Five Ways Justice Ginsburg's Death Will Affect the Supreme Court Before Her Successor Is Confirmed

The short-handed Court will have to deal with difficult cases in a difficult time.

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A few moments ago, I posted my statement about Justice Ginsburg's death. Here, I would like to discuss how her passing will affect the Supreme Court before her successor is confirmed.

First, there are now only eight Justices. As a result, any emergency applications will find the Court short-handed. The Roberts Five will still be able to stay a liberal lower court ruling. But the Ginsburg Four + Roberts will no longer able to stay a conservative lower court ruling. Roberts would have to persuade another Justice, probably Kavanaugh, to cross over. A four-four tie will leave the lower-court ruling in place.

Second, because a gridlocked Supreme Court cannot issue injunctive relief, the lower courts very well may have the final say on matters. In the election law context, most of the swing states are in circuits that President Trump "flipped." For example Ohio and Michigan are in the Sixth Circuit. Pennsylvania is in the Third Circuit. Wisconsin is in the Seventh Circuit. Iowa and Minnesota are in the Eighth Circuit, which was already flipped. Georgia and Florida are in the Eleventh Circuit. There are a handful of potential swing states in the Ninth Circuit (Arizona, and maybe Nevada). Trump has not flipped the Ninth Circuit, but he has made an impact on panel composition. And with the unique en banc process, the panel decision may stay.

Third, a number of the judges on the Circuit Courts are on the short list. No doubt we will see motions for them to recuse from any election law case. The argument would go that a circuit judge may be biased to vote for Trump so he or she will be elevated. Though, the fact that Trump will make the nomination ASAP will probably moot those claims.

Fourth, the state courts are not "flipped." Can you imagine if the U.S. Supreme Court splits 4-4, and allows a state Supreme Court resolve the election? That Court could be a conservative Court (Florida or Wisconsin) or liberal court (Pennsylvania), or a combination of several courts. That would be a classic John Roberts move. Decide nothing.

Fifth, the Supreme Court term begins on the first Monday in October. The Court will be short-handed at least till January, and maybe longer. Key cases, such as the ACA appeal, will now be reduced to five votes. Roberts will need at least one of the conservatives to break ranks to form a majority.

NEXT: My statement for Politico Magazine on Justice Ginsburg's Death

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  1. My Republican friends—none of whom is actually a member of the Trump administration, I hasten to add—are rooting for the confirmation of Amy Barrett by November 3.

    1. Justice Ginsburg has often been compared to Thurgood Marshall as a trailblazer. If her eventual successor is unfit to carry her briefcase, that would be the final parallel between the two.

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  2. You missed the mega-Bush v. Gore scenarios with a 4-4 court….

  3. The ACA repeal case is interesting now because if Roberts votes to overturn the lower court, and the conservatives affirm, well then you go back to the lower court ruling, which voted to overturn the law.

    But what does that mean? The 5th circuit enjoined Obamacare, but the opinion took pains to say that it is not actually doing anything for now because this will be reviewed. The court deadlocks, then is the 5th circut still saying do nothing? And would it even apply to other circuts?

  4. The seat will be filled before the election.

  5. If anything this makes the case for the seat to be filled because there is the very real chance the Supreme Court is going to have to decide significant constitutional decisions that will determine not only the election but the legitimacy of the election.

    1. In 2016 Ted Cruz said not in so many words that that’s bullshit. He said an eight justice court functions just fine.

      1. I honestly don’t care what Ted Cruz has to say about much of anything, though. McConnell should hold confirmation hearings at once and in earnest because it is the right thing to do. It’s what he should have done with Merrick Garland. Two wrongs don’t make a right. McConnell should have been punished back in 2016 for dereliction of duty. It’s too late to seek justice now. But at least things can be set back to normal. Democrats can then punish him when they retake the Senate, if the coward doesn’t resign first.

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  7. They will be short handed for approximately three days. A right wing hack will be nominated, approved and sworn in by Wednesday. Probably before lunch.

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