASAP.

The brazenness of the move, along with the prospect of a Supreme Court with six conservative justices, almost immediately sparked a liberal response in the form of calls for court-packing.

On a blustery November day, I found myself on the Boston Common with what turned out to be a very small group of protesters. Our view was that Al Gore, who had clearly gotten more votes than his opponent, should be seated as the next president of the United States.

It didn’t happen, and in fact, the line of argument we pursued — that democratic legitimacy ought to count for something — wasn’t even taken up by the Gore campaign or Democrats. They instead pursued a legalistic argument that was denied by a 5-4 majority of conservative Supreme Court justices. Two decades later, we’re staring down the barrel of exactly what I worried about that November: not an old Constitution with some funny quirks, but a self-reinforcing spiral of minority rule.

In his Sunday newsletter, Axios’s Mike Allen laid out “the Democrats’ armageddon option” in the fight over a new Supreme Court justice. Here it is (emphasis in the original):

This is disturbing. Not that Democrats are considering these options, but that they’re being framed as “armageddon” and “total war.”

The question of whether President Donald Trump will get to fill the late Supreme Court Justice Ruth Bader Ginsburg’s seat this year — either before the election or even after it, if he should lose — is entirely up to Senate Republicans.

There are 53 Republican senators. Confirmation of a nominee would take 50 Senate votes, plus a tiebreaker vote from Vice President Mike Pence. Democrats are likely to remain united in opposition to any Trump effort to fill the seat, but they can’t stop the GOP by themselves. They’d need to convince at least four Republican senators to join them — to agree to let the winner of the next election fill Ginsburg’s seat.

In an impassioned plea for a restoration of procedural norms and good-faith governance, Democratic presidential nominee Joe Biden has called for President Donald Trump’s forthcoming Supreme Court nominee to be withdrawn should he win the election in November.

“If I win this election, President Trump’s nominee should be withdrawn and, as the new president, I should be the one to nominate Justice Ginsburg’s successor,” Biden said during a speech in Philadelphia on Sunday.

In the wake of Supreme Court Justice Ruth Bader Ginsburg’s death on Friday, President Donald Trump and Senate Majority Leader Mitch McConnell have announced their intention to fill her seat on the Court as swiftly as possible.

Democrats have not yet settled on one particular strategy to counter the Republican agenda, but they’re signaling that they’re not ruling out aggressive responses like rebalancing the Court through court-packing or seeking unconventional ways to delay the nomination.

The prognosticating over how quickly a replacement justice would be nominated to the US Supreme Court began immediately as news of Justice Ruth Bader Ginsburg’s death broke late Friday evening. Saturday, Senate Republicans intensified that speculation as they increased calls to rapidly ram a conservative judge through the nominating process ahead of the upcoming election.

Senate Majority Leader Mitch McConnell and many of his Senate Republican colleagues have signaled they would work quickly to ensure a Supreme Court nominee receives a floor vote. Maine Sen. Susan Collins, locked in a tight reelection campaign, has urged a more deliberative process, however, and Alaska’s Sen. Lisa Murkowski has advocated for waiting until after the election.

Sen. Susan Collins (R-ME) became the first Republican senator to call for the Senate to delay voting on a new Supreme Court justice until after voters choose the winner of the 2020 election on Saturday. On Sunday, Sen. Lisa Murkowski (R-AK) became the second.

“In fairness to the American people ... the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd,” Collins said in a statement Saturday.

At a rally Saturday night in North Carolina, President Donald Trump promised a fired-up crowd chanting “fill that seat” that he will nominate a woman to replace the late Supreme Court Justice Ruth Bader Ginsburg this week.

“I actually like women much more than I like men,” Trump said to cheers, and encouraged his supporters to make “Fill that seat!” T-shirts.

President Donald Trump vowed in a tweet Saturday morning to replace Supreme Court Justice Ruth Bader Ginsburg, who died Friday, “without delay.”

“We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices,” Trump tweeted. “We have this obligation, without delay!”

On September 9 — just last week — President Trump unveiled his shortlist of candidates to tap for the Supreme Court should a vacancy open up under his presidency.

With Ruth Bader Ginsburg’s death Friday night, he now has that opportunity.

