Although the Supreme Court justices chose not to take up two petitions for review submitted…
Ginsburg’s death shakes up presidential race, court’s ideological balance
On matters of concern to the Catholic Church, from abortion and religious liberty to health care and immigration, the death of Supreme Court Justice Ruth Bader Ginsburg and the prospect of a bruising political fight over replacing her create a volatile mix of new possibilities along with new uncertainties.
One thing seems clear: President Donald Trump’s declared intention to move ahead on a successor to Ginsburg propels the question of the Supreme Court’s future smack into the middle of this year’s presidential campaign.
Vice President Mike Pence spoke more truly than he or anyone knew at the time when, in a Christian Broadcasting Network interview shortly before Ginsburg’s death, he said “the destiny of the Supreme Court is on the ballot in 2020.”
Ginsburg, who died Sept. 18 of pancreatic cancer at the age of 87, was named to the Supreme Court in 1993 by President Bill Clinton. Her legal resume before that included serving as general counsel and a board member of the ultra-liberal American Civil Liberties Union.
In her 27 years as a justice, she earned recognition as a liberal icon for her stands on issues such as abortion and gay rights as well as various civil liberties concerns. Her death has touched off an escalating, rancorous, profoundly politicized struggle over choosing a successor — not only who that will be, but by whom and when the choice will be made.
From a strictly constitutional perspective, Trump has the authority to nominate someone as long as he is in office. But Democrats, bitter over Senate Republicans’ refusal four years ago to consider a late-term Supreme Court nominee of President Barack Obama and hoping they will retake both the White House and the Senate in November, are strongly opposed.
Trump has promised to name only pro-life justices. Earlier this month, he released a list of 20 new candidates he would consider, just as he did when running for president four years ago.
Democratic presidential candidate Joe Biden has not published such a list up to now, but he has said that if elected he would choose an African American woman.
In his first term so far, Trump has named two justices — Neil Gorsuch and Brett Kavanaugh. With Justices Clarence Thomas and Samuel Alito, they make up the court’s current four-member conservative bloc.
Until her death, Ginsburg was part of a four-member liberal bloc along with Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. During the court’s last term, Chief Justice John Roberts emerged as its de facto swing vote, sometimes voting with the conservatives and sometimes with the liberals.
Amid the present uncertainty, the Supreme Court’s 2020-21 term will commence as scheduled Oct. 5 with a docket containing a number of issues at play in the fight over Ginsburg’s successor.
In November, for example, the justices will hear a new challenge to the constitutionality of the Affordable Care Act, Obama’s signature government health insurance plan. And Nov. 4, the day after Election Day, they will hear arguments in a case featuring a clash between religious liberty and LGBTQ rights. In that case (Fulton v. Philadelphia) Catholic Social Services of the Philadelphia archdiocese contests a decision by the 3rd U.S. Circuit Court of Appeals upholding the city’s action in forcing the Catholic agency out of the foster care field for not placing foster children with same-sex couples.
The questions raised by the case extend beyond its immediate facts and test which way the Supreme Court will swing in future clashes between religious institutions and LGBTQ claims. As such, Fulton has already attracted much interest along with a large number of friend-of-the-court briefs.
A joint brief by the U.S. Conference of Catholic Bishops and the Pennsylvania Catholic Conference says the fundamental question is “whether churches and other religious organizations can continue to provide critical human services … without surrendering their religious beliefs.”
Abortion also appears likely to return soon to the court’s agenda in cases involving laws requiring pre-abortion ultrasound testing or banning abortions after some designated point in pregnancy.
Among other things, the new cases may shed light on what appeared to be an implicit invitation from Chief Justice Roberts. In a decision back in June, Roberts joined the court’s four liberals in overturning a Louisiana law requiring doctors who do abortions to have hospital admitting privileges. But his concurring opinion, he suggested he might come down on the other side where a different law was involved.
For the long run, though, overshadowing particular matters before the court is the question of who will be making the decisions in years to come. In that regard, it is important to bear in mind that — assuming the chief justice continues to function as swing voter — another conservative Trump appointee would give the conservatives a 5-3 advantage, while a liberal Biden replacement for the liberal Ginsburg would leave the present 4-4 ideological split intact.
That realization has given rise to speculation that, if the Democrats take control of both the White House and the Senate in November, so-called “court packing” — increasing the number of justices beyond the present nine to give one side an insuperable advantage — might again become an issue.
Russell Shaw is a contributing editor for Our Sunday Visitor.