The Ginsburg Gamble and the Future of the Supreme Court

225px-ruth_bader_ginsburg_scotus_photo_portrait 500px-The_CardsharpsBelow 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.

136 thoughts on “The Ginsburg Gamble and the Future of the Supreme Court”

  1. I cannot imagine a less sympathetic figure in Washington.

    You can address this problem by requiring federal judges to face retention-in-office referenda at 12 year intervals, to be subject to recall petitions at least once during each 12 year term, and to be subject to mandatory retirement some time between their 72d and 76th birthday (depending on what their electoral calendar is). Had Ginsburg faced a retention referendum after a probationary period, she’d have been blown off the Court 20 years ago.

      1. I have the opposite opinion. I think humans get smarter and more wide ranged in view as they get over 65 and then get older. I do not like the notion of a President being elected if he is under 60. Judges get smarter too. It is perspective not IQ. Ruth is probably better now than when first put on the Court. A Justice is not doing surgery. Old doctors are a different horse of a different color. Gorsuch is too young and is somehow related to Al Gore. Or sumsuch.

  2. More Titanic fails from the Dems. It survival of the smartest in DC and they’re in a gun fight with a paper knife. Funny, the media always misses this story.

  3. DDT’s real slogan is to ‘Take America backwards again.’ If Ginsberg is replaced by a right wing like Gorsuch or Scalia then this country will slide even further back. Oligarchy will be even more entrenched. Religion will become even more irritating. The inequality between the genders will widen. But, hey, great hair and tan. The lying sack of s*^t plays more golf than anyone before him. This is a great country but is dissolving before our eyes. Evolution is all about going forward, progressing.

    1. issac – if either Ginsburg or Kennedy is replaced, it will drive the snowflakes mad. I will invest in ‘safe spaces,’

    2. “Evolution is all about going forward, progressing.”

      Just because you don’t like the direction we are going doesn’t mean we aren’t moving forward or progressing. There’s a lot of damage YOUR definition of progress has done to this country and climbing out of that wreckage IS progress.

      Your welcome.

  4. The goal of the GOP is to cement the hegemony of corporations and to give religious entities more money and control over our lives by allowing them to enlarge their power. The theocrats in congress believe in a god who hates humans, workers, women and voting. Supreme Corporate Court picks from now on will be procorproation anti worker and anti women hacks. Gorsuch is a “fine” example of such a pick.

    1. I prefer “granny.” Don’t we all value the considered opinions of 84-year-olds on matters of national importance? I know I do. And granny did somehow manage to call Lindsey Graham a “women of the Senate,” so it’s hard to know whether to laugh or cry at her insights. .

      1. Why are insults directed at Lindsey Graham ‘insights’?

  5. If they repeal Roe v. Wade then women who want to abort will just have to find pills on the street to eat when they get knocked up. And then the RepubliCons will just have to stop subsidizing babies in this welfare state that we have. If they stopped the food stamp thing then 14 year olds will not get knocked up so that they can say: “I need to get my check”.
    We will probably be in a nuclear war in a month or so and all this will not matter.
    Hang On Ruth! Go Babe!

    1. RvW isn’t going to be repealed. Relax, take deep breaths, and repeat to yourself that it isn’t one of the most important issues facing the court today.

      1. Yes, God forbid we take a look at the genocide of babies that is abortion used as birth control.

        1. Take your Faux Newz glasses off. It’s merely birth control–there is no baby. If you look behind the curtain, you’ll see that the people who have wound you up don’t like abortion because they yearn for the good ole days when their wimmin folk were property. If a woman can control her own reproductive system she no longer has to submit to the role of chattel. This is for jimmy22

          1. I see biology is not your strong suit, nor is moral discourse.

            1. dss,
              We may not agree on what a deficit means, but we agree here.

              I don’t need Fox to tell me that a human life is being destroyed by using abortion as a means of birth control. Also, a women gives up her “reproductive rights” when she starts carrying another human.

          2. “If a woman can control her own reproductive system she no longer has to submit to the role of chattel.”

            So Marky Mark, you’re arguing women who get abortions should be treated as chattel? After all, in most cases the abortion is chosen because they COULDN’T control their reproduction system. That’s a novel approach to overturning Roe v Wade however, but I seriously doubt Pro-Life supporters and Pro-abortion supporters would agree with you.

