Justice Ruth Bader Ginsburg.
Photo: David Hume Kennerly/Getty Images
Supreme Court Justice Ruth Bader Ginsburg has died of “complications from metastatic pancreas cancer,” the Supreme Court announced on Friday night. The longtime justice, liberal stalwart, and feminist icon was 87 years old. She reportedly died surrounded by her family at her home in Washington, D.C., and will be interred at Arlington National Cemetery.
Below are updates, in reverse chronological order, on the aftermath and political ramifications of Ginsburg’s death as they play out.
The Cut’s Rebecca Traister on how anyone blaming RBG for not stepping down while Obama was president is “missing the point”:
I understand why people will be furious at Ruth Bader Ginsburg and why they will say so loudly, in raised tones that convey their own assurance that they would have made the right choice, had they been her. Though those who are mad will not want to hear it, their reaction is made of precisely the same stuff that led people to lionize her as an outsize savior: because in the absence of structural security it is far easier to home in on individuals — as both our heroes and our villains — than it is to reckon with the enormity of what’s wrong and what needs to be righted. …
[O]ne of the reasons her death will be as explosive and consequential as it is sure to be is that so many of our institutions are failing us, and have been purposefully perverted or used to serve regressive purpose: a senate that broke the nation’s rules by refusing to confirm the Supreme Court pick of a sitting Democratic president; an electoral college that served its original purpose of overturning the will of an American majority to deliver the White House to a leader committed to white supremacy; a political system that doesn’t inspire its populace to vote in critical midterm elections; a Republican Party willing to spend decades doing whatever it took to reverse legal and legislative victories that redistributed a little bit of power out of the hands of white patriarchal capitalist-fueled corporations; and a Democratic Party that did not have the will or foresight to fight as fiercely or as cannily on behalf of rights, protections, and dignity as their obstructionist opposition fought against.
President Trump will rush to nominate someone to take RBG’s seat, and expects Republicans to get in line:
FiveThirtyEight’s Perry Bacon Jr. considers the timing of the vacancy, from both a historical and process angle:
Supreme Court vacancies in presidential election years, by how many days before the election they occurred and whether a replacement was confirmed before the election:
And the confirmation will take some set amount of time:
It would be unusually fast to finish the entire confirmation process in less than 46 days, the time left before the Nov. 3 election. (The average confirmation process since the Harry Truman administration has lasted 50 days.) That doesn’t mean there isn’t enough time for Trump to confirm a new justice, but it would be on the fast side.
Nevertheless, it’s possible that sometime in October, a judge has been nominated and perhaps confirmation hearings are taking place, right on the eve of the election. This creates the possibility that Trump loses the election and perhaps Republicans lose control of the Senate, but the lame duck president and some senators who have lost reelection put a justice on the Supreme Court — a move that will enrage Democrats. Alternatively, Trump could win the election and see a new justice appointed before he even begins his second term.
It’s a near certainty that arguably the biggest news story of the campaign would have come up during this conversation:
At HuffPost, Jonathan Cohn examines the possible ramifications for the Affordable Care Act now that Ginsburg won’t be there to defend it at the Supreme Court — highlighting the lawsuit against the act due to be heard by the Court on November 10:
Figuring out how Ginsburg’s death will affect its prospects is not easy, and legal experts that HuffPost contacted Friday night cautioned that it may take a day or two to think through the scenarios.
One is that the Affordable Care Act survives without much fuss, the program goes on as it is, and nobody loses coverage. This lawsuit is so weak that even conservative legal experts who supported previous challenges think it has no basis. Several or all conservative justices might join liberals in rejecting it. But the lawsuit has already prevailed in two lower court cases, both times because Republican-appointed judges agreed with its rationale. And without Ginsburg, who was sure to uphold the law, the odds of the Affordable Care Act surviving go down.
That is true even if Republicans don’t manage to fill her seat before the hearing. One possibility now in play is a four-four tie. If that happens, two legal experts told HuffPost, then the Affordable Care Act could become something like a zombie statute ― one that is unconstitutional but that continues to operate while litigation continues before lower court judges. “This should make people think again before (once again) saying that an absolutely ludicrous argument had no chance of destroying the ACA in SCOTUS,” Leah Litman, a University of Michigan law professor and former Supreme Court clerk, told HuffPost.
Intelligencer’s Jonathan Chait chatted with our own Ben Hart last night about the political aftermath of RBG’s death and explained why he believes it’s likely McConnell will be successful in his efforts to confirm whoever Trump nominates to replace Ginsburg:
I think the odds clearly favor McConnell filling this seat. The reasons are obvious: they control 53 seats, they only need 50, and previous statements of principle will obviously not bind them. However, there are several factors pushing in the other direction.
