Saving the Supreme Court: The Next Six Weeks Could Change Everything

Cross-posted from our joint Raising Women's Voices campaign

Late last week, Supreme Court Justice Ruth Bader Ginsburg, a long-time champion of women, died from complications of metastatic pancreatic cancer. But over the last six days, we’ve had little chance to mourn her passing or celebrate her life before jumping into an all-hands-on-deck fight to protect her legacy — and our rights — from a raw power grab. In brazen disregard of both their own stated principles and Ginsburg’s dying wish that her successor be appointed by the next president, Senate Republicans are lining up to confirm a Trump nominee before the presidential election in six weeks.

Four years ago, Senate Republicans sang a different tune

Within hours of Justice Antonin Scalia’s death in February 2016, Senate Majority Leader Mitch McConnell (R-KY) declared that he would block any nominee proposed by then-President Barack Obama, even though the presidential election was still eight months away. Creating the “McConnell Rule” from whole cloth, he declared that “the American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

That was, of course, a thinly veiled excuse to block a Democratic president from changing the ideological balance of the Court. But, for four years Republicans have insisted that they were acting on principle. Senator Lindsey Graham (R-SC) was explicit: “I want you to use my words against me. If there’s a Republican president [elected] in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.”

To no one’s surprise, Senate Republicans, and the right-wing media infrastructure that supports them, have now shamelessly, brazenly reversed course. In the last few days, all but a handful of GOP senators have pledged to vote for Donald Trump’s nominee before the election — even before a nominee has been named. As Trump himself noted, “most of [the Republicans] have already made their intentions very clear.”

Graham, now chairman of the Senate Judiciary Committee with jurisdiction over court appointments, has sketched out a rough timeline that would see the nominee get a hearing just 16 days after being publicly named this coming Saturday, a record-breaking rush that the Washington Post described as “unprecedented in modern history.” (For context, the last 10 nominees have waited an average of 50 days between announcement and hearing to ensure that the committee had time to thoroughly examine their records.) Trump has even suggested that the committee should dispense with a hearing altogether and simply confirm his nominee nearly sight unseen.

Americans want next the president to fill SCOTUS vacancy but Trump wants a corrupted Court to help him steal the election

Senate Republicans know that a vote before the election could hurt them, both depressing the sense of urgency that their base feels about securing an anti-abortion majority on the Court and motivating Democrats and independents alarmed by a far-right takeover. Polls conducted this week show that a large majority (62%) of Americans (including 50% of Republicans) believe that the winner of the presidential election should fill the seat, and news that Trump would seek to replace Ginsburg has already “unleashed an unprecedented torrent of small-dollar fundraising for Democrats.” Appearing on Fox News, Graham lamented that voters "hate my guts."

But Trump has urged the GOP to steamroll ahead before the election, openly stating that he can’t win re-election unless the Court is stacked with nominees willing to give him his own Bush v Gore-style victory in the face of electoral failure.

“We need nine justices, Trump told reporters this week. “With the unsolicited millions of ballots that they’re sending, it’s a scam, it’s a hoax, everybody knows that. And the Democrats know it better than anybody else. So you’re going to need nine justices up there, I think it’s going to be very important. Because what they’re doing is a hoax, with the ballots.” And one day later, “I think it’s better if you go before the election because I think this — this scam that the Democrats are pulling — it’s a scam — this scam will be before the United States Supreme Court. And I think having a 4-4 situation is not a good situation.”

Trump's fig-leaf rationale has been echoed by the same hard-right senators and right-wing outlets who had no problem leaving the Court at 4-4 from February 2016, through the election, and four months into 2017. In 2016, for example, Senator Ted Cruz (R-TX) argued that the Supreme Court could remain at 8 justices through the entirety of Hillary Clinton’s presidential term.

Cutting through the shamelessness, Judiciary Committee member Senator Patrick Leahy (D-VT) was explicit about the stakes and Trump’s intentions:

The President is now taking this argument to a truly disturbing level.  He is explicitly suggesting that he needs nine justices seated before the election so that the Court will side with him when he inevitably claims election fraud. That is, the President is rushing to fill this vacancy to ensure that the Court will toss out ballots to win him the election when he raises his usual, baseless allegations of voter fraud. Yesterday the President even refused to promise a peaceful transfer of power unless such votes are thrown out. There can be no doubt that the President is counting on his nominee to help deliver him the White House from behind the bench. That alone will result in a crisis of legitimacy for the Court — and possibly for the republic — with unfathomable consequences. [emphasis mine]

There are too many disturbingly plausible ways in which the election could be stolen to explore in this post. But most depend on a Supreme Court willing to toss out legal precedent and ignore the will of the voters in order to do Trump's bidding.

