The Supreme Court: How We Got Here And What Happens Next

The Death Of Ruth Bader Ginsberg Has Given An Already Tense Election Even More Severe Stakes. Here’s What’s Worth Knowing

Ruth Bader Ginsburg/ Vox/Getty Images

• Tristan Young @talltristan

With the death of Ruth Bader Ginsberg the coming US election, that was already being monitored with a morbid anxiousness that only the second coming of neo fascism can muster, has taken on a new nexus of dread as the ensuing battle over filling her seat on the Supreme Court portends a catastrophe of generational proportions for hundreds of millions of people. The derelict, structural insanity of a system whose appetite for affording or cruelly rescinding basic human rights being determined by the health or lack thereof of an 87 year old cancer patient has been laid acutely bare like never before. The extent to which RBG has been lionized as feminist hero- well earned as it is- is also partly due to the fact she, a small frail person, was seemingly one of the last true bulwarks against a dystopian reconfiguration of how one of the largest communities in the world will treat each other, or what the word community even means in a land that has become increasingly hostile to the idea of it. 

Now that she’s gone that reconfiguration is potentially at hand, depending on how things go in the senate; which is to say we know exactly what is going to happen. Acting in stunningly hypocritical fashion that few living public figures on the planet can so casually muster, Senate Majority Leader Mitch McConnell released a statement mere hours after RBG’s death that he intends to support President Trump fill her seat on the court before the election. This is the same ghoulish man that in 2016 approached the situation with the exact, literal opposite logic when it was President Obama who had the opportunity to fill the late Antonin Scalia’s seat at the time of his death.  McConnell’s- the self proclaimed grave keeper of the senate, where legislation goes to die- reasoning for blocking Obama’s nomination of Merrick Garland? It was February of 2016, 9 months away from the eventual election contest between Trump and Hilary Clinton. McConnell argued that it being so close to the election (9 months isn’t that close my dude!) the American people should have a say in who nominates the next Supreme Court Justice, and therefore the nomination should be under the purview of the next elected president, which ended up being Trump.

This is, while not constitutional malpractice in the strictest reading, pretty morally onerous, which is extremely on brand for McConnell. However, if one wants to conduct themselves on the lines of a constitutional evangelist as McConnell claims to, the American people already did have a say. In 2012 they re-elected Obama, by considerable margins no less, for another 4 years. Within those 4 years all matters of the presidency were within his jurisdiction including Supreme Court nominations. But while Obama did indeed nominate Garland there was nothing stopping McConnell, who sets the senate floor agenda, from simply refusing to hold a vote, or even debate on appointing him. As such the seat on the court remained vacant for over a year until a newly inaugurated Trump nominated Neil Gorsuch who was swiftly confirmed by a majority republican senate in early 2017. Since then he has nominated and through the same McConnell senate appointed another Supreme Court Justice, Brett Kavanaugh. Kavanaugh was credibly accused of sexual assault and displayed an appalling lack of temperament during his confirmation process, but was rammed through by the senate anyways. 

With two conservative justices added to the court in the Trump years, the split became 5-4 conservative/liberal. With a majority conservative court for the last several years, absolutely integral issues pertaining to voting rights, abortion rights, campaign finance regulation, and so many others have been at risk of being curtailed or eliminated on behalf of the entrenched orthodoxy of racist and culture war oriented republican agendas. Some of the most egregious attacks on these fronts have at times failed due to their explicit malice and also that Chief Justice Roberts’ particularly dogmatic adherence to constitutional norms occasionally supersedes his own affiliation to the republican agenda. With RBG’s seat now vacant Trump has the opportunity to add yet another conservative judge to a life time appointment. A 6-3 conservative majority on the court will alter the shape of things to come in America for decades. Under such circumstances we likely can no longer count on the occasional lip service to basic jurisprudence preventing irrevocable harm from being done.

Of course McConnell is still the Senate Majority Leader and all logic and understandings of how things like decency and shame works would dictate he apply the same (very made up) rule he applied to Obama 4 years ago regarding nominating a new SC Justice during an election year. If 9 months prior to the election was far too soon to pick a new Justice, surely less than 2 months before election day would be a non starter, yes? Apparently no- this is Mitch McConnell we are talking about, and he is absolutely fine with ignoring his own rules that short circuited the senate as long as it suits him to do so. This is a historic characteristic of the Senate Majority Leader; a nihilistic acolyte of the very nature of power itself, there is no ideology, or understanding of common decency that will stop him from further entrenching his party within it. That he so willing to force new standards into existence and then discard them at first opportunity illustrates clearly the arguments he used to defend them were offered in bad faith. He never believed what he said and we took him at his word at our own peril. McConnell has lazily offered an attempted reasoning for his staggering reversal. Arguing that as the people had elected Trump and re-elected the senate in 2016, and then expended their senate majority in 2018, they have a clear mandate to fill the seat at their behest. This is laughably absurd. Trump lost the popular vote by 3 million people in 2016. There are 53 republican senators to 47 Democrat senators, even though a full 15 million more votes were cast for the democrats in 2016. It is not a popular vote or the will of the people that have given McConnell or Trump any kind of mandate, but the skewed fallibility of the electoral collage and hyper partisan gerrymandering. McConnell doesn’t need the will of the people, in fact he seems to openly detest it.

