Ruth Bader Ginsburg’s journey, both as a lawyer and a Supreme Court judge, was marked by milestones, each another step towards equality before law, and of opportunity. Her death last week has sparked a political storm- defying convention, President Donald Trump and Republicans in the US Senate are trying to nominate and confirm her successor, a conservative jurist in all likelihood, in an election year.
As a lawyer for the American Civil Liberties Union, Ginsburg led the charge in a series of cases that guaranteed greater gender equality, including equal pay and abortion rights. As a judge, she was known as much for her judgments as her dissenting opinions. In United States v Virginia, Ginsburg wrote the majority opinion, which ended the Virginia Military Institute’s men-only admission policy. In Bush v Gore in 2000, her eloquence then was substituted with the impact of brevity. She wrote, simply, “I dissent”.
Unlike in India, there is no retirement age for an American Supreme Court judge. It may appear, then, that if Trump succeeds in appointing a conservative replacement for Ginsburg, many of the principles she fought for could be under threat.
The potential consequences from the passing of Ruth Bader Ginsburg, Supreme Court justice and liberal legal icon, will start immediately, beginning in the election campaign that determines whether Donald Trump gets a second presidential term.
Alexander Panetta writes for CBC News about the potential changes prompted by her death:
An overheating election
It's been distressingly common to hear this election described as a do-or-die moment for American democracy.
It was the theme of Barack Obama's speech to the Democratic convention. Meanwhile, figures inside the Trump administration, and close to the president, and on talk radio, have evoked scenarios of post-election violence.
There are books, essays and newspaper articles in which political scientists sound alarm bells about the durability of the American republic.
Which is to say this election was already heated enough, with a president insisting he's being cheated, legal fights over mail-in voting, deaths at protests and armed demonstrations.
"I'm genuinely worried," Pulitzer Prize-winning American historian Joseph Ellis said in an interview Saturday.
"The fate of the republic [has not been] genuinely at stake [since the Civil War].… I think we're in a moment analogous to that now."
Republican Sen. Marco Rubio tweeted that America will face its most difficult months in a generation, and asked for prayers for the country.
Conservative court dominance
The court recently had a 5-4 conservative tilt. It's now 5-3, and will be 6-3 if Trump gets his nominee confirmed.
The Supreme Court has gained power throughout American history, starting in the 19th century, in its interpretive role over U.S. law.
Now, as bitter partisanship makes it harder to pass bills in Congress than a few decades ago, parties frequently rely on courts to resolve political disputes.
One big case before the new, Ginsburg-less court involves a challenge to the law known as Obamacare- hearings are scheduled for Nov. 10 on the Affordable [Health] Care Act.
Obama's signature law, which extended health coverage to millions, appears in grave danger: the law survived one earlier challenge by a single vote.
Other cases this fall will touch on workplace benefits, and on the right of publicly funded religious institutions to exclude same-sex couples.
This court could even decide the presidential election.
In 2000, the high court ended a Florida recount and made George W. Bush president; the numerous fights this year over mail-in ballots could be far, far messier.
Longer-term battles are inevitable over abortion, and over myriad presidential executive actions. Take climate-change regulations and immigration rules.
Obama signed a flurry of such climate and immigration executive orders; future ones would inevitably be challenged in a more hostile court.
"It would be the strongest conservative majority we've seen," former U.S. federal prosecutor Joseph Moreno told CBC News.
"[Now you have chief justice] John Roberts potentially sometimes voting with the minority. [But with a change now] you'd have a potentially secure block of conservative votes.
"That would impact so many things in this country."
Other big changes could be economic. In his book, Supreme Inequality, author Adam Cohen argues that the U.S. Supreme Court has, for most of American history, favoured the wealthy and powerful, with a rare exception being the 1960s court led by Earl Warren.
He said the court has recently been a major driver of American inequality- stripping away union powers, allowing corporate money into politics and undermining the integration and funding of schools in minority areas. Page 1 of his book carries an anecdote about Bader Ginsburg: she wrote the dissent for the losing side in a case involving a Black woman subjected to racist abuse at work.
Overshadowing The US Presidential Elections 2020
The court fight threatens to overshadow the presidential election issue Democrats hoped to focus on: the pandemic, which has killed around 200,000 Americans.
It will play out, day after day, as voters cast ballots. Voting has already started. Ballots are being mailed out, and in-person polling stations are open in some states.
The Supreme Court has been a winning issue for Trump before. In 2016, more than a quarter of Trump voters told pollsters it was the reason they voted for him.
Trump cemented his alliance with social conservatives by vowing to name only conservatives to the court, and he took the unusual step of releasing a list of candidates in advance.
