What The Supreme Court’s Unusually Big Jump To The Right Might Look Like

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What The Supreme Court’s Unusually Big Jump To The Right Might Look Like

ILLUSTRATION BY FABIO BUONOCORE

With the death of Supreme Court Justice Ruth Bader Ginsburg, President Trump will have his third opportunity to appoint a judiciary for the country’s Supreme Court. This nomination, however, has the highest stakes to date for Trump, the Republican Party and the conservative right-wing movement. If this succeeds, it can cement a conservative majority of 6 to 3 in court that could fundamentally push the law to the right in the United States.

Of course, Trump has not yet announced who his candidate will be, even though he has committed to it appoint a womanwhich somewhat limits the possibilities. However, it’s hard to predict how a candidate’s ideology will compare to current judges – let alone how they will rule if they join the court. If we assume that Trump nominates one of the few people who did this appeared repeatedly in reports about his short listHowever, Ginsburg’s successor will almost certainly represent one of the three biggest ideological changes at the court since 1953:

What The Supreme Court’s Unusually Big Jump To The Right Might Look Like 1

What The Supreme Court’s Unusually Big Jump To The Right Might Look Like 2

It’s really, really rare that presidents can seismically shift the court’s center of gravity with a single nomination. But that’s exactly what Trump’s replacement for Ginsburg is. There are only two other moments in modern Supreme Court history comparable to this one: the replacement of Justice Thurgood Marshall with Justice Clarence Thomas in 1991 and the replacement of Chief Justice Earl Warren with Chief Justice Warren Burger in 1969.

Large fluctuations in the makeup of the place are rare

Replacing the Supreme Court with the largest changes in ideological rank, with 1 being the most liberal and 9 being the most conservative

the seven largest Supreme Court displacements
term justice rank replacement rank change
1991 Marshall 1 Thomas 9 +8
1969 labyrinth 2 Burger 9 +7
2020 Ginsburg 2 Trump candidate ? + 5 / + 6 *
1969 Fortas 3 Blackmun 8th +5
1990 Brennan 2 Souter 5 +3
1962 Frankfurter 8th Goldberg 5 -3
1965 Goldberg 5 Fortas 2 -3

* Estimated change
If there were more than nine judges in a term, we dropped the judges who voted in the fewest cases (e.g. O’Connor in 2005, Douglas in 1975).

Source: Martin-Quinn scores

Of course, it’s important to underline that the data we have for Ginsburg’s possible replacement is not perfect. For one thing, we rely on it Judicial Common Space Scores, the are based on the ideology of the senators who were instrumental in appointing those judges or the nominating president, rather than the actual words or actions of the judges once they get there.

We looked at the JCS results for four federal judges, all of whom are high on the shortlist for nomination: Amy Coney Barrett, Barbara Lagoa, Allison Jones Rushing and Joan Larsen. Each of these judges would bring something different to the court, but by and large the effect is the same no matter who chooses Trump: Everything These nominations would result in a far more conservative judiciary, replacing the court’s second most liberal judiciary. According to their JCS results, all four lie ideologically between Justice Neil Gorsuch and Thomas – that is, somewhere close to Justice Samuel Alito, who is currently the second most conservative justice at the court.

This is a defining moment for the judgment, but it is not unprecedented. In fact, it looks like this point in time might have a number of similarities to the other two major swings that have occurred since 1953. when Marshall withdrewHe was one of the most liberal judges at court. But with his departure, President George H.W. Bush was able to replace the first justice of the Black Supreme Court with Thomas, another black legal star Who was Marshall’s opposite in every other respect – and has consistently been the most conservative judiciary at court since joining. We don’t yet know who Ginsburg’s successor will be, but it’s likely a woman who is the opposite of Ginsburg in many ways – including her unwavering support for abortion rights.

In addition, if President Richard Nixon nominated Warren Burger to succeed Earl Warren as Chief JusticeIn doing so, he effectively ended the 15-year liberal era that defined Warren’s tenure. Similarly, the Roberts Court could see its own transformation as any of the potential candidates on Trump’s shortlist would almost certainly end up to the right of Chief Justice John Roberts, throwing him out of the court’s ideological center and limiting his ability to act as a moderating force to serve. A judge like Barrett or Lagoa, who seem to be the front runner, could be even more conservative than Justice Gorsuch, who switched to Liberals a few times during his three years on the court, or Justice Brett Kavanaugh.

Even if Trump’s candidate is on the less conservative end of our esteemed range, she is likely to have a much greater impact on the composition of the court than Gorsuch or Kavanaugh, who brought their own distinctive way of thinking about the law to the Supreme Court but were no different so dramatic by the judges who had previously occupied their seats. Part of Gorsuch’s appeal when he was appointed to court in 2017 was his legal resemblance to his predecessor, Judge Antonin Scalia. And while Kavanaugh’s replacement of Justice Anthony Kennedy in 2018 attracted a lot of attention because the court’s swing vote was supposedly replaced with a reliably conservative one, the two weren’t actually that ideologically far apart.

And that’s why this Supreme Court nomination battle is going to be such a big deal. It’s hard to figure out how conservative or liberal a particular person actually is before they join the court, and it’s also hard to predict how they will rule when they get there. And there is always the possibility that judges will do so Drift left or right once they have a lifelong appointment to the highest court in the country. However, from this analysis it appears that whoever is the candidate is likely to change the court in ways we have seen few times in modern history. Almost no president gets this opportunity. And that’s why Trump – and the Republican-controlled Senate – may be willing to risk a lot to make this happen.

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