Below is my column on the unfolding future of the Supreme Court after the confirmation of Justice Neil Gorsuch and the elimination of filibusters in the selection of Supreme Court nominees. For years, commentators have been discussing the timing of the retirement of our older justices, including Justice Ginsburg. There was rising concern when Ginsburg decided to stay on the Court past the midterm mark of the second Obama term. Those concerns have now been magnified and realized with the Trump election and filibuster elimination. Of course, the same concerns are raised by the possible retirement of Justice Anthony Kennedy, the swing vote on the current Court. New rumors have arisen this week about Kennedy. However, of all of the older justices, it is replacement of Ginsburg that could produce the most profound changes for the country.
The confirmation of Neil Gorsuch to the United States Supreme Court represents a huge political victory for Majority Leader Mitch McConnell, who gambled on blocking the nomination of Merrick Garland in the hopes of a GOP electoral victory.
It may also have been an equally huge loss for the of Justice Ruth Bader Ginsburg, who ignored increasing calls for her retirement during the Obama administration to avoid the prospect of the flipping of her seat from a liberal to a conservative member. That gamble — whatever calculation — could now cost a sweeping number of key cases hanging by a 5-4 margin, including much of the precedent built around Roe v. Wade, if not an outright overturning of that decision.
Some of the smartest people can stay too long in a game on the assumption that they can gain more with time. Even Sir Isaac Newton was virtually wiped out by such a gamble. Newton invested heavily in the South Sea Company, which was granted a monopoly on trade in the South Seas. The payoff was initially huge as shares continued to rise. Newton made a lot of money and cashed out.
However, with shares still rising, he then tripled down — buying even more stock at three times the original costs. He stayed too long when some were questioning whether the rise was illusory and unsustainable. Then came the crash and Newton’s stock fell faster than his proverbial apple. He lost a fortune for the time £20,000 — virtually the entirety of his estate.
Various advocates suggested for years that Ginsburg might be staying too long on the Court. Those suggestions became more and more blunt as Obama’s second term progressed. What began as polite suggestions that it “might be time to leave” became more and more pointed, if not panicked, in the last two years of the Obama term. Recently, CNN’s Chris Cuomo put it in the most vivid terms and asked a senator, now that Trump is president, “What if Ruth Bader Ginsburg runs out of gas?”
At 84, “running out of gas” was obviously not a reference to the danger of creeping fatigue. For Ginsburg, of course, it was always a difficult decision. After all, she remains intellectually active and fully engaged on the Court. Her opinions continue to be powerful and probing treatments of the law. The precedent at risk is in no small degree precedent of her making. Yet, many justices time their retirements with an eye to who would appoint their replacements. Some have admitted that they try to engineer an appointment by one party or the other to preserve the balance of the Court.
Had Ginsburg retired early in the second Obama term, it is likely that her seat would have been filled even by a Republican-controlled Senate. Any resistance would likely have been further reduced with the second vacancy left by the death of Antonin Scalia. While Scalia’s seat may have stayed open, it is likely that Ginsburg’s would have been filled by an Obama nominee.
Now Ginsburg’s gamble on Hillary Clinton being elected could have sweeping impact on precedent that she played a major role in creating. With the elimination of the filibuster, the next nominee is hardly likely to be nuanced. Without the filibuster, Republicans have no excuse to compromise on a moderate. There is nothing standing in the way to appointing someone who is openly opposed to cases like Roe v. Wade. There is no plausible deniability based on the need to get to 60. In other words, the market has changed and the stock went bust.
The future could not be more evident than one of the first cases to be heard by Gorsuch. In Trinity Lutheran Church of Columbia v. Pauley, the Court could render a sweeping new protection for religious organizations. The church was denied funds to resurfacing its playground because of its religious purpose while giving the money to non-religious organizations. It is a case built for Gorsuch who has always interpreted the religious clauses broadly. While he will likely vote similar to Scalia on such issues, the replacement of Ginsburg by the Trump administration could herald in an era of greater entanglements between church and state.
Gorsuch will also hear Weaver v. Massachusetts and Davila v. Davis, which could define the outer limits of Sixth Amendment rights to counsel. He will also hear Maslenjak v. U.S., which will deal with the power of the government to strip someone of U.S. citizenship over immaterial but false statements made in her naturalization as a Serbian immigrant.
From the use of race in college admissions to abortion to police powers, the GOP could achieve objectives in this administration that have eluded Republican presidents for over six decades. It is not clear if Ginsberg was betting more heavily on herself or Hillary, but many may conclude that the bet was reckless given the stakes on the table. For a few years on the Court, Ginsburg risked Trump “running the table” and the odds now favor precisely such a result.
For Ginsburg, she may reach the same conclusion as Newton who reportedly (and perhaps apocryphally) said, “I can calculate the movement of stars, but not the madness of men.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He testified at the confirmation hearing of Neil Gorsuch in support of his nomination to the Supreme Court.