Some polling suggests a strong majority of Americans want to preserve, at least in part, the landmark abortion-rights decision Roe v. Wade.
Democratic donors certainly appeared energized: the party said it raised tens of millions of dollars in the hours after Bader Ginsburg's death.
In an inimitably American political phenomenon, both parties were actively fundraising upon the judge's death.
The Trump campaign released a similar message to supporters.
The sudden effect of this debate will likely resonate unevenly across the country, helping Republicans in some places but not others.
North Carolina's Thom Tillis, Kelly Loeffler of Georgia, and South Carolina's Lindsey Graham, who heads the justice committee in charge of the process, vowed to support a nomination immediately.
By contrast, Colorado's Cory Gardner dodged various questions on the topic and released a vague statement; Susan Collins of Maine said the presidential election winner should get to make the pick.
There's some reason for optimism for Democratic nominee Joe Biden: surveys in three smaller swing states this week suggested he's more trusted on court appointments than Trump.
Tussle at Capitol Hill
The power to pick judges rests with the president. The power to confirm them belongs to the Senate.
Right now Republicans control the Senate with 53 votes, to 47 Democrats and Democratic-leaning Independents.
Those numbers would not, until recently, have guaranteed confirmation: for generations, 60 votes were required for most major actions in the Senate, but because Congress is so frequently paralyzed, first Democrats, then Republicans, began chipping away at the so-called filibuster rule.
Now it takes a simple majority, of 50 or 51, to confirm a judge. And it will be close.
It can happen before or after the Nov. 3 election: the current Senate term lasts two months beyond the election, until Jan. 3, and the current presidential term lasts until Jan. 20.
It's taken an average of just over two months to confirm justices since the 1970s. It used to be faster, in less-partisan eras, and it could be faster again with the new simple-majority rule.
Democrats are vowing to put up whatever fight they can — with legislative delay tactics, threats of revenge if they regain the chamber and efforts to embarrass Republican senators in tough re-election races.
Both parties are calling each other hypocrites: Republicans for reversing themselves on their 2016 declaration that presidents shouldn't name a judge close to an election, and Democrats for reversing themselves in the other direction.
Yet Republicans likely hold the upper hand in this nomination battle. They controlled the Senate in 2016 and they control it now.
It foreshadows a clash over institutions
The Republican Party has won the popular vote in a presidential election precisely once since 1988. Yet it has a stranglehold over the Supreme Court.
Obama spelled out some of this agenda in his eulogy for the late civil-rights hero John Lewis: he called for full votes in Congress for Washington, D.C. and Puerto Rico, a new voting-rights law and an end to the Senate's 60-vote filibuster rule.
Many progressives want to go even further and expand the Supreme Court: meaning add new judges.
Biden has opposed the idea and said Democrats would come to regret it.
Nearly half the party's presidential candidates said they were open to it. Sen. Bernie Sanders has raised the idea of rotating judges between upper and lower courts.
The Democrat who leads the House of Representatives Judiciary Committee on Saturday said that if Republicans proceed with this nomination, Democrats should immediately move to expand the court should they win the Senate.
Democrats' leader in the Senate, Chuck Schumer, has left open the possibility of shifting to a simple majority vote on all bills if his party wins back the chamber.
Donald Trump's latest move to replace the late Supreme Court Justice Ruth Bader Ginsburg before the presidential election is an "abuse of power", his Democratic rival Joe Biden says.
Mr Trump has said he will nominate a woman to replace the longstanding liberal justice. Mr Biden has urged Senate Republicans to delay a confirmation vote.
Democrats fear Republicans will vote to lock in a decades-long conservative majority on the country's highest court.
The ideological balance of the nine-member court is crucial to its rulings on the most important issues in US law.
Mr Biden on Sunday said the president had "made clear this is about power, pure and simple".
"The United States constitution allows Americans the chance to be heard - and their voice should be heard... they should make it clear, they will not stand for this abuse of power," he said.
Mr Biden said that if he won the presidential election, Mr Trump's nominee should be withdrawn. He said he would then consult senators from both parties before putting forward his choice.
He has not named any potential nominees, but said his first choice "will make history as the first African American woman on the court".
Two Republican senators, Susan Collins and Lisa Murkowski, have backed a delay in the vote.
Maine Senator Ms Collins said she had "no objection" to the process of reviewing a candidate beginning now, but that she did not believe the Senate should vote on the candidate prior to November's election.
Alaska Senator Ms Murkowski said she "did not support taking up a nomination eight months before the 2016 election" and believed the "same standard must apply" now.
Both women have broken away from party lines in the past, including on issues like abortion rights. Ms Collins faces a tough re-election bid this year and is trying to defend her reputation as a moderate.
