• Thu. May 30th, 2024

Ginsburg v. Barrett, an open seat on the US Supreme Court

ByRufus Lee-Browne

Oct 11, 2020

The untimely death of Supreme Court Justice Ruth Bader Ginsburg would at any other point in time be the sole, contentious focus of American politics. 

Instead, it has joined the US government’s deadly handling of the Covid-19 pandemic, President Trump’s indignant performance at the first Presidential debate, and now his positive test for the virus that could undermine his campaign in creating a volatile cocktail of politics roiling the nation.  

Justice Ginsburg, the diminutive octogenarian, was a herald of feminism, characterised by her trademark collar – which, she explained in 2009, incorporated “something typical of a woman” into a uniform designed for men – and left behind a profound legacy. 

Ginsburg was often on the winning side on the most pressing cases for liberals, on issues of abortion, affirmative action and gay rights – which has only made Trump’s attitude towards filling the late justice’s seat with Amy Coney Barrett, in some respects Ginsburg’s ideological antithesis, so controversial.  

For some, Barrett is also an epitome of American feminism: a woman who has excelled at the peak of a demanding profession, even as she prioritises her own family and pious beliefs. 

For others, her judicial philosophy, steeped in her staunch Catholicism and influence from her mentor, the late conservative Justice Antonin Scalia, could create an existential threat to the bank of liberal legal principles Justice Ginsburg worked to cultivate during her time as a litigator and Associate Justice. 

If successful, Barrett’s nomination would mark a new move to the right in American jurisprudence. Her writings as an academic, and brief stint as a Federal judge, have amassed to a uniformly conservative résumé. 

She has adapted a lot from Justice Scalia’s judicial tenets, that the Constitution has little to say on issues such as healthcare and abortion rights. Instead, this line of thinking goes, it should be up to individual states to regulate these issues.  

The nomination process has laid bare the most striking divisions in American politics. 

“If these issues were left to the states, we would only have more fragmentation in our country,” one American studying at the University of Edinburgh told The Student.  

For Alexandra Goetz, President of Democrats Overseas at the University of Edinburgh, there is a certain irony in this line of conservative legal thinking. “I don’t get this concept that the idea of any Islamic law being enacted anywhere in the world, even if it’s in no way invasive, scares American conservatives six ways from Sunday, but if it’s Christian law that’s good for everybody,” she said.  

The brazen GOP effort to rush through Judge Barrett’s nomination weeks before Election Day is reflective of both Trump’s penchant for rule-breaking, and the desire to establish a long-term conservative stand in the highest court. 

For Senate majority leader Mitch McConnell, while elevating issues such as abortion in the public sphere is placing his Senate majority in an increasingly precarious position, years more of a conservative judicial rule is potentially worth more than a win this November.  

This is precisely what worries Democratic critics, who have repeatedly asserted that Amy Coney Barrett would not flinch in overturning Roe v. Wade, the landmark legal case that guaranteed rights to abortion for women. 

What seems to worry younger American voters, of which there are an additional 15 million since the last Presidential election, is that they will arguably be the most affected by lasting rulings of the next Court, with little account for democracy.  

“Who knows what the next 40-50 years of my country will look like,” said the same American student, “[Trump’s] policies and views will continue to affect the country regardless of whether he gets re-elected or not.”  

According to recent polls aggregated by FiveThirtyEight, an average of 52 per cent of respondents agreed that Justice Ginsburg’s seat should be filled by the winner of the election, while only 32 per cent said that Trump should fill the seat now. 

The added facet of filling the vacant seat on the court has only seemed to galvanise Democratic voters, and push the undecided towards voting for Vice President Joe Biden.  

“This is going to mean a lot to a lot of people – if you have a pre-existing condition, are a woman, or BAME, there’s a lot on the line here,” added Goetz.

She noted that Democratic fundraiser ActBlue recently experienced a surge in donations, netting $91 million in the first 28 hours following Justice Ginsburg’s death. 

“People are angry and scared, and that certainly translates to political participation and engagement.”  

A successful confirmation may play well for Trump should the election result be contested at the Supreme Court, but the ensuing political fight has only highlighted Trump’s liking to bend long-established norms for what seems like myopic political gain. Barrett’s nomination attests to Trump’s instinct to appease an overwhelmingly white and largely male base of support, and is unlikely to bring on any new votes.  

“Most voters know which side each candidate is on, and that’s why there is record low undecidedness this year,” Goetz added. 

“They know from the polling that they aren’t going to win if they play by the rules.”

Image: Getty Images