What Will Happen to the Supreme Court Now With Ruth Bader Ginsberg Gone?
By: Vinod Bakthavachalam
Tags: US Politics, Politics, Election 2020, Ruth Bader Ginsburg, Elections

Short Term, Not Much Will Be Different; Long Term It Is Still A Structural Deficiency

The sad passing of Ruth Bader Ginsberg has opened fears among liberals that Trump and Mitch McConnel will hastily approve another conservative justice, cementing the Supreme Court for conservatives for decades. The reality is that was already likely to happen (and make no mistake both will do everything in their power to ensure it does happen). However, this new judicial opening will likely not change either the short term or long term direction of the court.

To unpack this we can take a look at how the ideology of each Supreme Court justice explains who has power in the Supreme Court.

The ideology of each justice on the Supreme Court is incredibly important to how cases are decided. In any standard hearing of a case, there are nine justices who vote to affirm or reverse the lower court’s ruling on a given case. The outcome of the court will be an affirmation if a majority of justices affirm and a reversal if a majority of justices reverse.

The table below shows the likelihood of a justice voting for the liberal outcome of a case split by justice ideology (as defined by a justice’s Martin-Quinn score) and whether the case was on the front cover of the NY Times, a measure of its lasting significance. In both cases conservative justices are 41% likely to vote for the liberal outcome while liberal justices are 69% likely if it is not on the front page and 80% likely if it is. Hence, justice ideology has a strong relationship with their voting behavior.

And note that while a justice’s ideology does drift liberal over time, it typically doesn’t drift enough to change them from a conservative to a liberal, so which side they start out on is effectively where they stay during their appointment.

As a result how liberal/conservative the median justice is can essentially decide the outcome of a given case as that signals where the opinion of a majority of justices lie. If the median justice is liberal, then the majority of justices hold liberal views while if the opposite is true, then the majority hold conservative views. The intuition is the same as that of swing voters deciding elections.

Conservatives have often understood all this more than liberals. They have set up an entire apparatus to prepare and select judges for the Supreme Court and used the issue to turnout voters. The effectiveness of these operations speaks for itself as the Supreme Court has most often been a conservative leaning institution.

Only three time periods stand out as being majority liberal: the late 1930s, 1960s, and Obama’s last years in office from 2014 to 2016. It is not a coincidence that these periods saw the expansion of civil rights with, for example, the Warren Court outlawing racial segregation in the 1950s/1960s and the legalization of gay marriage in 2015.

Looking ahead to what will happen when Ruth Bader Ginsberg’s seat is replaced, we can examine the current set of justices with their Martin-Quinn Score (again more negative means more liberal and more positive means more conservative) along with their age.

Adding a conservative judge, regardless of whether they are another Neil Gorsuch or extreme Clarence Thomas, will shift the median justice from Brett M. Kavanaugh to John G. Roberts Jr, meaning that the overall lean of the median justice will be quite similar to today. This means that the court will lean conservative…like it has for the past four years. This does not signal a dramatically more conservative court than has already existed recently.

Things in the longer term look more pessimistic for liberals. The next oldest justice is Stephen G. Bryer, meaning he is the next likeliest justice to leave the court. If that happens and Republicans are in power to replace the vacant seat, then the median justice would likely become Neil M. Gorsuch, which would signal a dramatically more conservative court.

In general to get pack into power on the court, liberals would need to have two conservative justices retire/be replace with more liberal justices to swing the median justice ideology to their side. Given, the age of the conservative justices, that is unlikely to happen for a long time. This is especially true as older justices try to time their retirement with when their party is in power to ensure they are replaced with a like-minded justice.

Basically, while very sad that a transformative and influential figure like Ruth Bader Ginsberg has passed away and left a vacancy on the bench, in the short term, barring any other unexpected events, the court is unlikely to change too much.

However, the long term prospects are as bleak as ever, and we are slated to see increasingly fraught fights between the two parties over the Supreme Court, which is becoming increasingly polarized as well. The Supreme Court has become another structural deficiency in American politics that needs to be reformed.

A better functioning Democracy would be set up to decouple the salience of choosing a Supreme Court justice from the result of president and senate elections to reduce the impact of polarization in the long term. There are numerous policies to achieve this ranging from term limits to adding a bipartisan merit selection committee. America needs to consider these and other reforms in order to restore balance to the political system. The process today leaves the selection of judges directly exposed to the polarized electorate, which in turn exacerbates voter polarization as many realize the stakes of each election.