Justice Ginsburg's death means Supreme Court seat filled by Amy Coney Barrett

Posted October 2020

By Garon Jones

Staff Editor

Supreme Court Justice Ruth Bader Ginsburg, legal, cultural, and feminist icon, tragically died of pancreatic cancer at the age of 87 on Sept. 19. She was in her home in Washington D.C. surrounded by family.

Ginsburg served 27 years on the Supreme Court, nominated by President Bill Clinton in 1993. Studying at Harvard Law School in 1957, Ginsburg battled fierce discrimination, being one of only nine women in a group of over 500 men. These women, including Ginsburg, were not called upon in class and were not granted access to the library. Despite having many obstacles placed in front of her, she climbed the judicial ladder, leading her to the highest court in the country.

Ginsburg became the first woman to lie in repose at the Supreme Court Building and became the first woman to lie in repose for a second day. A private interment service was held at Arlington National Cemetery. Hundreds of people gathered in front of the Supreme Court within hours of the news of Ginsburg’s death. By the next morning, a makeshift memorial was constructed on the court steps.

As a legal scholar, Ginsburg was a member of the non-originalist school of thought, or commonly called the “living Constitution approach.” This interpretation of law holds that the Constitution can be interpreted far more loosely than the words on the page. Non-originalists hold that the Constitution is a “living, breathing document,” that must be able to change as the times change with it. A ruling of Roe V. Wade argued from a Non-Originalist perspective might contend that the Fourth Amendment’s “right to privacy” would include abortion, although not being explicitly stated anywhere in the Constitution.

Originalist judges, however, typically appointed by Conservative presidents, strongly reject Ginsburg’s typical readings. These judges argue that the Constitution should be interpreted as written. They contest that judges are not legislators, and should not have the authority to stretch historical writings to mean something completely different in the present. According to them, if the people support abortion as a Constitutional right, for example, it should be put through as an Amendment to the Constitution, where three fourths of the states must consent.

The president is vested with the responsibility to pick a Supreme Court justice, but only with the advice and consent of the Senate. President Trump has already selected Amy Coney Barrett who was most recently also appointed to the Seventh Circuit Court of Appeals by the president in 2017. With a majority Republican Senate, it’s likely that Barrett will be appointed to the Supreme Court. Many Democrats oppose Berret’s nomination process, arguing that Republican Senate Majority Leader Mitch McConnell, who plans to move forward with Trump’s Supreme Court pick, rejected Obama’s supreme court pick in 2016. The grounds for this rejection were that the election was close, and that the process should be delayed until the new president is inaugurated. Democrats argue this hypocrisy.

Another contention made by Democrats is that, just days before her death, Ginsburg made an announcement to her granddaughter Clara Spera.

“My most fervent wish is that I will not be replaced until a new president is installed,” Justice Ginsburg said.

But of course, dying wish provisions for nominations of the Supreme Court are written nowhere in the Constitution. The president, elected for a term of four years has the power to nominate justices anywhere in that four term period, including the weeks prior to an election.

Now comes the question of overturning a decision like Roe V. Wade. The reality is that even with a Barrett confirmation, the Court will likely not have enough votes to overturn that decision. Justice Barrett and Justice Clarence Thomas are two likely votes to overturn Roe. But Trump’s two previous appointees, Justice Neil Gorsuch and Justice Brett Kavanaugh are moderates who are unlikely to vote with Barrett and Thomas. Justice Sonia Sotomayor and Justice Elena Kagan, both picked by President Obama, will also not vote to overturn. Likely neither will President Clinton appointee, Justice Stephen Breyer. This already puts the vote 5-4, assuming that the other justices will vote to overturn, which, based on their records, the chances are shotty at best.