If they are joined by two more Republican senators, they could block or at least delay a confirmation vote, as the Republicans have a majority of only six in the 100-seat Senate.
In the event that the vote is a tie, the US constitution allows Vice-President Mike Pence to cast a tie-breaking vote.
To avoid that outcome, Senate Majority Leader Mitch McConnell is seeking to secure the support of Republican senators. He has already won the backing of Republican Senator Lamar Alexander, who was viewed as a potential swing vote.
Donald Trump is moving toward nominating Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg on the Supreme Court, according to people familiar with the matter, despite the president saying Monday he’s considering as many as five candidates.
Barrett met with Trump and separately with White House Counsel Pat Cipollone on Monday, said people familiar with the discussions.
Amy Coney Barrett, a devout Catholic, is hailed by religious conservatives and others on the right as an ideological heir to conservative icon Antonin Scalia, the late Supreme Court justice for whom she clerked.
Liberals say Barrett’s legal views are too heavily influenced by her religious beliefs and fear her ascent to the nation’s highest court could lead to a scaling back of hard-fought abortion rights. She also would replace the justice who is best-known for fighting for women’s rights and equality.
President Donald Trump has said he’ll nominate a woman and Barrett is thought to be at the top of his list of favourites. The Chicago-based 7th U.S. Circuit Court of Appeals judge was considered a finalist in 2018 for Trump’s second nomination to the high court, which eventually went to Brett Kavanaugh after Justice Anthony Kennedy retired. Barrett’s selection now could help Trump energize his base weeks before Election Day.
She first donned judges’ robes in 2017 after Trump nominated her to the 7th Circuit.
But she wouldn’t be the only justice with little prior experience as a judge: John Roberts and Clarence Thomas spent less time as appellate judges before their Supreme Court nominations and Elena Kagan had never been a judge before President Barack Obama nominated her in 2009.
Barrett mentioned Kagan when asked in a White House questionnaire in 2017 about which justices she admired most, saying Kagan brought to the bench “the knowledge and skill she acquired as an academic to the practical resolution of disputes.”
When Barrett’s name first arose in 2018 as a possible Trump pick, even some conservatives worried her sparse judicial record made it too hard to predict how she might rule. Nearly three years on, her judicial record now includes the authorship of around 100 opinions and several telling dissents in which Barrett displayed her clear and consistent conservative bent.
She has long expressed sympathy with a mode of interpreting the Constitution, called originalism, in which justices try to decipher original meanings of texts in assessing if someone’s rights have been violated. Many liberals oppose that strict approach, saying it is too rigid and doesn’t allow the Constitution to change with the times.
In the 2017 White House questionnaire, Barrett was asked if it was her view that abortion was always immoral. She didn’t answer the question directly but said: “If I am confirmed (to the 7th Circuit), my views on this or any other question will have no bearing on the discharge of my duties as a judge.”
In a 2013 Texas Law Review article, Barrett listed fewer than 10 cases she said are widely considered “super-precedents,” ones that no justice would dare reverse even if they believed they were wrongly decided. Among them was Brown vs. Board of Education, which declared racial segregation in schools unconstitutional.
One she didn’t include on the list: Roe v. Wade, the 1973 landmark case that affirmed a woman’s right to abortion. Scholars don’t include it, she wrote, because public controversy swirling around it has never abated.
Abortion and women’s rights were the focus of a bruising 2017 confirmation process after Barrett’s nomination to the 7th Circuit.
Others pointed to Barrett’s membership of the University of Notre Dame’s “Faculty for Life” group and that she had signed a 2015 letter to Catholic bishops affirming the “value of human life from conception to natural death.”
Sen. Dianne Feinstein told Barrett her views suggested religious tenets could guide her thinking on the law, the California Democrat telling Barrett: “The conclusion one draws is that the dogma lives loudly within you.”
Barrett responded that her views had evolved and that she agreed judges shouldn’t “follow their personal convictions in the decision of a case, rather than what the law requires.”
Sen. Chuck Grassley, an Iowa Republican, criticized Democrats for pressing Barrett on her faith, saying it could be seen as a “religious test” for the job.
The Senate eventually confirmed her in a 55-43 vote, with three Democrats joined the majority.
Barrett joined three conservative judges in asking for the ruling to be tossed and for the full court to rehear the case. They didn’t have the votes to force a rehearing. But they issued a joint dissent on the rehearing decision, clearly suggesting they thought the Indiana law was constitutional.
The death of Justice Ruth Bader Ginsburg has started a political fight that could determine the American society for 30 or 40 years and also could shape US Supreme Court decisions on abortion rights, voting rights and other fundamental issues for a generation or more.