The eight remaining Supreme Court justices mourned and celebrated their late colleague Justice Ruth Bader Ginsburg in individual statements Saturday, calling her a “woman of valor,” a “hero” to many Americans, and a “cherished colleague and friend.”

“To me, as to countless others, Ruth Bader Ginsburg was a hero,” wrote Justice Elena Kagan. “Her work was as careful as it was creative, as disciplined as it was visionary. It will endure for as long as Americans retain their commitment to law.”

Justice Ruth Bader Ginsburg was one of the Supreme Court’s strongest champions for abortion rights. Her death on Friday at the age of 87 throws the future of those rights into doubt.

Ginsburg always maintained that the right to an abortion was key to women’s autonomy. In her dissent in the 2007 case Gonzales v. Carhart, for example, she called it “a right declared again and again by this court — and with increasing comprehension of its centrality to women’s lives.” And though her view did not carry the day in that case, which upheld a ban on so-called “partial-birth” abortion, she was a crucial bulwark on the Court against any direct assault on Roe v. Wade, the landmark 1973 decision that established abortion rights in America.

As soon as the news of Supreme Court Justice Ruth Bader Ginsburg’s death was announced, the speculation began about the fight to replace her on the Court and how it might affect the 2020 presidential election.

Court appointments were already a key issue for voters across the political spectrum. Recent polling showed that Democratic voters were more motivated than Republicans by Supreme Court nominations. As President Trump’s polling numbers have lagged behind Democratic nominee Joe Biden over the past several months largely due to his inept response to the coronavirus pandemic and resulting economic collapse, Trump has attempted to remind voters that Supreme Court nominations are on the line this election.

The Supreme Court was Justice Ruth Bader Ginsburg’s workplace and her battleground.

It was where, while working as a lawyer in the 1970s, she argued six cases and won five, setting precedents that established women’s equality before the law. It was where she issued her memorable dissents during her 27-year tenure.

Former President Barack Obama called Ruth Bader Ginsburg a “a relentless litigator and an incisive jurist” in a statement Friday night, shortly after the 87-year-old Supreme Court justice’s death due to complications with cancer.

Obama’s statement was brief, praising Ginsburg for inspiring the generations that followed her, “from the tiniest trick-or-treaters to law students burning the midnight oil to the most powerful leaders in the land.” He noted that both he and his wife, Michelle Obama, admired her and the work of her long career.

Democratic presidential candidate Joe Biden told reporters Friday night that he thinks a new Supreme Court justice should not be confirmed to replace the late Ruth Bader Ginsburg until after the November presidential election is held and the president inaugurated.

“There is no doubt — let me be clear: The voters should pick the president, and the president should pick the justice for the Senate to consider,” Biden told reporters following news of Ginsburg’s death. “This was the position the Republican Senate took in 2016 when there were almost 10 months to go before the election. That’s the position the United States Senate must take today, and the election is only 46 days off.”

The Affordable Care Act is coming before the Supreme Court in November — and this time, with no Justice Ruth Bader Ginsburg there to protect the law.

Ginsburg, who was appointed to the Court by President Bill Clinton in 1993 and served until her death on Friday, voted to uphold the law in 2012. Along with the three other liberal justices and Chief Justice John Roberts, she saved Obamacare then from a legal challenge that would have invalidated the law entirely.

In the wake of Supreme Court Justice Ruth Bader Ginsburg’s death on Friday, Senate Majority Leader Mitch McConnell made clear that whoever President Donald Trump picks to replace her will get a Senate floor vote.

“President Trump’s nominee will receive a vote on the floor of the United States Senate,” he said in a statement, though he did not specify when this potential vote is expected to take place.

Less than one hour after the death of Supreme Court Justice Ruth Bader Ginsburg was announced, speculation began on Fox News about her replacement.

On Tucker Carlson Tonight Friday, Ned Ryun — the CEO of American Majority, an advocacy group that trains conservatives who aspire to political office — said he would advise President Donald Trump to nominate Amy Coney Barrett, who, he said, “I’m a big fan of; in fact, I prefer her over Kavanaugh ... I think she’d be a solid choice, she’s still in her 40s. She’s on the Seventh Circuit right now, has proven her conservative credentials.”