The Supreme Court has been fairly evenly split between liberals and conservatives for about three decades. Neither conservatives nor liberals have had an outright majority on the court.
With the recent death of Justice Ruth Bader Ginsburg, that may be about to change.
Ginsburg’s death means President Donald Trump and Senate Republicans have an opportunity to force through a sixth conservative justice. Should they succeed in doing so, conservatives will gain a clear majority on the court for the first time in a generation. This could have devastating consequences.
When Justice Antonin Scalia, a right-wing member of the court, died in 2016, President Barack Obama chose Merrick Garland to replace him. Obama could have selected a progressive, but instead chose Garland, a very moderate jurist.
Garland would have moved the court toward the left, compared to Scalia, but as a moderate, the basic power dynamics would have remained the same.
However, Sen. Mitch McConnell, the arch-conservative Senate majority leader, made sure Obama did not get the opportunity. He refused even to allow the confirmation process to start. This unprecedented abdication of constitutional responsibility meant that Trump was able to nominate Justice Neil Gorsuch.
While underhanded, Gorsuch replacing Scalia did not change the political composition of the court.
Then Justice Anthony Kennedy retired in 2018. Kennedy was pretty close to the center and was the swing vote in many 5-4 decisions. His replacement, Justice Brett Kavanaugh, pulled the court to the right and gave conservatives a 5-4 majority for the first time in years.
Chief Justice John Roberts became the center of the court. Roberts is not a moderate, but he is not as conservative as the other four conservative justices. The court moved to the right with Kennedy’s departure, but it was not a dramatic shift.
Trump is likely to name Ginsburg’s replacement as soon as this weekend. The nominee would give conservatives a 6-3 majority and the ability to overrule Roberts’ occasional swing vote.
A Supreme Court with a 6-3 conservative majority could make several decisions with significant consequences for many of us.
A 6-3 conservative majority would likely strike down the entire Affordable Care Act. It was saved once when Roberts provided a pivotal swing vote. It is doubtful that the same thing would happen again.
Republicans have tried to repeal the act legislatively, but have failed dozens of times because they have nothing to replace it.
Repealing it through the court would be tragic. Subsidies that make health insurance would vanish. Protections for people with preexisting conditions would disappear. Hundreds of thousands would lose health insurance.
Those of us living with HIV know the fear of being denied health insurance because of a preexisting condition.
Access to abortion care is another that gets a lot of news coverage. Conservatives have been doing all they can for decades to remove abortion care as an option for those who need it. Roe v. Wade’s landmark decision is likely to be overturned, and with it, most of us would no longer be able to get a legal abortion.
One of the legal arguments that underpin the Roe decision is the constitutional right to privacy (which was established in an earlier Supreme Court case, Griswold v. Connecticut). It would be tough to overturn Roe without seriously undercutting the right to privacy.
The right to privacy is a cornerstone of many of the other rights we enjoy, including marriage equality and the right to send your child to private school. The right to privacy was also foundational in throwing out laws banning sex between people of the same gender.
Overturning Roe would be disastrous for reproductive justice, and the ripple effects could be devastating.
Civil rights laws, voting rights laws, environmental laws, immigration laws, affirmative action programs and so much more are on the chopping block.
Beyond McConnell’s extreme hypocrisy, shown by creating one set of rules for a Democratic president and another for a Republican president, the consequences of a 6-3 conservative majority are dire.
There is hope, but only if enough people, especially people with Republican senators, demand the vote on Ginsburg’s replacement be held after the inauguration.
There cannot be one set of rules for Democrats and another for Republicans. McConnell cannot continuously move the goal posts, ensuring he always wins. It’s not fair, it’s not moral, and it’s not just.
It remains to be seen if enough people will join the call to honor Ginsburg’s last wish, that whoever wins in November’s election be allowed to replace her.
You can help. Call your senators today. Call them again tomorrow. Get friends to call. The Capitol Switchboard is (202) 224-3121. Just ask to speak with your senator’s office, and they’ll connect you through.
