RBG: How Do We Go From Here?

By Isabella Murdy

Associate Justice of the Supreme Court of the United States, Ruth Bader Ginsburg, died on September 18, 2020, at the age of 87. 

Her life’s work was dedicated towards dismantling gender inequality, but she was also involved in rulings on key cases ranging from equal pay, affirmative action in universities, and disability rights. After gaining popularity for her dissenting opinions on the Supreme Court, younger generations endearingly coined Justice Ginsburg as the “Notorious RBG.” In life, and in death, Ruth Bader Ginsburg has sent shockwaves throughout America. 

What does RBG’s Death Mean to us as Cornell Students? 

Ginsburg notoriously stormed the courts to protect rights for all, regardless of gender. To that end, it’s serendipitous that the individual who had long pioneered for equal rights in the law attended Cornell University, the first in the Ivy League to allow women to attend their institution. This was where, on a blind date in Ithaca, she met Martin Ginsburg ’53. Martin Ginsburg went on to become a prominent lawyer himself but, he’s most well known for his progressive role as RBG’s husband and loving life partner. As we pursue our individual academic (and possibly romantic) interests, there is a certain reverence for the congruent steps that were taken by the legend before us. Many have graduated from Cornell and felt a connection to the late justice, who graduated in 1954. However, for the graduating class of 2024, the weight of her passing is uniquely politically relevant. Many of the incoming Cornellians have just turned 18 and, for some students, it will be their first year voting. 

What does RBG’s Death Mean for the Future of the Supreme Court?

With a seat on the highest court in the United States vacating barely a month out from the Presidential election, it’s impossible to ignore the political relevance. The Supreme Court Justices have significant power in interpreting laws. Prior to the passing of Justice Ginsburg, the Supreme Court conservative to liberal split was 5-4. Since there are only 9 justices on the bench, the nominee to fill this vacancy could cement a change in ideology. RBG leaned left, therefore if a conservative justice is to take a seat on the current bench, the split would be 6-3. While this ideological spectrum is most certainly not a perfect predictor of case outcomes, with a very solid conservative majority on the bench, the political tone of Supreme Court rulings could dramatically shift for years to come. 

The Process of Filling the Seat

Following the death of Justice Ginsburg, President Trump announced on September 26, 2020, his nomination for Notre Dame Law School alum and professor, Amy Coney Barrett.

What’s next? A smaller group within the Senate will vote to confirm the nomination. Senate Judiciary Committee Chairman Lindsey Graham has announced that these hearings to consider Judge Barrett will begin on October 12, 2020. 

Under Article II of the U.S. Constitution, POTUS has the constitutional right to nominate Supreme Court justices. However, including the Senate’s approval for this nomination allows an entirely separate branch of the federal government to have a voice in the process of deciding who makes up the Supreme Court. Think “checks and balances.” 

Why is this so Controversial? 

It’s 2020 and voting for the presidential election is already underway. 

Judge Barrett’s hearings may take a few days but, if the Judiciary Committee votes to confirm her nomination, the process will move forward where the full Senate will then vote on this matter. Senate Majority Leader Mitch McConnell has made it clear he plans to quickly move the Senate into an “executive session.” This distinction simply means that the Senate session will concern matters introduced by the President, in this case a Supreme Court nomination. Under the current legislative standing rules, a motion to move into executive session cannot be filibustered. 

For Democrats that want the nomination blocked, there was hope in the fact that voting to proceed on the subject matter during an execution session can be filibustered. However, in 2017, McConnell eliminated the filibuster for Supreme Court nominees through a procedure known as the “nuclear option.” It’s a point of order which helps reduce the number of votes required to close debate and could very well be used to hurry along the confirmation process. 

Therefore, the last few steps to confirm Judge Amy Coney Barrett, as the fourth woman in history to sit on the Supreme Court, requires 50 Senate votes and a tiebreaker vote casted by the Vice President. With Republicans having the Senate majority with 53 members, compared to 45 Democrats, it is likely Barrett will be voted through.

So, Can the Senate Fill the Seat before the Election?

Legally? Yes. Realistically? The only possible obstacle is time.

If Joe Biden wins the election, and Barrett’s nomination is not yet confirmed by the time of his inauguration in January, it is then his Constitutional right to retract the nomination and kickstart this entire process all over again.