            Thanks for playing though.

  6. If she lives to age 88 or more then Trump will have to win re-election to appoint her successor. If she lives to 92 then the Cons will have to run another Trumpster to win and then replace her. And so on.
    I predict that she will serve until age 97.
    We had a guy on the 8th Circuit who did not retire until age 97. He writes a book titled: Objections At Trial. It is a spiral handbook for federal court lawyers to have in hand when they try cases. His name is Myron Bright.

  7. Ginsburg is evil. There are women who were evil doers:

    Herodias – Gets John’s head copped off
    Athaliah – Wicked Queen of Judah kills the babies
    Jezebel – Wicked Queen of Israel kills the prophets of Jehovah

    How does Sir Isaac Newton fit into this? How does William Tell fit into this?

    1. Well Newton is a white cis male, so therefore part of the most groups ever to walk to the planet.

      That’s sarcasm.

  8. Professor Turley: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.”

    Ahh yes, the party of smaller government.

    1. As opposed to the party that claims they value rights…unless those rights involve the second amendment or equal treatment under the law?

      1. The Democrats have never said they were for smaller government while expanding it.
        Bush 43 took office with a trillion dollar surplus and 8 years later. . .
        Bait and switch. Smells like conservatism to me.
        Care to continue?

        1. The surplus is a fallacy. Not that I think President Bush made a smaller govt. but don’t use the b.s. surplus.

          1. No, the surplus was real enough. It was just nowhere near as large as he claims (a surplus of 9% of gross domestic product would be absurd) and it’s not attributable to anything done by the Democratic congressional caucus.

        2. Bush 43 took office with a trillion dollar surplus

          The only trillion dollar surplus was in your imagination. The surplus in the Social Security funds briefly balanced out the deficits in the rest of the federal budget. The total surplus reached its peak in FY 1999/2000, when it stood at $236 bn, or 2.2% of gross domestic product. The sum of outstanding federal debt (held by the public, by the Social Security funds, and by the Federal Reserve) has not declined in nominal terms since 1957.

          The budget surpluses recorded in 1998-2001 had an important prerequiste: that the Democratic Party lose control of Congress and it’s committee architecture. Throughout the period running from 1990-1995, the ratio of outstanding federal debt to domestic product continued to increase, in spite of the tax increase that Pres. Bush agreed to in 1990.

          What you neglect to mention is that the Republican Party has had control of Congress and the Presidency for only two brief periods: five months in 2001 and the four year period running from 2003 through 2006. Over the period running from 1995 through 2006, the Republican plurality in Congress averaged 17 seats, far narrower than the Democratic pluralities which prevailed prior to 1995. Also, the supermajority requirement in the Senate prevents accomplishing much even if the executive hadn’t been distracted by foreign policy.

          In the real world in which we live, the ratio of public expenditure to domestic product reached a plateau in 1974 and hardly varied for the next 35 years. BO made a concerted effort to ramp up the role of public allocation in the economy, among his many other ill-considered (nay, falgitious) ideas.

          1. “Time and time again, anyone reading the mainstream news or reading articles on the Internet will read the claim that President Clinton not only balanced the budget, but had a surplus. This is then used as an argument to further highlight the fiscal irresponsibility of the federal government under the Bush administration.

            The claim is generally made that Clinton had a surplus of $69 billion in FY1998, $123 billion in FY1999 and $230 billion in FY2000 . In that same link, Clinton claimed that the national debt had been reduced by $360 billion in the last three years, presumably FY1998, FY1999, and FY2000–though, interestingly, $360 billion is not the sum of the alleged surpluses of the three years in question ($69B + $123B + $230B = $422B, not $360B).

            While not defending the increase of the federal debt under President Bush, it’s curious to see Clinton’s record promoted as having generated a surplus. It never happened. There was never a surplus and the facts support that position. In fact, far from a $360 billion reduction in the national debt in FY1998-FY2000, there was an increase of $281 billion.

