When news of Ruth Bader Ginsburg’s death hit the nation Friday, there was little time to grieve. RBG, a champion for gender equality and underrepresented peoples, had been battling pancreatic cancer for years. But she didn’t let that stop her from continuing her work as the second woman to ever serve on the Supreme Court. Considering all that she did for this country, Ginsburg deserves a proper mourning. However, with a little over a month until the November presidential election, the nation seems to have little time for sadness.
In February 2016, when Justice Antonin Scalia died, he left a vacant spot on the Supreme Court. Former president Barack Obama nominated Merrick Garland for the position. However, Senate Majority Leader Mitch McConnell refused to let the nomination even go to a vote or hearing in the Senate for over a year, citing a precedent of not nominating a SCOTUS justice during a presidential election year. While this decision was technically legal, the political ulterior motive behind it was obvious.
“Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court,” McConnell wrote in a Washington Post op-ed.
Now, four years later, in the same position, McConnell has promised that Trump’s nominee will receive a Senate hearing, regardless of the November election results. If this nominee is appointed, it will be Trump’s third Supreme Court justice pick.
Even more concerning than the clear hypocrisy of this move, rooted in McConnell’s personal political motivations, is the effect it will have on the legitimacy of the Supreme Court.
The judicial branch’s organization is one that doesn’t afford it much power without the trust of America and compliance of the other branches. Courts were created to have “neither force nor will, but merely judgment,” Alexander Hamilton wrote in Federalist Paper 78. This means that the Supreme Court can’t actually enforce the decisions they make. If they make a decision striking down a law Congress passed, Congress theoretically can (and has in several past instances) simply pass a new law that essentially says the same thing or ignore their decision altogether. Since SCOTUS also can’t deem a law unconstitutional until a case is brought all the way up to them from the lower district courts, which can take years, this makes their powers very limited. The president or other executive agencies can also neglect their enforcement responsibility, deeming a SCOTUS judgement meaningless.
The main reason why Congress and the president don’t do this very often is because SCOTUS has legitimacy. The American public trusts that they do their job well and make the right decisions, and therefore, their judgments should be complied with. In most cases, ignoring their decisions would likely hurt elected representatives’ popularity among their constituents.
However, if the American public believes that the next SCOTUS justice is appointed in an unfair, illegitimate manner, leading to a potential 6-3 conservative majority, the Court’s legitimacy could take a huge hit. And like mentioned earlier, the Court’s legitimacy is its lifeblood. Without it, the highest judicial institution in the nation begins to lose its power, as Congress and the president ignore its judgments, citing its illegitimacy as justification. Could our nation successfully operate as a democracy if the judicial check on the executive and legislative branches was essentially eliminated? If the constitutionality of laws and executive orders was no longer challenged? I’m not sure it could.
It is for these reasons that RBG’s potential pre-election replacement should concern both sides of the aisle. While Republicans may see a SCOTUS conservative majority as a positive, if this majority is perceived as being obtained through illegitimate methods, an incoming Democratic majority Congress could theoretically use that as an excuse to ignore any conservative rulings. They could also add more justices to the Court, in a process called court-packing, to create a liberal majority, which would further harm SCOTUS’ legitimacy in our highly polarized climate.
In my opinion, McConnell should follow the rule he created four years ago in order to ensure that the next SCOTUS judge’s appointment is deemed legitimate by the American public. After all, there’s a good chance President Trump will win reelection and get to appoint the next judge anyways. Winning another conservative judge is simply not worth risking the entire legitimacy of the Supreme Court, not to mention defying RBG’s dying wish.