It’s not in the interest of Republicans facing election in 2020 to resolve this. Vulnerable Republicans are much better off having the court seat hinge on the outcome of the election. Trump himself might also be better off this way, though I doubt he will be cunning enough to see this. (Social conservatives will push him to fill the seat and he will go along, picking the course of maximal partisan aggression, as he always does.) Roberts himself also stands to lose power. He would no longer be the decisive vote. His only power would be to say something against filling the seat, and I doubt he says anything like that, but it is conceivable.
Slate’s Dahlia Lithwick pays tribute to RBG by channeling her:
[W]hile the loss of Justice Ginsburg is gutting and lacerating and brutally sad, her entire life and work has been in service to the idea that the rest of us are in fact capable of being allies and helpers and boosters and supporters, and also that the generations that are disconsolate tonight, for the lack of a hero, are themselves capable of stepping into her teeny-tiny, mighty, 3-inch-heeled, terrifyingly fabulous shoes and taking up the work she didn’t begin but merely inherited from those who came before.
America has lost a warrior, and it’s OK to be crushed. I am flattened. And I will mourn, because she deserves to be mourned. But we are also facing an almighty battle that will rage in the coming weeks, with attempts to fill her seat in an unseemly and grotesque manner. It will be hard and painful, but if you find yourself feeling hopeless and powerless, then you are emphatically doing it wrong. Because if anyone had a right to say “nah,” it was the woman who couldn’t get a job or a clerkship after graduating at the top of her class. But she pushed on, and then she pushed forward. She stepped into the fight of the phenomenal women who paved the path before, and now, well, it’s time to step into her fight and get it finished. I think the Notorious RBG would have peered owlishly out at all of us tonight and asked what the heck we are waiting for. And I think we can probably honor her best by getting to it.
President Obama offered his thoughts on RBG’s legacy in a late-night post on Medium:
Justice Ginsburg inspired the generations who followed her, from the tiniest trick-or-treaters to law students burning the midnight oil to the most powerful leaders in the land. Michelle and I admired her greatly, we’re profoundly thankful for the legacy she left this country, and we offer our gratitude and our condolences to her children and grandchildren tonight.
He also didn’t mince words when it came to the process to fill her seat on the Court:
Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in.
A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment. The rule of law, the legitimacy of our courts, the fundamental workings of our democracy all depend on that basic principle. As votes are already being cast in this election, Republican Senators are now called to apply that standard. The questions before the Court now and in the coming years — with decisions that will determine whether or not our economy is fair, our society is just, women are treated equally, our planet survives, and our democracy endures — are too consequential to future generations for courts to be filled through anything less than an unimpeachable process.
Yes, of course Ginsburg had something to say before she died about the process to replace her, per Politico:
Ginsburg foresaw the political battle her death would produce. She reportedly weighed in strongly on behalf of holding her seat open and a Democratic victory in November.
“My most fervent wish is that I will not be replaced until a new president is installed,” Ginsburg said before her death, according to a statement released by one of her granddaughters, Clara Spera.
Here’s what Senate Majority Leader Mitch McConnell, who has already announced that Trump’s nominee will get a vote on the floor of the Senate, said in a message to his colleagues on Friday night:
Over the coming days, we are all going to come under tremendous pressure from the press to announce how we will handle the coming nomination … For those of you who are unsure how to answer, or for those inclined to oppose giving a nominee a vote, I urge you all to keep your powder dry. This is not the time to prematurely lock yourselves into a position you may later regret.”
Some of the responses the Washington Post captured in its report on the political aftermath:
“The polarization in the country was already a 12 on a one-to-10 scale. It was already off the charts. This is going to push it up to 15,” said Neil Newhouse, a longtime Republican pollster. “This energizes both liberals and conservatives, it ratchets up the intensity, and it puts a focus on what’s at stake in this election.”
David Axelrod, who served as the top political strategist to Obama, concurred. “This is another log in an already roaring fire,” Axelrod said. “This is going to further intensify feelings on both sides. For Trump, there has been some softening among evangelicals in some of the polling. He may see this as a way to fire them up again” …
One former White House official, reflecting an emerging consensus in Trump world, said, “This is certainly a catalyzing event that needed to happen in this moment.” This official, who spoke on the condition of anonymity to candidly discuss the politics of the moment so soon after Ginsburg’s passing, added, “This is an animating issue for the entire right. It unifies everybody from Mitt Romney to the most hardcore MAGA Trump person out there at a time when Trump needed that. It will give something to fight for over the next 45 days or so that could potentially remind people, ‘Okay, this is why I voted for Trump, and this is why even if he makes me crazy sometimes I’ve got to stick with him.’”
