Why the presidential election could turn on the Supreme Court

The death of US Supreme Court Justice Ruth Bader Ginsburg last week has electrified the presidential contest. Her historic role in the enactment of equal rights for women in America gave Justice Ginsburg, who was 87, an almost mythical status in the liberal imagination. The fact that Donald Trump now has a chance to appoint her successor before the election on November 3 has enraged Democrats and enthused Republicans in equal measure.

Precedent tends to support the Democrats’ argument that the President should delay the appointment until either he or his successor is inaugurated in January. When Justice Scalia died in March 2016, just before the last presidential campaign, the Senate majority leader, Mitch McConnell, blocked the then President Obama’s nomination to replace him on the basis that such an important appointment should be made by a new President with a fresh mandate.

This time, it is a different story. Senator McConnell now says that because his party, the Republicans, control both the Senate and the White House, it is in order for the incumbent President to press ahead with his nomination in mid-campaign. While this line of reasoning may be partisan, it is not unconstitutional. Trump’s choice of another conservative to replace the liberal Ginsburg is undoubtedly controversial, but that too is constitutional.

The significance of this seemingly arcane dispute about the Supreme Court is threefold. In the first place, if Trump is able to get his nominee confirmed, it means that whatever the result of the election, his legacy will include a clear 6-3 conservative majority on the Supreme Court. The President has already appointed conservatives at every level of the judiciary on an unprecedented scale.

Such a shift in the political balance will probably last for another generation. It opens up the prospect of a reopening of the most divisive issue of all, with a conservative majority on the Court perhaps even overturning the 1973 decision in Roe v. Wade that gave women a federal right to access abortion. While this would be a nuclear option for the Court, it is more likely to restrict access to public funding for abortions, rates of which have already been falling steadily across the United States since the 1990s.

No less important than its role on social issues such as abortion, however, is the function of the Supreme Court as the arbiter of political and especially constitutional decisions.

The second significance of a rapid replacement of Justice Ginsburg would be its impact on the campaign. Nothing could be more designed to galvanise support for both candidates than such a raising of the stakes. Trump is a gambler and he will revel in the drama. Congressional Democrats such as Speaker Nancy Pelosi are refusing to rule out another impeachment to delay the process of confirmation. Others, such as Chuck Schumer, the minority leader in the Senate, are even threatening to invoke the residual constitutional right of the House of Representatives to pack the Supreme Court by increasing its size beyond the historical norm of nine justices. Such a power has hitherto never been deployed, though in the 1930s President Franklin Roosevelt used the threat to stop the Supreme Court from blocking his New Deal.

This, however, is a polarisation of politics that will not be confined to Congress and the Senate: it is certain to manifest itself on the streets, almost certainly provoking violence. If anyone thought that the Black Lives Matter protests over the summer were explosive, they may have seen nothing yet.

All this could play well for the Trump campaign, with its emphasis on law and order. The President is also happy to reignite the culture wars of the 1970s and 1980s, which he thinks would energise the Republican base. It is not clear how Joe Biden could capitalise on potential chaos in the same way. He has sought to link the question of the composition of the Supreme Court to Obamacare, on which it is due to rule next year. He hopes to persuade voters that their access to free healthcare depends on preventing the President from rushing through his replacement for Justice Ginsburg.

The third and final significance of this issue is the election itself. If, as seems at least possible, it is a close result and the unprecedented proportion of postal ballots leads to a dispute about which candidate has won, the final decision would rest with the Supreme Court. Unless a new justice has been confirmed by that time, the Court could be split 4-4. This is actually quite a likely scenario, because the 5-3 conservative majority does not necessarily translate into support for the Trump Administration. But a Court unable to make a decision about who should occupy the White House is a constitutional nightmare. At the very least, it would create a power vacuum that the enemies of the United States, and of the West in general, might try to exploit.

It is for this reason that on balance Trump is probably justified in pressing ahead with his nomination. The two women who are seen as front runners are both Roman Catholics, which is bound to make them suspect in the eyes of liberal opinion. Both Amy Coney Barrett and Barbara Lagoa, however, are considered to have proved themselves highly competent judges on the Court of Appeals. In any case, five of the eight justices are already Catholics; two of the others are Jewish and one is Episcopalian.

Judge Lagoa would be the first Hispanic woman to sit on the Supreme Court and thus a worthy successor to Ruth Bader Ginsburg, who was only the second female justice. Americans have more confidence in their judicial system to deliver justice than in their political one to deliver leadership. The process of preserving the ability of the Court to do its job is, unfortunately, bound to be a highly political one. We can only hope that both sides play by the rules laid down by the Constitution and, in the event of a disputed election, that they accept the verdict handed down by a Court that, though Supreme, is still not above the law.