What If a Republican President Replaces Ginsburg?

Justice Ruth Bader Ginsburg reiterated recently that she has no intention of retiring from the court to ensure that her replacement is nominated by President Obama and not a possible Republican successor. ThinkProgress looks at some of what could happen if she were to be replaced by a Republican.

If a future Republican president has the opportunity to replace Justice Ginsburg, the results could be no less consequential. Here’s a short list of decisions that would immediately become vulnerable if Ginsburg’s vote went to a conservative justice:

  • No More Marriage EqualityUnited States v. Windsor — the decision striking down the unconstitutional Defense of Marriage Act — was a 5-4 decision with Ginsburg in the majority. If Ginsburg is replaced by another conservative, DOMA could roar back to life. At the very least, the nation’s drive towards nationwide marriage equality could come to a screeching halt.
  • Criminalizing Sex: Although Lawrence v. Texas, which struck down Texas’ “sodomy” law, was a 6-3 decision, one of those six justices has since been replaced by the staunchly conservative Justice Samuel Alito. If another member of the Lawrencemajority is replaced, it could lead to gay sex being outlawed entirely in several states.Lawrence‘s holding, however extends far beyond gay couples to prohibit laws criminalizing non-commercial sexual activity between consenting adults. Thus, ifLawrence falls, the government could find its way into every American’s bedroom.
  • The End of Abortion RightsRoe v. Wade is already on life support. Indeed, Justice Anthony Kennedy, who is the so-called swing vote on abortion, hasn’t voted to strike a law restricting the right to choose in 21 years. Nevertheless, Kennedy provided the key fifth vote to retain “the essential holding of Roe v. Wade” in a case called Planned Parenthood v. Casey. If Ginsburg is replaced by a conservative, there will likely be only four votes willing to retain that holding.
  • Watering Down Minority Votes: Five justices voted in League of United Latin American Citizens v. Perry to strike part of a Texas redistricting map because it tried to protect an incumbent Republican congressman by reducing the impact of Latino voters. If Ginsburg is replaced by a conservative, these kinds of tactics could become common.
  • Executing Children & The Intellectually Disabled: There are almost certainly four votes on the Supreme Court to permit executions of children and the intellectually disabled. Ginsburg’s replacement could be the fifth.
  • Judges for Sale: Four justices joined a dissent arguing that there’s nothing wrong with a wealthy businessman spending $3 million to place a judge on a state supreme court— only to have that judge cast the key vote to overturn a $50 million verdict against the businessman’s company. Ginsburg’s replacement could places judges up for sale.
  • Millions Without Health Care: Finally, the decision that largely preserved the Affordable Care Act was a 5-4 decision, with four justices voting to repeal Obamacare in its entirety. If those four justices gain a fifth vote, it could not only strip millions of Americans of the health insurance that they will soon gain under this law, but it could toss the entire American health care system into chaos. Among other things, if the dissent’s plan to repeal the Affordable Care Act in its entirety were to actually happen,Medicare could lose its ability to pay claims until the agency that administers the program completed a lengthy rulemaking process that can take months.

I am a huge admirer of Justice Ginsburg. I think she is one of the most important justices of the last half century. But she is taking an enormous risk with the judicial future of the country in ways that could have a massive and devastating impact on millions of people.

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  • dshetty

    But she is taking an enormous risk with the judicial future of the country in ways that could have a massive and devastating impact on millions of people.

    Phooey. Even if she does retire, how long will this approach of always keeping a liberal majority in the court to get the constitution interpreted the *right* way work? You have a problem that a significant and sometimes a majority part of your population is nuts. You have a problem that your elected judges are so biased that they cant do their jobs. (I use you because I am not an American). You have to convince the people to not vote for fundamentalists – that solves all your problems – instead of making political decisions on when supreme court judges should retire and who should replace them.

  • Trebuchet

    But what chance would Obama have of getting an appointment — any appointment — of a justice confirmed by the Senate? As I understand it, the “nuclear option” restricting filibusters applies only to lower court judges, not the Supremes. I think Obama could appoint Roy Moore to the court and the Republicans would oppose him.