Intelligencer’s Ed Kilgore thinks through the potential political consequences of Trump pushing hard and fast to replace Ginsburg:
Will [Trump] gamble his presidential prospects on his base’s determination to flip the Supreme Court right away? It’s unclear. RBG’s death could help make Democrats care about the Supreme Court, too. But there is no question Trump and congressional Republicans will be under intense pressure to confirm lifetime appointments of jurists who want to reverse federal judicial president favoring rights for women and other progressive constitutional tenets. And as it happens, Trump has very recently released a new and more radically conservative list of Supreme Court prospects.
It’s obvious that Republicans will view RBG’s sad demise as a windfall. But the odds remain high that her replacement on the Court will be made by the next president and the next Congress. And if Trump tries to push a replacement through, it could become a rare and powerful litmus test for voters.
It’s a matter of when, not if, President Trump will nominate someone to replace Ginsburg, and here is Intelligencer’s Sarah Jones’s look at five of the people the president has had on his shortlist over the years, including the most likely candidate, federal appeals judge Amy Coney Barrett:
Barrett may be Trump’s likeliest pick to replace Ginsburg. A federal appeals court judge, Barrett has appeared on Trump’s short list in the past. She is a conservative Catholic who has said that she believes that life begins at conception and has suggested that Roe v. Wade was wrongly decided. Barrett, the Washington Post reported, “said the framework of Roe had ‘essentially permitted abortion on demand’ and ‘recognizes no state interest in the life of a fetus,’ according to news accounts including an article in Notre Dame Magazine in 2013.” Though she’s Catholic, her nomination would appeal to Trump’s Evangelical base: giving her Ginsburg’s seat would be the ultimate thumb-in-the-eye to the women’s movement championed by the late justice.
Jones also considers possible picks Paul Clement, Tom Cotton, Noel Francisco, and Sarah Pitlyk — read about those potential nominees here.
Intelligencer’s Ben Jacobs explores the very real possibility:
With Vice-President Pence casting a tiebreaking vote in the Senate, McConnell can afford to lose three members of his caucus. Already Republicans Susan Collins of Maine and Lisa Murkowski of Alaska have indicated that they would not vote to confirm a nominee before the election, and there also is Mitt Romney of Utah, the lone Republican to vote to convict Trump during impeachment, who has yet to weigh in. (The calculus does change in the lame duck Senate if Arizona Republican Martha McSally loses in November — she was appointed to her seat, and the race is a special election. If he wins, Democrat Mark Kelly would promptly replace her and not wait until January to take his seat.)
Assuming McConnell holds the remainder of his caucus together to jam through a nominee under those circumstances, it would cause a constitutional crisis. The appointment of a Supreme Court justice under these circumstances would transform ending the filibuster and expanding the size of the Supreme Court from a niche issue on the left to a fundamental litmus test.
The ramifications of Ginsburg’s death in the middle of the 2020 campaign are obviously enormous. The vacancy is sure to become a critical issue for the remainder of the campaign, not just in the presidential race but for all the Senate candidates in tight races as well. Furthermore, the empty seat creates an even larger ideological imbalance on the Supreme Court — which could become a major issue should the presidential-election result be contested in a way that necessitates the Court’s intervention, as well as in any other cases that head the Court’s way between now and whenever the vacancy is filled.
Here is how Democratic presidential candidate Joe Biden responded to Ginsburg’s death:
There are already reports that President Trump will be naming a replacement soon:
Trump himself claimed he only found out about Ginsburg’s death from reporters after his Friday-night campaign rally, remarking that he was “sad” to hear the news and that she had led “an amazing life”:
The president also referenced the Court during his rally:
Senate Majority Leader Mitch McConnell has already seemed to abandon the cynical stance he took on President Obama’s Supreme Court nominee, Merrick Garland, in 2016. He announced on Friday that Trump’s nominee will receive a full vote in the Senate:
However, it’s not yet clear when that vote will occur — so it could be that McConnell is once again playing games:
Senate Minority Leader Chuck Schumer, meanwhile, has already made it clear that the vacancy should not be filled until next year:
The Atlantic’s Edward-Isaac Dovere offered some context on the Senate complexities in a Twitter thread:
The question of whether President Trump will get to replace Ruth Bader Ginsburg on the Supreme Court before the election essentially comes down to four GOP votes in the Senate, deciding whether they want to give that to him, and to break the principle McConnell invented in 2016 [for Merrick Garland].
