SCOTUSblog by Adam Feldman 1/17/2019
The saga over Justice Ruth Bader Ginsburg’s health seems to ebb and flow from the headlines almost daily. Part of the mystery relates to the amount of information shared with the public. We know that, while treating Ginsburg for rib fractures, doctors found malignant lesions in her lungs that were promptly removed, and that subsequent tests have shown no evidence of any other cancer. Ginsburg has since missed oral arguments and is reportedly recovering at home while keeping current with the court’s business through reading briefs and written transcripts of oral arguments.
Any major health scare for Ginsburg at 85 is a concern, and she is not out of the woods yet. Meanwhile news outlets such as Politico have reported that the White House is looking for potential replacements if the justice cannot continue on the court. Much of the future direction of the court rests on Ginsburg’s health, as a Trump appointment to her seat would almost certainly lead to the most conservative Supreme Court in recent memory.
Members of the public appear aware of the uncertainty surrounding Ginsburg’s health, even with the reassurances that she is cancer-free. I recently posted on Twitter a poll that asked what will happen to Ginsburg’s seat on the court depending on President Donald Trump’s length of time in office. The poll asked if respondents thought Trump would remain in office for one or two terms and whether Ginsburg would remain in her seat for the length of Trump’s term(s) of office. Although the majority of respondents, 55 percent, think Trump will last one term and Ginsburg will remain in her seat throughout the term, a not insignificant minority, 22 percent, feel Ginsburg will not remain in her seat even if Trump is only a single-term president. The other 22 percent of respondents think Trump will be re-elected to a second term, with 86 percent of this group thinking that Ginsburg would not last through a second Trump term. Only three percent of total voters think Ginsburg would retain her seat through a second Trump term.
The results of this poll express a mix of expectations that chiefly appear to depend on whether Trump is re-elected. Many political commentators including those on the left were aware of Ginsburg’s potential frailty leading up to the last presidential election and pressed her to retire in time for President Barack Obama to fill her seat with a younger justice. Commentators have followed up on these observations following Ginsburg’s most recent health concerns. However, given Chief Judge Merrick Garland’s unsuccessful nomination, Ginsburg’s decision seems more justifiable because the confirmation of a successor appointed by Obama might not have been guaranteed.
Why is this seat more important than Scalia’s or Kennedy’s?
If Trump fills Ginsburg’s seat, it will be the first time this president has the opportunity to shift a seat on the court from a strong liberal to a staunch conservative. Although such a shift has happened before, it is at best debatable whether it has happened on such an already conservative court. Let’s take a look.
Marshall to Thomas
The only comparable ideological shift occurred when Justice Thurgood Marshall stepped down from the court and Justice Clarence Thomas replaced him. The polarity of difference in these justices’ views cannot be overstated. Marshall was a pillar of liberalism in the Warren and Burger Court years, while Thomas has been arguably the most conservative justice of this generation. This difference is measurable as well. A justice’s vote can be viewed as most consequential when it shifts the outcome of a decision. We see this in cases decided by one vote, in which a shifted vote would switch the outcome from one side to the other.
First a look at these closely decided cases from Marshall’s last years on the court:
The figure only looks at 5-4 decisions in these three terms. The first column shows the number of 5-4 decisions in which the court’s liberal minority, at that time Marshall and Justices William Brennan, Harry Blackmun and John Paul Stevens, formed a bloc in dissent. (When Brennan retired in 1990, the fourth most liberal justice on the court was likely Justice Byron White, who was a swing vote for liberals in prior terms.) The next column shows the number of times the liberal bloc was in the majority with the aid of the most common swing vote (The one observation in 1990 involved both White and Justice Sandra Day O’Connor siding with the liberals.). The third column shows the number of times Marshall was in dissent in 5-4 decisions in each of these terms and the fourth column shows the number of times Marshall was in the majority in 5-4 decisions in these terms.
Marshall’s votes had more than a theoretical impact on the course of the Supreme Court’s jurisprudence late in his career. In 1989, Marshall had a key vote in the County of Allegheny v. American Civil Liberties Union decision. Marshall voted alongside Blackmun, Brennan, Stevens and O’Connor to hold that a creche inside a courthouse was an endorsement of Christianity in violation of the establishment clause. In 1987, Marshall was the deciding vote for the 5-4 majority in United States v. Paradise, which upheld against an equal protection clause challenge a state scheme that required the promotion of one black employee for every white employee. Such decisions would most likely have gone in the other direction without Marshall’s vote.
The liberal end of the court was clearly weaker after Brennan’s departure, although Justice David Souter, who joined in 1990 to fill Brennan’s seat, later turned out to be a consistent liberal vote. Still, overall Marshall was clearly in the minority in most of these close decisions toward the end of his tenure on the court. The important counterpoint is that if Thomas had sat in Marshall’s seat in these three terms, many if not most of the 5-4 decisions in which Marshall was in the majority would have shifted in the opposite direction.
Some of this becomes evident when we look at comparative statistics for Thomas in 5-4 decisions.
More:
https://www.scotusblog.com/2019/01/empirical-scotus-if-ginsburg-leaves-it-could-be-the-liberals-biggest-loss-yet-a-look-back-at-previous-justices-replaced-with-more-conservative-successors/