Senate Majority Leader Mitch McConnell/ Politico

However he does need the votes of his republican colleagues in the senate to confirm whomever it is Trump nominates to replace RBG. Will any of the republicans in the senate, so virtuous in their signalling towards their commitment to morality and values stand in the way to this blatant high jacking of the democratic system? Let’s check out some key players. First and certainly least fun to discuss is senate chair of the Judiciary Committee and famously pathetic Trump sycophant Lindsey Graham from South Carolina. It’s been a lot of fun re-watching footage of him in 2016 arguing that a president- no matter whom they are- should not be able to nominate a new SC Justice in an election year. He was so ardent on the principle of the matter he even encouraged people to remember his words and use them against him should the tables ever be turned during a potential republican presidential administration in the future. Now that the tables are exactly turned as he pondered, is he sticking to *checks notes*, ah yes- his very own words about the limits of presidential appointments? He is not; Graham has stated he will support Trump nominating a new SC Justice before the election. As Graham is head of the Judiciary Committee he will play a key role in setting the agenda and terms of the coming confirmation process. Coming form a noted partisan like Graham, is this surprising? No. Does that make your blood want to boil any less? Also hell no. 

Another fun one is North Carolina Senator Thom Tillis who released a statement saying he will support Trump’s nominee. Note that he didn’t just say he supports Trump nominating someone, but already specifically plans to vote for the eventual nominee, even without knowing who it will be. This is the kind of cult like and sheepish obedience that engendered Trump to believe he could shoot a person on 5th avenue and not lose any supporters. Alaska Senator Lisa Murkowski has bucked the republican trend however saying she does not support a nomination until after Election Day, presumably in deference to the eventual winner. This seems noble enough but there is one very big fucking problem here: there is still a roughly 10 week period between the November 3rd election and the January 20th inauguration of whoever wins. If Trump loses in November, even if McConnell loses his majority in the senate- as clear a sign as is possible the American people don’t want them in charge- it would still be procedurally impossible to stop them from carrying on with a nomination and vote until they are replaced in the new year. This would be clearly very evil, and also absolutely something they will do. So not good enough, Murkowski. 

Maine Senator Susan Collins went a slight step further suggesting there should be no vote prior to Election Day, and that only the winner of the contest should nominate RBG’s successor. This a little better! The problem is Collins has severely tarnished her reputation in recent years as a level headed moderate by being increasingly feckless and compromised, with little in her political tool set beyond bland and naïve aphorisms. Many eyes were on Utah Senator Mitt Romney, former presidential candidate and one of the last potential republican vanguards for operating the senate as a body based on rules and consistency. While rumours quickly cropped up that he may oppose the vote, they have proved to be unfounded. As of September 21st he has gone on record to say he will support holding a vote for Trump’s nominee. It’s hard to navigate the dissonance in Romney’s actions, as he is the only republican senator to vote to impeach Trump in the Ukraine extortion scandal, yet feels Trump still has legitimate cause to nominate the next member of the Supreme Court. McConnell can only afford to lose three votes. Assuming every democrat senator is united in opposition that would split the vote 50/50 at which point Vice President Pence would cast the tie breaker in favour of Trump’s nominee. With Romney in the bag the likelihood of four republican senators going against Trump and McConnell is unlikely.

It’s also worth noting, if only for a masochistic attraction towards infuriating political takes, that republicans are arguing it’s too problematic to leave an empty seat resulting in a 4/4 split in the Supreme Court during an election, as the contest could be so close it may be up to the court to decide things as in the 2000 Bush V. Gore incident. This talking point is damn near incendiary in it’s revisionism as that is precisely what the republicans did by leaving Scalia’s seat open during the 2016 election. Anyone who offers such rhetoric is not doing so in good faith. 

That’s where we are at. So what if, anything, can democrats do in the face of McConnell stealing the court any further than he already has? Firstly it does needs to be acknowledged how desensitizing and dehumanizing it is that we cannot even properly mourn Ginsberg before shifting into pure tactical mode. She deserves better. However such luxuries are long past, especially in the face of adversarial public figures that hold no reservations about being so craven. The utopian notions of ‘going high when the go low’ are over. There are options, but they are mostly reactionary as opposed to pre-emptive. Sure there are some procedural hurdles the democrats within the senate can throw up in the process to slow down the nomination, but not by much and not for long. Democrat presidential nominee Joe Biden, with his less and less endearing nostalgia for bi-partisanship has appealed to the conscience of republican senators, imploring them in the strongest terms to reconnect with their morality and not allow such blatant manipulation and corruption to take place on their watch. Recent history dictates this is unlikely to work.  

