Few outside America would typically care about the United States Supreme Court, or its composition. It has always been a domestic affair. However, the recent death of a judge of this court has rattled global markets and dominated the headlines across the world. And for good reason.
Until recently, the name of judge Ruth Bader Ginsburg meant little to those outside the US. The death of the female associate justice of the US Supreme Court on September 18 at the age of 87 nevertheless raised questions over the future direction of the court and dominated the news as the US enters the last month before the presidential election.
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With the race to the White House becoming increasingly tighter than previously predicted, it is widely expected the apex court could somehow play a role in determining who is the next leader of the world superpower. That is, of course, not entirely a US domestic affair.
Impact beyond US borders
There are decisions taken by the court that affected the lives of millions outside the US. Most recently, the court upheld President Donald Trump’s travel ban on Muslims. In 2000, the court decided the outcome of the presidential election between George W Bush and Al Gore — another decision that obviously changed the world forever. The impact of the war on terror, launched by the winner, George W Bush, is still being felt around the world today, especially in our region following the invasion of Iraq in 2003.
A similar decision, to determine the outcome of the 2020 elections, is what Trump apparently counts on in case the November race goes to the wire. Thus, he is intent on nominating a replacement of Justice Ginsburg before the elections despite the opposition of many including members of his own Republican Party.
Conservatives vs liberals
The US Supreme Court, created by the Judiciary Act of 1789, is comprised of nine judges: one Chief Justice and eight associate Justices. They are there for life and cannot be fired or replaced unless impeached by the Congress, thus, some say they wield power that overrides executive or legislative decisions and laws that are not in line with the letter and spirit of the constitution. The court has always been divided on ideological line — the conservatives and the liberals. Traditionally, Republican presidents appoint conservative judges while the Democrats appoint liberal ones. Currently, the court is stacked against the liberals, especially after the death of the liberal Justice Ginsburg.
The conservative group includes Chief Justice John Roberts, Justice Samuel Alito, both appointed by George W. Bush, Justice Clarence Thomas, appointed by George Bush the father, and Justices Neil Gorsuch and Brett Kavanaugh, both appointed by Trump. The liberal group, until recently, included two Bill Clinton appointees, Justices Ginsburg and Stephen Breyer and two Barack Obama appointees, Sonia Sotomayor and Elena Kagan. The current court is one with the most conservative leaning in modern US history. With the death of Ginsburg, the conservatives now outnumber the liberals by five to three. If Trump is able to appoint the ninth justice, the conservatives will gain another seat, which will of course affect America for decades to come.
A liberal leaning court has been key in issuing and supporting civil rights laws, the rights of women to abortion and other progressive decision. A conservative court, such as the one Trump and the Republicans aspire to have, will help boost an America that is increasingly turning right. It is once in a lifetime chance for the American right establishment. And that absolutely is not a domestic affair.
In a widely circulated quote, Justice Ginsburg, on deathbed, reportedly told her granddaughter Clara Spera that her dying wish was that “I will not be replaced until a new president is installed,” according to the National Public Radio.
She was referring to a precedent during Obama’s last year in office. In February 2016, Associate Justice Antonin Scalia, a conservative, died. President Obama nominated liberal judge Merrick Garland to replace Scalia. However, the Republican-controlled Senate rejected the nomination, telling Obama that he shouldn’t do that in an election year and that the next president should appoint Scalia’s successor. President Trump, two days after moving into the White House, appointed the conservative Gorsuch.
The Democrats have been reminding Trump and their Republican colleagues in the Senate of their opposition to Obama’s move. Trump, however, is not expected to change his mind. The polls keep giving his rival, former Vice-President Joe Biden, a decent lead in most states. Last year, it appeared that Trump was on his way to win another term. But the coronavirus pandemic and his widely-criticised poor response to the outbreak, the crumpling economy and the rising number of unemployed Americans, and finally the Black Lives Matter protests following the death of George Floyd in police custody in Minnesota in July, all seemed to have dramatically weakened Trump’s chances of winning the election.
That explains his refusal so far to commit to a peaceful transition of power in case he lost the race to Biden. In addition, there is the issue of mail-in-ballots, which will allow voters in some states to vote by mail, due to the coronavirus containment measures. Experts believe that most Biden supporters prefer the mail ballots. Trump’s supporters meanwhile prefer going to the polling stations because generally they oppose the Covid-19 measures, including wearing the mask — they will make it a point to vote in person on November 3. Trump has been claiming for months that the mail voting is aimed at rigging the elections in favour of Biden.
Therefore, it is expected that if he loses, the Supreme Court will be the final authority to decide the outcome — again. Thus, he insists, despite all opposition, to fill the Ginsburg vacancy with a conservative justice. A conservative-stacked court, Trump thinks, will ensure him a second term. And that of course is an international affair. Big time.