Among the senators who will be under intense pressure on this question will be Susan Collins, up for election herself and has struggled with how much to attach herself to Trump, and who said after impeachment she thought Trump had learned his lesson about changing behavior. Murkowski has said she is against an appointment before the inauguration. But that was theoretical. Now it’s real. She’s not up for election this year. Neither is Romney … But it’s not just senators with races this year. There are more GOP senators than say so publicly who have major problems with Trump and worry about what he means for the future of the party and the country. So: do they back him here when he needs it and could help his victory?
If there are Judiciary Committee hearings on a nominee (if McConnell doesn’t take Trump’s inevitable nominee right to the floor), it will also give a major platform for committee member Kamala Harris right at the height of the campaign.
A near-complete list of the key GOP senators now under pressure:
Senator Lisa Murkowski reportedly said in an interview before the news of Ginsburg’s death broke that she will not vote to fill a SCOTUS vacancy until after Election Day, per Alaska Public Media:
Shortly before the announcement that Supreme Court Justice Ruth Bader Ginsburg had died Friday, Sen. Lisa Murkowski said in an interview that if she was presented with a vacancy on the court, she would not vote to confirm a nominee before the election …
“I would not vote to confirm a Supreme Court nominee. We are 50 some days away from an election,” she said. Murkowski said her reasoning is based on the same reasoning that held up the confirmation of former President Barack Obama’s final nominee to the Supreme Court.
Senator Mitt Romney, another key Republican moderate, released a statement on Friday night in which he simply celebrated Ginsburg’s legacy:
With regards to Senator Susan Collins:
She’s already in a tight spot on SCOTUS picks:
Senator Lindsey Graham, a staunch Trump ally, had said in 2018 that the Senate should wait for the election to fill the vacancy:
But he’s said a lot of things, including this in May:
But long-time Intelligencer contributor David Freelander adds that the vacancy may also be a glass-more-than-half-full for many GOP candidates looking to get out the base:
The Atlantic’s Edward-Isaac Dovere also noted the electoral ramifications, should November’s election result be contested:
[If the election] gets kicked to the Supreme Court somehow, there would be only eight justices, no tiebreaker if needed — though this leaves a 5-3 conservative majority. Could potentially put Roberts, the institutionalist, under intense pressure.
Others have been commenting on the same issue:
President Bill Clinton, who nominated Ginsburg to the Court in 1993, called her “one of the most extraordinary Justices ever to serve on the Supreme Court” as well as “a magnificent person” with “boundless courage in the face of her own adversity”:
Senator Elizabeth Warren’s response:
This is what the Court said in its statement regarding Ginsburg’s death on Friday night:
Associate Justice Ruth Bader Ginsburg died this evening surrounded by her family at her home in Washington, D.C., due to complications of metastatic pancreas cancer. She was 87 years old. Justice Ginsburg was appointed to the Supreme Court by President Clinton in 1993. She was the second woman appointed to the Court and served more than 27 years. She is survived by her two children: Jane Carol Ginsburg (George Spera) and James Steven Ginsburg (Patrice Michaels), four grandchildren: Paul Spera (Francesca Toich), Clara Spera (Rory Boyd), Miranda Ginsburg, Abigail Ginsburg, two step-grandchildren: Harjinder Bedi, Satinder Bedi, and one great- grandchild: Lucrezia Spera. Her husband, Martin David Ginsburg, died in 2010.
Chief Justice John G. Roberts, Jr. said of Justice Ginsburg: “Our Nation has lost a jurist of historic stature. We at the Supreme Court have lost a cherished colleague. Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her – a tireless and resolute champion of justice.”
Justice Ginsburg was born in Brooklyn, New York, March 15, 1933. She married Martin D. Ginsburg in 1954. She received her B.A. from Cornell University, attended Harvard Law School, and received her LL.B. from Columbia Law School. She served as a law clerk to the Honorable Edmund L. Palmieri, Judge of the United States District Court for the Southern District of New York, from 1959–1961. From 1961–1963, she was a research associate and then associate director of the Columbia Law School Project on International Procedure. She was a Professor of Law at Rutgers University School of Law from 1963–1972, and Columbia Law School from 1972–1980, and a fellow at the Center for Advanced Study in the Behavioral Sciences in Stanford, California from 1977–1978. In 1971, she was instrumental in launching the Women’s Rights Project of the American Civil Liberties Union, and served as the ACLU’s General Counsel from 1973–1980, and on the National Board of Directors from 1974–1980. She was appointed a Judge of the United States Court of Appeals for the District of Columbia Circuit in 1980. During her more than 40 years as a Judge and a Justice, she was served by 159 law clerks.
While on the Court, the Justice authored My Own Words (2016), a compilation of her speeches and writings.
A private interment service will be held at Arlington National Cemetery.
This is a developing story, and this post will be updated throughout with additional reporting, analysis, and commentary.