Democratic Presidential Nominee Joe Biden/ Politico

The suite of options and manoeuvres open up in more interesting ways but only if Biden not only wins the election but the democrats flip the senate. This will be difficult, but not impossible. Of the states in play more of them are favourable for democratic pick-ups than republicans, but it’s by no means guaranteed. Playing along with the hypothetical however, there are litanies of things Biden can and should do. Firstly, the filibuster absolutely must be eliminated. The senate filibuster ensures that for any legislation to be passed it requires not merely a majority of 51 votes, but a super majority of 60 votes. This is logistically impossible to achieve in America’s current form. With the country so fiercely polarized it’s inconceivable to think of either party holding 60 plus seats in the senate and with the runaway partisanship within it, it is exceedingly rare for senators to cross the isle on votes. This only applies for passing legislation, not for confirming judges- even Supreme Court Justices- which requires only a simple 51 vote threshold. This is of course total bullshit. It takes 51 votes for a lifetime appointment with tectonic implications for the nation, but 60 for even the most benign of updates to current laws. Get rid of the filibuster.

Opponents of this option, of which there are many in both parties, argue that doing so is yet another norm shattering tactic that will render the once storied institution that is the senate further unrecognizable. In reality, the filibuster, regardless of it’s tactical application by both parties over the decades, was a procedural tool to give smaller rural states with a majority white population a leg up on exerting their (minority) rule over more populous and diverse states. As Obama recently pleaded, it is a relic of the Jim Crow era. Even so, not every democrat is on board as California senator Diane Feinstein has recently come out in opposition to eliminating it. Biden, should he win the white house and his party take the senate will likely have precious few votes to spare, but getting rid of the filibuster is necessary to put the next steps into motion. Sadly, Biden himself, while so far surprisingly self aware in the necessity to accommodate the energy on the left, has signalled a reluctance for such a move. Again his misplaced nostalgia for a more functional and halcyon version of the senate appears to be hampering his tactical adventurism, possibly to his determent. He should reconsider on the filibuster. 

Doing so opens up a pathway to the next option that will be critical: voting on statehood for D.C. and Puerto Rico. It’s insane that D.C. is not a state. Its residents pay taxes, and are included in eligibility for military services- pretty much the only two truly important metrics for determining admission into the Union proper. The population of D.C. is at 700 000, larger than Vermont and Wyoming. Republicans have prevented it from happening on purely callous and tactical terms. Their rationale is that D.C. and Puerto Rico statehood would result in 4 more likely democratic senators and would exclude them from ever having a majority again. Firstly the math is just wrong as that would result in 53-51 senators still in favour of the republicans in the senate’s current form. Secondly, that rather pithily dressed argument side steps the reason that both potential states would only likely have democratic senators because the republicans have spent a generation being so shitty to them. These states could absolutely be in play for both parties if republicans hadn’t demonized them as corrupt Washington insiders or undesirable immigrants. In the case of D.C. it’s especially appalling as the so called Washington upper class elite makes up roughly 6 percent of D.C., the rest being average Americans that absolutely deserve representation. It further conveys an uncomfortable truth of the Republican Party, that their power and influence is predicated on limiting democratic representation as much as they can and wherever they can. Their polices and agendas are nationally unpopular, they can only hold on to the power to enact them in defiance of the will of the people 

The circumstances of Puerto Rico are a bit trickier. Should they be offered state hood if they want it? Absolutely yes. But putting aside the calculations of how to salvage the Supreme Court, what should be undoubtedly offered to Puerto Rico first is the right to self-determination. As an island victimized by the colonial ambitions of America, it has the right to be it’s own sovereign state first and foremost, to hell with the democrats getting two more senators on their bench. If they want to join the Union, then they should be welcome, but it’s important to understand that crucial distinction and how it affects the residents of Puerto Rico. It’s also important to acknowledge that these tactics, eliminating the filibuster and updated statehood, are not ‘Armageddon’ or ‘total war’ tactics as they are being described in the media at times. Nor are these ideas only important through the optics of RBG and the Supreme Court. Even before she died, and independent of the judiciary, these have always been the right things to do. 

Another option exists, one that some call more extreme: packing the court. If McConnell wants to make up a rule that says a president- say Obama- can’t pick a new SC Justice during an election year- sure ok. If he wants to completely ignore that rule that he so vigorously proselytized, now that it’s his guy that has the opportunity- fine, great. Democrats that are thumbing McConnell’s face in this own hypocrisy are idiots if they think that is going to stop him or even slow him down in the slightest. If he wants to play hard ball, then play hard ball. With the filibuster eliminated it would take a simple 51 majority to not only confirm new Justices, but also add additional seats to the Supreme Court. Biden should do that. If trump gets his third nominee through the court becomes 6-3 conservative. By adding another 5 seats to the court and spending his administration filling all of them it would become an 8-6 split on the side of the democrats. McConnell, Graham, Ted Cruz, Fox News, much of Twitter, all of them will piss and moan louder than they ever have before, and all Biden and the democrats have to do is ignore them. It will be easy, it might even be enjoyable. If McConnell wants to blow up the senate in terms of norms, he is going to make the democrats very desperate. Depending on how things go in November, he might not be happy he did.