            Verifying this is as simple as accessing the U.S. Treasury (see note about this link below) website where the national debt is updated daily and a history of the debt since January 1993 can be obtained. Considering the government’s fiscal year ends on the last day of September each year, and considering Clinton’s budget proposal in 1993 took effect in October 1993 and concluded September 1994 (FY1994), here’s the national debt at the end of each year of Clinton Budgets:

            Year Year
            Ending National Debt Deficit
            FY1993 09/30/1993 $4.411488 trillion
            FY1994 09/30/1994 $4.692749 trillion $281.26 billion
            FY1995 09/29/1995 $4.973982 trillion $281.23 billion
            FY1996 09/30/1996 $5.224810 trillion $250.83 billion
            FY1997 09/30/1997 $5.413146 trillion $188.34 billion
            FY1998 09/30/1998 $5.526193 trillion $113.05 billion
            FY1999 09/30/1999 $5.656270 trillion $130.08 billion
            FY2000 09/29/2000 $5.674178 trillion $17.91 billion
            FY2001 09/28/2001 $5.807463 trillion $133.29 billion

            As can clearly be seen, in no year did the national debt go down, nor did Clinton leave President Bush with a surplus that Bush subsequently turned into a deficit. Yes, the deficit was almost eliminated in FY2000 (ending in September 2000 with a deficit of “only” $17.9 billion), but it never reached zero–let alone a positive surplus number. And Clinton’s last budget proposal for FY2001, which ended in September 2001, generated a $133.29 billion deficit. The growing deficits started in the year of the last Clinton budget, not in the first year of the Bush administration.

            Keep in mind that President Bush took office in January 2001 and his first budget took effect October 1, 2001 for the year ending September 30, 2002 (FY2002). So the $133.29 billion deficit in the year ending September 2001 was Clinton’s. Granted, Bush supported a tax refund where taxpayers received checks in 2001. However, the total amount refunded to taxpayers was only $38 billion . So even if we assume that $38 billion of the FY2001 deficit was due to Bush’s tax refunds which were not part of Clinton’s last budget, that still means that Clinton’s last budget produced a deficit of 133.29 – 38 = $95.29 billion.

            Clinton clearly did not achieve a surplus and he didn’t leave President Bush with a surplus.”

            1. The outstanding Treasury issues increased in nominal terms, but the sum of issues held by parties other than the Social Security funds declined. Social Security taxes are used to purchase Treasury issues and only Treasury issues. Some portion of the collection is liquidated and devoted to paying beneficiaries and re-imbursing service providers. The remainder is and always has been to provide general financing to the Federal Government. The Social Security ‘trust funds’ are an accounting convention, not a stand-alone pension fund, and Social Security is, in truth, and income transfer program. You’re fixated on the fact that one set of federal accounts is running a deficit and one set is running a surplus. The sum of both sets were in surplus over the period running from 1998 to 2001.

              1. “Looking at the makeup of the national debt and the claimed surpluses for the last 4 Clinton fiscal years, we have the following table:

                Fiscal Year End Date Claimed Surplus Public Debt Intra-gov Holdings Total National Debt
                FY1997 09/30/1997 $3.789667T $1.623478T $5.413146T
                FY1998 09/30/1998 $69.2B $3.733864T $55.8B $1.792328T $168.9B $5.526193T $113B
                FY1999 09/30/1999 $122.7B $3.636104T $97.8B $2.020166T $227.8B $5.656270T $130.1B
                FY2000 09/29/2000 $230.0B $3.405303T $230.8B $2.268874T $248.7B $5.674178T $17.9B
                FY2001 09/28/2001 $3.339310T $66.0B $2.468153T $199.3B $5.807463T $133.3B

                Notice that while the public debt went down in each of those four years, the intragovernmental holdings went up each year by a far greater amount–and, in turn, the total national debt (which is public debt + intragovernmental holdings) went up. Therein lies the discrepancy.”

                You can try to explain it any way you want, each year there was a dept increased so there was no surplus.

                1. There was a surplus. You’re confused as to what these numbers mean. The increase in the outstanding Treasury issues is composed of obligations to the public, obligations to the Federal Reserve (which buys from the public and sells to the public on the secondary market), and obligations to the Social Security fund. The Social Security funds are a component of the federal government and contain nothing but Treasury issues. This is just what one component of the federal government ‘owes’ to another and does not constitute an increase in total public sector borrowing.

    1. Please don’t send that shameful woman here. I’m a public servant in New Zealand, and we are all very neutral in our public dealings where our jobs are concerned. She is a partisan and every ruling she did or does will be seen under that light.

