2020 Vision: Electoral Implications of RBG’s Passing

Potential Role of SCOTUS in Presidential Election

On Sept. 26, 2020, President Donald Trump announced Amy Coney Barrett, a judge in the Seventh Circuit of the U.S. Court of Appeals, as his nominee to fill the seat on the Supreme Court of the United States (SCOTUS) vacated by Associate Justice Ruth Bader Ginsburg’s passing on Sept. 18. Trump, Vice President Mike Pence, and Senate Republicans are pushing to confirm Barrett before the election on Nov. 3, citing the potential need for SCOTUS to settle legal questions around the election. Democrats, led by former Vice President Joe Biden, believe the winner of the election should select the next Justice and are concerned that Republicans’ insistence that SCOTUS will be needed in the election suggests they will not honor the election results. Trump increased these concerns significantly during the first presidential debate on Tuesday, when he reiterated lies about mail-in voter fraud, declared that the Supreme Court will need to evaluate ballots, and encouraged his supporters to “watch very carefully” at the polls. With this unprecedented attempt to undermine free and fair elections, SCOTUS could play a large role in determining the next president. 

Graphic Courtesy of Morning Consult

Typically a two or three month long process, the Trump administration is trying to confirm Barrett in only a month. According to a questionnaire submitted to the Senate Judiciary Committee, Barrett was first contacted the day after Ginsburg passed and was offered the position two days later on Sept. 21. As is standard practice, she began meeting with Senate Republicans on Sept. 29, receiving almost universal praise. Led by Senate Minority Leader Chuck Schumer (D-NY), many Democrats are boycotting the usual courtesy meeting; although, Senators Cory Booker (D-NJ) and Amy Klobuchar (D-MN) have said they will take the opportunity to meet with Barrett. Following the informal meetings, the formal confirmation process will begin. Under the leadership of Senator Lindsey Graham (R-SC), the Senate Judiciary Committee will investigate Barrett and then hold public hearings. The Judiciary Committee will provide a recommendation to the Senate, who will then vote to confirm or reject by a simple majority. The recent confirmations of Justices Neil Gorsuch and Brett Kavanaugh mostly followed party lines and Republicans currently hold a majority 53-47 in the Senate. As of Sept. 30, Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK) have said the election winner should choose the next Supreme Court Justice, leaving Republicans with a one vote majority. 

Democratic leaders are calling for the confirmation to be delayed until after the election. In a statement released by his campaign on Sept. 26, Biden said, “The United States Constitution was designed to give the voters one chance to have their voice heard on who serves on the Court. That moment is now and their voice should be heard. The Senate should not act on this vacancy until after the American people select their next president and the next Congress.” Some leaders have suggested “packing the court,” or expanding the number of seats on the Supreme Court, but Biden refused to answer a question about this proposal during the presidential debate. Both Biden and his vice presidential nominee Kamala Harris have remained purposely neutral, refusing to either support or disavow plans to pack the court. 

Graphic Courtesy of Gallup

Barrett was appointed to the U.S. Court of Appeals for the Seventh Circuit in 2017, and she was confirmed by the Senate 55-43 on Oct. 31, 2017. Three Democratic Senators, Joe Donnelly (former, D-IN), Tim Kaine (D-VA), and Joe Manchin (D-WV), voted in favor of her confirmation. Her nomination was opposed by Lambda Legal, a LGBTQ+ civil rights organization, and many others because of her staunch conservative beliefs. She attended Rhodes College for undergraduate and received her law degree from Notre Dame Law School, where she later taught for many years. She clerked for conservative Justice Antonin Scalia from 1998-1999, who she credits as her judicial inspiration. She is a mother to seven children and a devout Catholic. 

Many people fear the Trump administration will use the Supreme Court to steal the election, pointing to the precedent set by Gore v. Bush in 2000. The presidential election was too close to call on election night and ultimately came down to Florida’s electoral college votes. Following an automatic machine recount in certain counties, Republican nominee George W. Bush led Democratic nominee Al Gore by only 327 votes. The Florida State Supreme Court ordered a manual recount in those counties, and Bush appealed to the U.S. Supreme Court. In an emergency hearing, the Supreme Court ruled the manual recount unconstitutional, giving Florida, the electoral college majority, and the presidency to Bush.