  • matty1

    I think Obama could appoint Roy Moore to the court and the Republicans would oppose him.

    Do. It.

    That would be comedy gold.

  • colnago80

    This should be an incentive, provided that Ginsburg still around in 2016, for those who would claim that their’s no difference between, say, Hillary Clinton and, say, Ted Cruz to sober up. Anyone who thinks that a Clinton appointee would not differ fundamentally from a Cruz appointee is raving bonkers. Those liberals who turned up their noses at All Gore in 2000 should come to their senses. They put Alito and Roberts on the court.

  • nrdo

    I agree with most of the list, but not the last point about the affordable care act. The US healthcare system, if anything, is characterized me enormous, practically unstoppable bureaucratic inertia. Once the AHA was found constitutional and the insurance companies revised their business plans to profit from the new arrangement (and profit they will) . . . the inertia seems clearly against the Tea Party and another legal challenge seems unlikely to succeed.

  • Michael Heath

    This is the apex of arrogance in the U.S. in our time. I can think of no close seconds with the exception of President George W. Bush thinking he was fit to be president. If he ever thought that; he might not have.

    There’s no upside to Justice Ginsburg taking this risk, with enormous downsides to the country’s interests, as Ginsburg sees it, and no upside to Ginsburg protecting her own legacy. What we see here is just another liberal actively working to snatch defeat out of the jaws of victory.

  • Relax. Ginsburg is immortal. I saw her get hit by a bus, once, and the bus got the worst of it.

  • David C Brayton

    I’m with Modusoperandi. I heard that Justice Ginsburg is the only person that Chuck Norris won’t fight because he knows he’ll be spanked hard as soon as the robe comes off.

  • Death, taxes and RBG, eh?

  • Maybe, just maybe, Ginsburg thinks that manuevering to control who selects her eventual successor is beneath her role as a supreme court justice. Maybe she thinks it’s her job to analyze cases and the constitution, share her viewes with other justices, listen to theirs, and vote.

    Maybe, just maybe, she thinks that she and her colleagues are not Republicans or Democrats, not liberals or conservatives, but politically neutral American and Supreme Court Justices who are concerned only with the merits of the cases before them.

    If so, she may be naive but we need eight others like her.

  • dingojack

    A Waterchapel – “Death, taxes and RBG, eh?

    Agreed, if a Republican President* should appoint a conservative Supreme Court justice, the US could find itself labouring under CMYK! 🙂

    Jenny – have I got bridge to sell to you (it’s cheeeep!)



    * and, in the near term what exactly is the probability of this occurring (in nice round figures)?

  • iangould

    Kennedy and Scalia are only three years younger than Ginsburg. I wouldn’t take bets on any of them making it until 2017 (when any new Republican President would take office).

  • iangould

    “What If a Republican President Replaces Ginsburg?”

    Then presumably the Vice-President takes over the Presidency.

  • davem

    Executing Children & The Intellectually Disabled

    Seriously? That’s beyond f**d. That’d put the US on a par with Iran. The race to the bottom continues…

  • Jeff Engel

    re #10 –

    It’s certainly her job to judge cases on their merits. But that’s not what she’s doing when she’s picking her retirement time. At that point, her responsibility is timing it so that she can maximize the odds of her successor continuing to do her job. Assuming the President’s nominee could get past the Senate, the odds favor that out of a President Obama nominee than, say, a President Cruz or President Perry one.

    But maybe she figures she can last til there’s a reasonable 60% supermajority in the Senate _and_ a reasonable President. I dearly hope she’s that vigorous.

  • Azkyroth Drinked the Grammar Too :)

    Executing Children & The Intellectually Disabled

    Seriously? That’s beyond f**d. That’d put the US on a par with Iran. The race to the bottom continues…

    Given the Republicans’ attitude about executions, maybe we could have the first kept illegal on child pornography grounds?