Last month, the United States Supreme Court announced that Justice Ruth Bader Ginsburg had died on September 18, 2020.  She had died from complications of pancreatic cancer at age 87.  Her legacy not only includes 27 years as a Supreme Court Justice but a lifetime of work systematically challenging laws that discriminated between men and women.  Her death, with just less than two months before the upcoming presidential elections, has opened up a seat for the appointment of a new justice on the Supreme Court.  Had Ginsburg chosen to retire in 2013, her seat would have certainly been filled by an equally progressive justice nominated by then President Barack Obama.  Instead, it looks like she will be replaced by Amy Coney Barrett who was in fact mentored by conservative Justice Antonin Scalia.  The Senate is scheduled to vote on her nomination October 26, one week before the presidential election.

Justice Ruth Bader Ginsburg’s Legacy

Justice Ginsburg started her career in law in 1956 as one of only nine women accepted to study at Harvard Law.  Already a mother before starting law school, she became the first woman to serve on two major law reviews, the Harvard Law Review and Columbia Law Review.  She transferred to Columbia where she completed her law degree first in her class.  She continued to have difficulty finding employment because of her gender, rejected for a clerkship to a Supreme Court justice despite her accomplishments and strong recommendations.  She worked as a law clerk for a District Court level judge, as a research associate learning Swedish and co-authoring a book on Sweden’s legal system, as a professor at Rutgers Law School, and as the first female tenured professor at Columbia Law School where she co-authored the first law school casebook on sex discrimination.  Co-founder of the Women’s Rights Law Reporter, she was significant in the legal fight for women’s rights in the 1970s arguing several landmark cases for gender equality before the Supreme Court.  She participated in more than 300 gender discrimination cases and argued six cases before the Supreme Court between 1973 and 1976.  She successfully argued in five of six cases that gender discrimination is harmful to both men and women.  In 1993, she became the second woman to be appointed to serve on the Supreme Court.

The Balance of the U.S. Supreme Court

When Justice Antonin Scalia died in 2016, President Obama nominated Merrick Garland to fill the empty seat on the Supreme Court.  Though there was 9 months before the next President took office, the Senate majority leader Mitch McConnell refused to consider the nomination.  Garland’s nomination expired the following January and President Trump’s nomination of Neil Gorsuch was then approved by the Senate.  Democrat lawmakers have decried the hypocrisy in the rush to fill Ginsburg’s seat before this year’s election saying: “Republicans broke the promise they made and rules they created when they blocked Merrick Garland’s nomination for 8 months under Pres. Obama.”  In 2012, the Supreme Court was evenly balanced between characteristically conservative justices Antonin Scalia, Clarence Thomas, Samuel Alito, liberal justices Ruth Bader Ginsberg, Stephen Breyer, Sonja Sotomayor, Elena Kagan and moderate justices John Roberts and Anthony Kennedy.  Conservative justices like Scalia hold a strict interpretation of the Constitution and make judgements based on the views of the original authors of the Constitution.  Liberal justices like Ginsburg interpret the Constitution as a living document that guides modern interpretation and application of the law.  With the seat left vacant by Justice Scalia’s death, the retirement of Justice Kennedy and the death of Justice Ginsburg, President Trump will have nominated 3 justices in the last 4 years changing the balance in the Supreme Court.

The Supreme Court is scheduled to hear a third challenge to the Affordable Care Act, also known as Obamacare, presented by Republican lawmakers.  In 2012, the U.S. Supreme Court upheld the law in a 5-4 ruling with Roberts, Breyer, Sotomayor, Kagan, and Ginsburg ruling that the individual mandate to have insurance is constitutional because the requirement is a tax and not a regulation of commerce.  The ACA was challenged again in 2015 because tax credits are only available in states with state-operated exchanges.  The Supreme Court ruled that the law intended the tax credits to apply to all states.  Without Justice Ginsburg’s vote the outcome of a future challenge to the ACA is now uncertain leaving it up to the new justices Gorsuch, Kavanaugh and Barrett.  Remember that open enrollment for 2021 runs from November 1-December 15.  Some states like Washington have a fully state-run exchange, but Hawaii, Arkansas, and Oklahoma access the federally facilitated exchange through www.HealthCare.gov.

Possible Impact of Amy Coney Barrett’s Appointment to the Supreme Court

Amy Coney Barrett, 48, Indiana, was nominated as a circuit judge three years ago by President Trump.  This past Thursday, the Senate Judiciary Committee approved her nomination by a unanimous vote of 12 Republican senators.  All 10 Democrats on the committee boycotted the vote.  Democrats are concerned that Barrett will vote to overturn the Affordable Care Act given her previous criticisms of the legislation.  She has declined to say how she would vote, also sidestepping questions about her views on climate change and the president’s executive powers to delay the election.  Democrats are also very concerned that she will be influential in overturning Roe v. Wade (1973) which ruled that the Constitution protects a woman’s right to have an abortion without excessive government restriction.  Vice Presential candidate Kamala Harris said, “Judge Barrett has a long record of opposing abortion and reproductive rights.  There is no other issue that so disrespects and dishonors the work of Justice Ginsburg’s life, than undoing the seminal decision in the court’s history that made it clear – a woman has a right to make decisions about her own body.”  Out of 53 Republican Senators, only two oppose confirming a nomination so close to an election, Sen. Murkowski (R-AK) and Sen. Collins (R-ME).  The Senate still has exactly 51 expected votes to approve the nomination.  Sen. Mike Lee (R-UT) and Sen. Thom Tillis (R-NC) have since recovered after testing positive for covid earlier this month.  And, Sen.Loeffler (R-GA) announced Saturday that despite positive covid tests among her staffers, she is currently testing negative and plans to be present for the vote on Monday.

Update: The Senate confirmed the nomination of Justice Amy Coney Barrett with a 52-48 vote on Monday, October 26, 2020. There has not be a Supreme Court justice confirmed without any support from the minority party in at least 150 years. The only Republican senator to join the Democrats is voting against the confirmation was Sen. Susan Collins (R-ME). Vice President Mike Pence was unable to preside over the vote due to a number of aides in his office testing positive for COVID-19.