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- For the first time in 27 years, high profile issues from abortion rights to health care will be devoid of Supreme Court Justice Ruth Bader Ginsberg’s judicial imprint.
- Ginsburg died on Friday at the age of 87 due to complications from metastatic pancreatic cancer.
- On Nov. 10, a week after Election Day, the court will hear arguments challenging the constitutionality of Obamacare.
- With a sixth Supreme Court seat on their wish list, conservatives will sharpen their aim at Roe v. Wade, the 1973 Supreme Court decision that legalized abortion in the US and afforded women a constitutional right to the procedure.
- Legal disputes challenging ballots in the 2020 presidential election could also be a bitter part of the judicial landscape in November.
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With the passing of Supreme Court Justice Ruth Bader Ginsberg on Friday, future decisions on a range of high profile issues from abortion rights to government-subsidized health care will be devoid of the longtime justice’s judicial imprint.
If a Trump nominee is confirmed before or after Election Day, it will shift the court’s balance in a sharply conservative direction, increasing the stakes for several controversial cases that would appear before the court.
Health Care
On Nov. 10, a week after Election Day, the court will hear arguments challenging the constitutionality of the Patient Protection and Affordable Care Act, also known as Obamacare, the signature achievement of former President Barack Obama.
“The suit awaiting the Supreme Court argues that when Congress in 2017 zeroed out the law’s penalty for failing to obtain health insurance, it rendered the entire law unconstitutional,” The New York Times reported.
The Trump administration has backed states who argue that the law can’t work with the loss of the penalty, known as the individual mandate. In 2018, a federal court judge in Texas agreed with this reasoning but halted any actions pending an appeal, and last year, an appeals judge deemed the mandate unconstitutional but didn’t render a decision on the remainder of the law, leading the Democratic-led defendants to ask for the Supreme Court to hear the case, according to The New York Times.
In 2012, the Supreme Court upheld Obamacare in a landmark 5-4 decision, with Ginsburg voting to affirm the law, along with Chief Justice John Roberts and Associate Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. If Roberts votes to uphold the law again, with the loss of Ginsburg, there would be a 4-4 tie and the lower court's decision would stand, invalidating the law.
Abortion Rights
For decades, conservatives have vowed to overturn Roe v. Wade, the 1973 Supreme Court decision that legalized abortion in the US and afforded women a constitutional right to the procedure. Shortly after Brett Kavanaugh joined the Supreme Court in 2018, conservative-led state governments across the country sought to enact tough abortion restrictions that would bring forth legal challenges and in turn, lead to a Supreme Court decision overturning the procedure, according to The New York Times.
Last year, in a review of some of these laws, Clarke D. Forsythe, senior counsel at Americans United for Life, wrote that "a prohibition on early abortions may be the type of law least likely to attract Supreme Court review." He cited the need for a 6-3 majority, which is within sight at the moment, along with Chief Justice Roberts seeking to manage the pace of abortion restrictions and the ability of the court to hear any abortion-related case that may conflict with Roe v. Wade.
This past June, in a 5-4 decision, the court struck down a Louisiana law that forced doctors performing abortion procedures to have admitting privileges at local hospitals, according to The New York Times. Ginsburg again sided with Breyer, Sotomayor, and Kagan, who then joined with Roberts.
"The future of abortion rights could now depend on Trump-appointed Justice Brett Kavanaugh, who dissented in the Louisiana case and said he would have ordered more lower-court fact-finding," Bloomberg reported. "During his confirmation hearings in 2018, Kavanaugh declined to say whether the landmark 1973 Roe v. Wade abortion-rights ruling was correctly decided or whether he would vote to uphold it as a justice."
The 2020 Election
In Bush v. Gore (2000), the Supreme Court effectively stopped the vote recount that was ordered by the Florida Supreme Court in the presidential race between then-Gov. George W. Bush of Texas and then-Vice President Al Gore. The vote was 5-4, with Ginsburg dissenting.
"The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: federal courts defer to state high courts' interpretations of their state's own law. This principle reflects the core of federalism, on which all agree," Ginsburg wrote. ″Were the other members of this court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court."
With the continuous reports of legal challenges to the upcoming election, especially with the president challenging the legitimacy of many ballots, any disputes that come before the court potentially render a 4-4 split. The decision of the lower court would stand.