Justice Ruth Bader Ginsburg, the leader of the Supreme Court’s liberal wing and a trailblazer for women’s rights in the law, died on Friday at the age of 87. According to NPR, Ginsburg dictated a deathbed statement to her granddaughter earlier this month, one acknowledging what everyone had long known—that her death would send a destabilizing jolt through American politics if it occurred before January 20, 2021. “My most fervent wish is that I will not be replaced until a new president is installed,” she reportedly said.
That wish appears unlikely to be fulfilled. President Donald Trump is now poised to nominate a staunchly conservative jurist to fill the vacancy and Senate Majority Leader Mitch McConnell has already stated he would hold a floor vote on that nominee, abandoning the election-year stance he pretended to take four years ago as Justice Antonin Scalia’s seat was left vacant. But this is not 2016, and the politics of this moment may turn out differently than most observers expect.
The most immediate impact of Ginsburg’s death will be felt on the Supreme Court itself, which is now left with eight members for the immediate future. Her death comes just three weeks before the start of the court’s October term. Until the vacancy is filled, the court will be ideologically split between three liberal justices, Chief Justice John Roberts, and four reliably conservative justices. Roberts played a decisive role as the fifth vote in almost every major Supreme Court case last term, including in a series of notable defeats for right-wing advocates before the court. Now he is no longer the court’s middle vote.
Most cases heard by the high court are not decided along the familiar 5-4 lines, of course. But many of the most consequential ones are. Without Ginsburg, the liberal justices will need two votes from the court’s conservative wing to prevail on any particular case. That may be beyond their powers of persuasion in cases involving abortion, LGBT rights, and the Second Amendment. The court is currently scheduled to hear a case that threatens to strike down the entire Affordable Care Act exactly one week after Election Day.
Her death also complicates a more immediate wave of legal battles: those surrounding the 2020 election. The Trump campaign is waging a high-dollar, high-stakes war in courts across the country over mail-in voting, citing phantasmal fears of voter fraud in an effort to limit access to absentee ballots during a pandemic. Both campaigns also anticipate those battles to continue after Election Day as states try to count what’s expected to be a historic number of mail-in ballots. Ginsburg’s absence raises the possibility that the court could reach a 4-4 deadlock in an election-related case if it falls along the usual lines—and that would only be if one of the conservatives breaks ranks with his colleagues in the first place. Only two of the court’s current members, Justices Clarence Thomas and Stephen Breyer, also participated in Bush v. Gore.