Supreme Court Justice Ruth Bader Ginsburg died on Sept. 18, 2020, and there was nearly no time to mourn. Discussion and speculation over her replacement on the Supreme Court dominated the national news cycle before she was even in the ground. Most pundits believed correctly that it would be Judge Amy Coney Barrett of the U.S Court of Appeals for the Seventh Circuit, who President Trump formally nominated on Sept. 26.
Barrett has attracted attention for her seemingly more conservative views compared to Ginsburg. She wrote a lengthy dissent in the 2019 case of Kanter v. Barr approving of “virtue-based restrictions” on voting and jury service but not on gun ownership, and signed on to a newspaper advertisement calling to overturn Roe v. Wade in 2006. If she is confirmed to the Supreme Court, many say it would further tip the balance of power in the judiciary toward conservatives. And with issues of key importance to voters coming before the court soon, including the Affordable Care Act (ACA) and, potentially, the results of the election itself, the confirmation of Judge Barrett is a daunting prospect for some, as well as a key reason to get out the vote this November.
For Tufts junior Max Price, who helped organize the vigil in Justice Ginsburg’s memory, the legitimacy of government institutions, including the court, is central in his voting calculus this year.
“A lot is at risk in this election,” he said. “All of those institutions function only with the trust of the people, which is at all-time lows right now.”
Price said he knows little about Barrett herself, but he is not surprised by Republicans’ swift action to fill the vacancy, citing when Senate Republicans blocked the confirmation of Merrick Garland to the Supreme Court for nearly a year before Donald Trump took office.
“It wasn’t shocking to see the Republicans pivot from their position from 2016,” he said.
To earn the public’s trust, Price said, politicians must govern with “logical consistency,” of which Republican leadership in the Senate has lacked.
As such, Price believes the Republican party will face consequences at the ballot box.
“I think the election results will demonstrate that they’ve failed to earn the public’s trust,” he said.
Tufts Professor of Political Science Brian Schaffner agrees, but sees the court issue quite differently.
“The court is largely a non-issue for voters,” he said.
According to Schaffner, the new vacancy provides a unique opportunity for Republicans to increase lasting conservative influence in the judicial system.
“If you’re the Republican party, you’re basically looking at what right now looks like you’re going to get creamed in this election,” he said. “The one thing [Republicans] can do is make sure you have good representation on the court for years to come … especially if it doesn’t really matter for whether or not they’re going to lose this election badly.”
Schaffner’s research into public opinion has shown that undecided voters are not likely to consider the Supreme Court when casting their ballot.
“The people who are undecided at this point are not the kind of people who pay attention to things like Supreme Court confirmations,” he said.
But that may change as the prospect of overturning the ACA approaches. The bill, which is coming before the Court on Nov. 10 under the case of California v. Texas, remains popular despite years of opposition from Republicans. The bill has come up before the Supreme Court before and been narrowly upheld, but its prospects under a more conservative court are dimmer.
“Health care is always a big issue for Americans,” Schaffner said.
The ACA matters for swing voters, too. Barrett, in her confirmation hearings this week, suggested the ACA may be safe, but also conspicuously dodged a question asking whether Medicare was even constitutional. As the election and California v. Texas comes closer, Schaffner said Democrats are likely to focus on the ACA.
“You’ll see the democratic ticket really focusing on that aspect,” he said.
But Price is more concerned with the potential long-term ramifications of Barrett’s nomination. Things like discrimination protections as well as voting and reproductive rights matter more to Price than any kind of electoral repercussions.
Another Tufts faculty member, former Associate Justice of the Massachusetts Superior Court Dennis Curran, urges against a rush to judgment. Curran has seen firsthand the rigor of the judicial confirmation process and, furthermore, has faith in the judiciary.
“When an individual raises their right hand to God … they take an oath to God to faithfully execute the laws of the United States,” he said. “That means you put aside your personal preference.”
Curran is also not convinced that Roe v. Wade will be overturned with Barrett’s nomination. He cited a talk at Jacksonville University in 2016 when Barrett was still a professor at Notre Dame Law School.
“She only sees the Supreme Court nibbling around the edges [of abortion rights]. She did not predict a wholesale overturning or reversal of Roe v. Wade,” Curran said.
Curran says the Court “strives for unanimity,” noting there have been more unanimous decisions in the past five years than five-to-four decisions.
When it comes to the current discourse around the Court, Curran is worried.
“They’re the last place we turn to for our trust,” he said. “If we lose our courts to these political assassinations, it’s over.”
Schaffner too acknowledges the subsection of voters who follow the court do increasingly perceive it and approve of it on partisan terms. Curran blames this on legislators in the House and Senate, who leave legislation deliberately vague, figuring that “they’ll throw it to the courts and the courts will handle it.” This refusal to craft clear policy, Curran said, creates a vacuum the judiciary must fill, increasingly having to rule on the legality of legislation, effectively legislating from the bench.
One solution proposed to this partisan debate has been to “pack” the courts — expanding the number of justices to equalize the balance of power or even tip it in the other direction. Massachusetts, in fact, is home to some of the practice’s staunchest advocates like Sen. Ed Markey and Rep. Joe Kennedy III. This is easy for the government to do — the court can be expanded using simple legislation, with no need for sweeping constitutional changes.
Curran abhors this prospect.
“It’s a very bad idea,” he said. “You just don’t change the rules of the game.”
Another potential fix to the issue is term limits: limiting the amount of time that justices are permitted to serve on the Court. The legality of this measure is more questionable, but Curran is more open to it. He believes in the need for “younger blood in the judicial system.” He added that judges tend to overstay their welcome.
“A lot of [judges] just get enamored with the power,” he said.
Judges, Curran said, should adhere to the mantra of “leave them wanting you.”
Schaffner is open to both reforms. He thinks one reason the Court feels so opaque is because of justices’ long terms on the bench.
“You appoint somebody and they’re there for 40 years. It just doesn’t come up that often, and we don’t talk about it that often,” Schaffner said. “Actually going through this process more frequently would help bring more attention to the Court and the difference it makes … and it would be nice to have more justices as well.”
For now, the Court languishes in relative obscurity compared to the rest of American politics. It remains the figurehead of a branch of government unaccountable to the people and coated in dense language that few outside of law school are willing to really put in the time and effort to get to know.
“You have to be there to understand it,” Curran, who is teaching Constitutional Law this semester, said. “And, I suppose the next closest thing to being there is taking my course.”