Ginsburg death sets up battle over future of court

Justice Ruth Bader GinsburgRuth Bader GinsburgNYC street and subway signs transformed to welcome Biden, bid farewell to Trump Schumer and McConnell trade places, but icy relationship holds Schumer becomes new Senate majority leader MORE, the liberal leader of the Supreme Court, died Friday at the age of 87, less than two months before an election that is likely to decide the future of the Supreme Court for at least a generation.

About an hour after a court spokesperson confirmed Ginsburg’s death from pancreatic cancer, Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellTrump selects South Carolina lawyer for impeachment trial McConnell proposes postponing impeachment trial until February For Biden, a Senate trial could aid bipartisanship around COVID relief MORE (R-Ky.) vowed that he would hold a Senate vote on her replacement if Trump names a new Supreme Court nominee.

Senate Minority Leader Charles SchumerChuck SchumerNRSC chair says he'll back GOP incumbents against Trump primary challengers Schumer becomes new Senate majority leader US Chamber of Commerce to Biden, Congress: Business community 'ready to help' MORE (D-N.Y.) maintained that the vacancy left by her death should be filled by whoever wins in November.


"The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president," Schumer tweeted.

Top Senate Republicans as recently as this summer have said they would confirm a new justice if given the chance despite 2020 being an election year, a reversal of their rationale for blocking former President Obama’s nominee late in his second term.

Trump, for his part, unveiled a list of 20 additional judicial prospects earlier this month that he said would consider nominating to the bench. At the time, Trump’s strategy appeared aimed at energizing GOP voters, but the Supreme Court vacancy created by Ginsburg's death fundamentally altered the political calculus.

In blunt terms, Trump now has a chance to transform the Supreme Court from a fragile 5-4 conservative majority into a commanding 6-3 conservative supermajority, which could have long-term implications that affect the day-to-day lives of everyone in the country. 

The result could be that relatively stable areas of law — over issues like gun control, abortion and voting rights — are loosed from their legal moorings, giving conservative groups an opportunity to roll back liberal gains and further their own legal agenda.


The move would push the court’s fulcrum to the right of its current ideological center, Chief Justice John Roberts, whose stewardship of the court is seen by some conservatives with increasing skepticism.

In the term that ended in July, the Roberts Court dealt major blows to cherished conservative causes. On narrow margins, the court struck down a Louisiana abortion restriction, blocked the Trump administration from ending an Obama-era deportation shield for young undocumented immigrants and extended federal anti-discrimination workplace protections to LGBT people.

But if Trump wins another four-year term, he faces the possibility of choosing a successor to liberal Justice Stephen BreyerStephen BreyerLIVE INAUGURATION COVERAGE: Biden signs executive orders; press secretary holds first briefing Sotomayor dissents to latest federal execution, calling it 'justice on the fly' Supreme Court rules Trump administration can enforce rule requiring abortion pills be obtained in person MORE, 82. Replacing both Ginsburg and Breyer would give Trump the chance to hand conservatives a powerful 7-2 majority on the bench.

The next oldest member is conservative Justice Clarence ThomasClarence ThomasLIVE INAUGURATION COVERAGE: Biden signs executive orders; press secretary holds first briefing Trump eyes lawyer who spoke at rally to help in impeachment trial: report Biden's identity politics do a disservice to his nominees MORE, 72, the longest-serving member of the current court and whose 28 years on the bench is longer than the typical justice’s tenure, though his friends and colleagues say he has no plans to step down.

The president’s new list of Supreme Court candidates includes a half-dozen former clerks of Thomas, a reflection of the staunch conservative’s growing clout in the Trump era and the president’s commitment to nominating replacements in his likeness.


“The 20 additions I am announcing today would be jurists in the mold of Justices Antonin Scalia, Clarence Thomas, and Samuel AlitoSamuel AlitoLIVE INAUGURATION COVERAGE: Biden signs executive orders; press secretary holds first briefing Barrett hears climate case against her father's ex-employer Shell Supreme Court rejects Christian school's push for COVID-19 carve-out MORE," Trump said during Sept. 9 remarks in the Diplomatic Reception Room of the White House.

The records of Thomas and Alito, like the late Scalia, who died in 2016, are generally seen as falling to the right of the court's other conservatives: Roberts and Trump’s two nominees, Justices Neil GorsuchNeil GorsuchLIVE INAUGURATION COVERAGE: Biden signs executive orders; press secretary holds first briefing Biden to introduce Garland as attorney general, other top DOJ nominees Biden to name Merrick Garland for attorney general MORE and Brett KavanaughBrett Michael KavanaughLIVE INAUGURATION COVERAGE: Biden signs executive orders; press secretary holds first briefing Harris to resign from Senate seat on Monday Why we need Section 230 more than ever MORE.

Updated at 10:03 p.m.