While Ruth Bader Ginsburg will forever remain in the hearts and minds of the public, the void of her absence on the Supreme Court leaves uncertainty for the future.
The Associate Justice died from complications of pancreatic cancer on Sept. 18, 2020 . Thousands gathered to mourn her in front of the Supreme Court Building in Washington, D.C.. As the second woman to ever be appointed to the Supreme Court, she was a prominent figure and a champion for gender equality and women’s rights.
After the news of her death, some were quick to speculate who would be nominated to replace her. The president is expected to announce his nomination of Amy Coney Barrett, a judge in the Seventh Circuit Court of Appeals, later today.
Opinions are divided because some believe Ginsburg’s seat should remain empty until after the presidential election, while others want to fill her seat as soon as possible. It is mainly conservatives who want to nominate a new justice because it will most likely be a conservative who is appointed. Before Ginsburg’s death, there were five conservative and four comparatively liberal justices in the court. Should a conservative justice be appointed, it would mean that the court would be a conservative Supreme Court majority.
Why should it matter if a justice leans more conservative or liberal? It matters because whoever holds the seat could have a serious effect on the Supreme Court’s decisions. In a conservative court, more progressive cases can be invalidated due to the justices’ ideologies. Future progressive legislation for climate change or health care could be in jeopardy. Even the precedent set by Roe v. Wade, which said women had the right to choose abortion, could be overturned.
In a perfect democracy the court would be balanced. Since the Supreme Court has lifetime terms, it could be a long time before the Supreme Court will be more objective. It is this stark reality that has Democrats thinking of ways to fix the imbalance a conservative justice would create.
Some think it is time to update certain Supreme Court practices, like giving the justices limited terms. Once a justice is appointed, they can only be removed by impeachment or if they decide to retire. However, limiting the terms will not help our current situation because it would still be years before the current justices would be expected to retire.
Another option that some Democrats are entertaining is court packing, which is increasing the number of justices. Currently the United States Constitution does not list any limits to the amount of justices. The most that have been appointed was 10 and the least have been six justices.
The Supreme Court has had nine justices since 1869, and since then that number has been only challenged once in 1937 when President Franklin Delano Roosevelt tried to increase the number of justices so legislation for his New Deal programs would have a better chance at passing. Roosevelt was unsuccessful in his attempt, but if a Democrat wins the presidential election and Democrats keep control of the House of Representatives and gain the majority in the Senate, they could change the number of justices.
However, court packing is not a widely accepted option by the Democratic party. Democratic presidential nominee Joseph R. Biden Jr. said last year that he believed packing the court would hurt our democracy later. It was a sentiment shared by the late Ginsburg. The problem is that the next time Republicans are in a position of power, they can also add a justice and that just creates an environment of ideological manipulation where one group is making sure the outcome will be in their favor.
The odds of the current president nominating someone who would be a good compromise between the two parties was extremely low given both his track record and the fact that he openly said he wanted to make the Supreme Court a conservative majority in order for the court to declare he won the election if he lost. Sen. Mitch McConnell, the majority leader, is expected to confirm the president’s pick, which will make it official. While Barrett’s nomination may feel like a loss, most Democrats have made it clear that they will not give up without exhausting every option.