Even without Trump's third nominee, the Roberts Court is already far more partisan than the Rehnquist Court that gave George W. Bush the White House in 2000. But Roberts himself has been careful in recent years to avoid blatantly partisan moves that threaten the Court's reputation even as his fellow conservative justices have shown no similar caution. A 6-3 Court where three Trump nominees are joined by Clarence Thomas and Samuel Alito makes Roberts' role as a some-time swing vote irrelevant.

All of which makes protecting the election arguably the greatest threat in this fight.


NWHN staff rally in front of the Supreme Court in 2015 to save the ACA from judicial repeal during consideration of King v Burwell

ACA, abortion, civil rights at risk if Trump's court-packing steals the election

First, the good news: there’s reason to be cautiously optimistic about what could be achieved (or protected) by a health care-friendly Congress next year in partnership with a health care-friendly White House — particularly if (as seems increasingly likely), Democrats eliminate the legislative filibuster, as Obama and others have urged.

For example, the Affordable Care Act (ACA) is now at dire risk from judicial repeal through California v Texas, the “bananas” lawsuit that the Court is scheduled to hear in November (but that likely won’t be decided until next spring). But a one-sentence bill passed by a pro-ACA Congress and signed into law by a pro-ACA president on January 21 would be enough to save it.

Similarly, decades of conservative control of the Supreme Court mean that the next health care-friendly Congress must act on a host of reproductive and racial justice priorities, regardless of who fills Ginsburg’s seat. Codification of the birth control coverage mandate which is currently authorized but not mandated by the ACA; passage of the Do No Harm Act, which would prevent the use of the Religious Freedom Restoration Act (RFRA) to evade compliance with federal civil rights, labor, child welfare, and health care laws; and restoration of the Voting Rights Act will all be necessary just to overcome the highly partisan 5-4 losses of the Roberts era.

While defending Roe v Wade is rightly a focus of this nomination battle, decades of judicial attacks have already undermined its core promise for millions of pregnant people who effectively live in a post-Roe world now because they live on the wrong side of a state border. Congress must enact strong protections for abortion rights (such as the Women's Health Protection Act) and eliminate the Hyde amendment, which blocks public health insurance programs like Medicaid from covering abortion care. Enacting federal legislation would secure nationwide abortion access even without Roe.

Finally, of course, a new Congress and White House should be pressed to undo the judicial sabotage of the McConnell era. The composition of the federal judiciary, including the number of justices serving on the Supreme Court, is a statutory, not constitutional, matter that has fluctuated throughout our nation’s history and could be changed again by simple majorities in Congress and a president’s signature. Even just the threat of “court-packing” can have a powerful effect on justices in lifetime appointments who would otherwise be wholly unaccountable.

But, none of that matters if Trump’s nominee casts the deciding vote to give him an election he didn’t win.

Congress needs to hear from us NOW

That’s why the next six weeks are among the most critical that the nation has ever faced. And while it can feel futile to try to shame people who seem incapable of shame, we know that a groundswell of public opposition to a brazen power grab can work.

We defeated repeal of the ACA in the face of long odds, we ensured that the public knows who Brett Kavanaugh really is, and we can delay this confirmation until after the election.

Senators and their staff need to hear from us NOW.

It’s time to light up Senate phones, take to the streets, rally outside of Senate offices, write letters to the editor, and make our voices heard.

Click HERE to contact your senators through our Take Action tool.

Sarah Christopherson, MA, is the Legislative Director for the social justice campaign, Americans for Tax Fairness, and the NWHN’s former Policy Advocacy Director. Her 10 years working for Congress and her deep knowledge of health policy and consumer protection make her the NWHN’s issue area expert on federal health reform implementation and defense, drug and device safety and efficacy, and sexual and reproductive health.

Read more from Sarah Christopherson.