How Ginsburg’s Absence Will Affect Key Cases

September 22, 2020 Updated: September 22, 2020

The absence of the recently deceased Justice Ruth Bader Ginsburg on the Supreme Court may give the high court’s conservative bloc the upper hand in cases to be heard in the coming term.

President Donald Trump vowed over the weekend to replace the long-serving liberal Ginsburg, a feminist and cultural icon, who died Sept. 18 at 87, with a conservative female justice. If Trump’s nominee is confirmed, there would in theory be six ideological conservatives on the nine-member court, instead of the current five.

There are now 12 women on Trump’s list of possible nominees, which is topped by two Trump lower court nominees, Judge Amy Coney Barrett of the Chicago-based 7th Circuit Court of Appeals, and Judge Barbara Lagoa of the Atlanta-based 11th Circuit.

Democrats say Republicans are being hypocritical by moving forward with a nominee so close to the Nov. 3 election, especially after Senate Republicans blocked then-President Barack Obama’s Supreme Court nominee, Merrick Garland, after conservative Justice Antonin Scalia died suddenly in 2016.

But Republicans have enough votes to confirm Trump’s next Supreme Court nominee before the Nov. 3 election, Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) said Sept. 21 on Fox News Channel’s “Hannity.”

“We’re going to move forward in the committee, we’re going to report the nomination out of the committee to the floor of the United States Senate so we can vote before the election,” Graham said. “That’s the constitutional process.”

Meanwhile, the court’s new term begins Oct. 5, with eight justices in place to hear cases.

The most pressing concern, legal experts told The Epoch Times, is what happens if litigation directly related to the presidential election comes before a court that’s hamstrung 4–4 along ideological lines.

If it’s a close election, “you’re going to have a lot of legal battles and the Supreme Court is probably going to have to intervene,” said Curt Levey, president of the Committee for Justice.

Having a 4–4 split on the high court could lead to chaos, he said, arguing that Senate Republicans should confirm Trump’s yet-to-be-named nominee.

Normally, cases involving similar issues come up to the court through the several appeal circuits but if the split is 4–4, then the decision can’t be “harmonized,” he said.

“Just think about Bush v. Gore, multiplied by multiple states with the Supreme Court not being able to step in and answer a question and different issues decided differently in different circuits. That could make Bush v. Gore look like a party.”

In Bush v. Gore (2000), the Supreme Court halted the counting of ballots in Florida, in effect handing the presidency to Republican George W. Bush 36 days after Election Day. The court voted 7–2 that the vote-counting procedures in places violated the Constitution and by 5–4 ordered the counting to stop.

“If you just step back and say, ‘Would the country be better off having nine justices on Supreme Court instead of an even number when this election is fought out in the courts,’ I don’t think anyone–if you phrased the question that way—would say the country is better off having eight justices on the court who can’t intervene even if we face a constitutional and political crisis,” Levey said.

Kelly Shackelford, president of the First Liberty Institute, agreed with Levey.

“There’s a lot of talk already right now before we even get to the election about election lawsuits … so the idea of a huge election lawsuit going to the Supreme Court and ending up in a 4–4 tie would be a disaster for our country,” he said.

“You need the full court there and I think it’s also really important because there are these battles going on all over the country right now about religious freedom and the church,” where services are being restricted under pandemic-related regulations, he said.

Having eight justices instead of the usual nine reduces the power of Chief Justice John Roberts, a nominal conservative who has a history of voting with the liberal bloc in high-profile cases, Levey said in an interview with The Epoch Times.

“When Ginsburg was on the court, Roberts was the decider, whereas with eight people on the court, Roberts is the decider only if he joins the conservatives, and if he joins the three remaining liberals, then you have a tie.”

Roberts could vote to save Obamacare, and he did a few years ago, Levey said. California v. Texas is a case scheduled for argument in November.

A federal judge in Texas struck down the Patient Protection and Affordable Care Act, reasoning that with the individual mandate effectively removed by Congress, the statute was unconstitutional.

Shackelford said Ginsburg’s absence is helpful to the cause of religious freedom in the upcoming case of Fulton v. City of Philadelphia.

Philadelphia can’t be allowed to continue discriminating against would-be adoptees based on their religious views, he said in an interview. Ginsburg seems likely to have ruled in the case against the adoption agency, which has a policy of not dealing with LGBTQ parents, he said.

A case challenging abortion laws could arise. If one does, Roe v. Wade (1973), the Supreme Court decision that legalized abortion across the country, could be on less solid legal ground in the absence of Ginsburg, an abortion rights stalwart.

Known as a civil libertarian, Ginsburg’s absence on the court also could affect Tanzin v. Tanvir, to be heard in November. The Trump administration argues that several Muslim men who claim they were wrongfully placed on the U.S. “no-fly list” for refusing to act as government informants shouldn’t be able to seek damages from federal officials.

Without Ginsburg, the court seems more likely to rule against the men even though the Religious Freedom Restoration Act of 1993 (RFRA) permits suits for damages against individual federal officials, in this case, members of the FBI.

The Ginsburg vacancy could make it less likely that Jones v. Mississippi, a challenge to be heard in November to the practice of sentencing juveniles to life imprisonment without parole, will succeed.

House Democrats’ request to access secret grand jury materials referenced in former special counsel Robert Mueller’s report about his investigation into potential Russian interference in the 2016 election will likely be on weaker ground without Ginsburg on the high court bench in Department of Justice v. House Committee on the Judiciary, scheduled to be heard in December.