The death of Judge Ruth Bader Ginsburg leaves the U.S. Supreme Court with eight justices during the most litigious election season in anyone’s memory.
Is there a cause for concern?
Firstly, it is important to keep in mind that this is nothing new. There were other times when the number of court judges was reduced to eight. Notably, the court had only eight judges for a full 14 months in 2016-2017 after Judge Antonin Scalia’s death because Republicans refused to consider President Barack Obama’s candidate, Merrick Garland. There were four tied votes during that period.
Also, the 4-4 ties sometimes occurred when the court was at full strength, when a judge decided to step down due to a conflict or the appearance of a conflict.
So what happens when the judges falter at 4-4? Nothing, really. Rulings from the lower federal or state higher courts remain in effect as if the Supreme Court had not even heard the case.
This does not mean, however, that lower court rulings have any prior value. This also does not mean that the Supreme Court cannot decide to reconsider a case when it is upheld in full force.
But at a time like this, the number of judges on the court is of great importance. Hundreds of election-related cases await decisions in state courts, some of them heading to the Supreme Court. Then there is almost certain legal battles after the general elections only five weeks from now.
Rush to fill the seat
Despite Republicans’ assurances in 2016 that the opening of the Supreme Court should not be filled during the final year of the presidency, this year they wasted no time pushing hard to fill the vacancy as soon as possible. Just eight days after Ginsburg’s death on September 18, President Trump nominated Amy Connie Barrett, a conservative federal appeals court judge, to take the seat.
There are only 38 days left until the general election, and Trump has made it clear that he wants a full court by then to deal with anticipated electoral lawsuits. If the Senate ratified Barrett before Election Day, it would be an extraordinarily fast measure, but not unprecedented. In 1975, President Ford’s nominee, John Paul Stevens, was confirmed within 19 days and President Reagan’s candidate Sandra Day O’Connor was confirmed in 33 days in 1981.
In addition to filling the vacant position for electoral litigation, Trump and the Republicans want the full court to hear the arguments in a case on November 10, just one week after the election, that may determine the fate of the Affordable Care Act.
Barrett’s addition dramatically changes the strength of conservatives on the field. The court’s current composition gives conservatives a 5-3 advantage, but Chief Justice John Roberts has proven to be a swing vote at times. Join liberal positions On several occasions. Neil Gorsuch has sometimes split from fellow conservatives as well.
Democrats seem to have little power to slow the nomination process, so the prospect of a nine-judge Supreme Court by Election Day is strong.
But that doesn’t mean the tie – the subject of this post – is no longer relevant. Here’s why: Senate Democrats and legal experts are bringing up the case, if confirmed, Barrett has to stand down From any Supreme Court lawsuit arising from the election.
Their argument is that Barrett can be considered to have a conflict of interest because she will vote on an issue that may affect the man who nominated her.
New York University Law School professor Stephen Gillers, a well-known ethical expert, said Reuters On September 27, Democratic presidential candidate Joseph R. Biden, Jr. will be justified when he asks Barrett to stand down. But there is no way the Democrats, or anyone, can compel them to do so because decisions to step down are entirely left to the judges themselves.
But that won’t stop Senate Democrats from pursuing that kind of commitment during the hearings. Senator Cory Booker (DNJ), a member of the Senate Judiciary Committee, said he would meet Powell and ask her to step down.
Whether the Supreme Court has eight or nine justices, it will almost certainly play a role in determining how these elections go. I’ve already judged several with Mixed results.
But will we see something like another Bush up? There is no way to find out, of course. But if you are not ready for surprises in the wake of this election, you are not paying attention.