Replacing Ginsburg Will Pull Court Right

The passing of renowned liberal Supreme Court Justice Ruth Bader Ginsburg on Friday Sept. 18 immediately sparked a heated conflict over her potential successor. The current Supreme Court is ideologically split, and Supreme Court justices receive lifetime appointments, so Justice Ginsburg’s successor will likely decide our generation’s most defining issues. President Trump and Senate Majority Leader Mitch McConnell have announced their intention to appoint and confirm Justice Ginsburg’s replacement quickly, despite the upcoming federal elections in which Democrats could gain control of both the White House and Senate. While most of the recent analysis has focused on the impropriety of rushing the nomination and confirmation despite democratic norms and precedent, less attention has been paid to the impact of a potential replacement on the Court itself.

The data visualization above represents the ideological spread of the Supreme Court prior to Justice Ginsburg’s passing overlayed with the ideological leanings of her potential replacements. The data are taken from a report published by Epstein, Martin, and Quinn called Replacing Justice Ginsburg that uses Martin-Quinn scores to chart current justices and potential replacements ideologically. Martin-Quinn scores are a one-dimensional representation of Supreme Court ideology based on a probability model (Martin, Quinn, and Epstein 2004).

This approach differs from other methods in that it omits several inaccurate metrics of ideology, such as the political party of the nominating President and the party that holds the Senate majority. Epstein et al. find that this metric, heavily relied upon in the Spitzer-Cohen model, does not reliably map out the Court’s ideology. Comparatively, the Martin-Quinn scores take into account highly probative factors such as voting in cases, circuit of origin, and opinion authorship to develop estimates of a particular justice’s ideology. The benefit of this approach is that it reliably finds the most likely coalition partners for an opinion regardless of the exact issue before the Court.

A major downside to the model is that the underlying data fail to take into account clearly identifiable policy preferences on specific issues (e.g., abortion), which renders the score unreliable in predicting the outcome of individual cases (Farnsworth 2007). In other words, an individual justice’s decision on an individual case may deviate sharply from what might be expected by looking at their score. In the 2019-2020 term, Justice Gorsuch voted with the Court’s liberal wing on landmark cases (Bostock v. Clayton County and McGirt v. Oklahoma), despite a Martin-Quinn score that suggested otherwise. Even with the occasional surprise ruling, this approach is helpful in determining the identity of the median justice and the ideological center of the Court.

President Trump has committed to nominating a conservative woman as Justice Ginsburg’s successor. Two women are considered the front runners: 7th Circuit Judge Amy Coney Barrett and 11th Circuit Judge Barbara Lagoa. Both potential nominees would be markedly to the right of Justice Ginsburg and represent a departure from the 5-4 conservative-liberal balance that has made up the Supreme Court since the 1990s. According to the Martin-Quinn score, the Court’s center prior to Justice Ginsburg’s passing was close to the overall ideological center. If Barrett, the most likely nominee, were to be confirmed, she would shift the center of the Court to the right.

The institutional underpinnings of a 6-3 conservative majority Supreme Court would be markedly different from 5-4 conservative majority. Most prominently, the median Justice—the individual who would cast the deciding vote in a 5-4 decision—would be Justice Brett Kavanaugh instead of Chief Justice John Roberts. Kavanaugh is ideologically more conservative than Roberts, which suggests more conservative decisions should Barrett be confirmed. There were a number of cases from the 2019-2020 term where Roberts sided with the Court’s liberals in 5-4 decisions, such as Department of Homeland Security v. Regents of the University of California, which upheld the legality of the Deferred Action for Childhood Arrivals (DACA) program, or June Medical Services v. Russo, which found a law restricting abortion access to be unconstitutional. Assuming the Martin-Quinn score for Barrett is correct and there are no surprises, we would expect her to vote with the conservatives in those landmark cases to form a different majority.

With oral arguments for October 2020-2021 term on the horizon, it is worth considering how Justice Barrett might vote on high-interest cases. At issue in California v. Texas, arguably the most divisive case, will be the constitutionality of Obamacare’s individual mandate rule. Other high-interest and polarizing cases include Department of Justice v. House Committee on the Judiciary and Jones v. Mississippi. The former will consider whether the Judiciary Committee can access unredacted grand jury materials from the Mueller probe. The latter will consider when sentencing a juvenile to life in prison without the possibility of parole would be considered “cruel and unusual punishment” under the 8th Amendment. In all of these cases, a more conservative outcome is a foregone conclusion if Barrett is nominated and confirmed.

The 2020 federal elections are fewer than 50 days away, with control of the White House and Senate both clearly up for grabs. Despite the ability to hear from the American people, President Trump and his Republican allies in the Senate seem poised to confirm a replacement for Justice Ginsburg. As we enter the debate over norms and the judicial confirmation process, we should not forget the large impact the Court has on the lives of ordinary Americans. Any of the potential replacements are likely to shift the Court in a more ideologically conservative direction, which could affect politics and policy for decades to come.

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Martin, Andrew D., Kevin M. Quinn, and Lee Epstein. 2004. “The Median Justice on the United States Supreme Court.” North Carolina Law Review 83 (5): 1275-1322. https://scholarship.law.unc.edu/nclr/vol83/iss5/6

Farnsworth, Wade. 2007. “The Use and Limits of Martin-Quinn Scores to Assess Supreme Court Justices, with Special Attention to the Problem of Ideological Drift.” Northwestern University Law Review 101: 143-154. https://scholarlycommons.law.northwestern.edu/nulr_online/111/