      1. Brian Marshall – I was hoping she would retire to New Zealand, not get a job there in the public sector.

  9. Perhaps after two more justices retire, the left will now be open to expanding the seats on the court in the hope of diluting what they believe to be the conservative problem.

    1. One can only hope. Politics aside it’s insane that we allow just 9 people to have the final world on legality and constitutionality of our laws and executive actions.

    2. We don’t need to hear more from them. If you’re going to expand the census of the judiciary, start with the trial judges. One thing we would benefit from is a mess of federal magistrates to conduct deportation proceedings, Judge Wapner-style. Preventive detention, two months in the slammer for illegal entry, then it’s back to where you came from. If Mexco says they won’t take ’em, put ’em in a motor boar off Puerto Vallarta and point ’em toward the coast.

      1. You bring up a valid point. I am not as familiar with the case load of a US District Court. But I know for a fact that in our state both District (misdemeanors and small claims) and Superior (Felony and general civil) are terribly overwhelmed in some counties, especially Superior. The numbers of judges is set by the legislature and it is woefully inadequate. As a result accused felons spend months more in jail pre-trial and civil litigants can often wait years for a trial. But adding judges is not a priority of the legislature because it isn’t as sexy as more politically exciting projects, so we have to endure this mess.

        1. To some extent its understaffing and to some extent its the institutional culture and Parkinson’s law. It took the State of Arizona five years to process the Jodi Arias case. In New York, even had she had a petty jury trial, the smart money says they’d have had a verdict in 13 months. Even complicated organized crime prosecutions don’t take five years in New York.

          1. dss – jodi arras was an outlier. She changed attorneys several times and each needed time to prepare for trial.

              1. dss – worked for the judge. She was sitting in jail the whole time, so it was no skin off anyone’s nose. Maricopa Co. has x no of courts divided into domestic, civil and criminal. Jury panels are pulled for criminal and civil trials every day, up to 1000 people depending on the number of trials starting and complexity. Her’s wasn’t the only murder in Maricopa Co.

              2. Paul and dss..
                A public defender’s office typically does not provide a multi-$million defense team for ANY defendant.
                A more typical situation would be a defendant who gets a “bare-bones” defense and a fast “McTrial”.
                A multi- million $$ defense team will likely result in a much longer trial, and a much longer process overall.

  10. I don’t expect John Galt will be knocking on her door anytime soon.

  11. Hey Issac: If Trump is an “idiot” as you say, how do you characterize your heroine Ginsburg?

    “Activate the 911 System.” “Gurgle..gurgle.” It’s OK, only agonal breaths. Remember, compressions only, one per down beat to the song “Stayin’ Alive” (no pun intended) by the Bee Gees.

  12. The law should be changed to require mandatory retirement at 80, avoiding the problem of justices staying on past their useful shelf lives, either out of ego, inability to acknowledge their own mental and/or physical limitations, or simply that they don’t know what else to do with themselves.

    1. The retirement age for judges in New York is 70, with the opportunity to continue to hear cases for an additional six years (contingent on the approval of the Administrative Board of the Courts, IIRC). That’ll do. If they wish to continue working, they can hang out a shingle or see if some firm will hire them.

  13. President Trump made 21 picks for SCOTUS nominations prior to being elected.

    In no particular order they are for more information.

    The full list of the twenty-one individuals Mr. Trump will consider is below: A second URL gives what i think are the top 11 but at least have a para pr two of description.

    Note that nominees previously declined by the Senate are not included.

    1. Keith Blackwell

    2. Charles Canady

    3. Steven Colloton

    4. Allison Eid

    Now a Justice 5. Neil Gorsuch

    6. Raymond Gruender

    7. Thomas Hardiman

    8. Raymond Kethledge

    9. Joan Larsen

    10. Mike Lee

    11. Thomas Lee

    12. Edward Mansfield

    13. Federico Moreno

    14. William Pryor

    15. Margaret A. Ryan

    16. Amul Thapar

    17. Timothy Tymkovich

    18. David Stras

    19. Diane Sykes

    20. Don Willett

    21. Robert Young

  14. Is she still here? I thought she was moving to New Zealand if Trump won. So much for promises. I hope she runs out of gas, especially her mouth. I, for one, will be glad when she has departed.

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