WASHINGTON — Ruth Bader Ginsburg’s death, ending one of the most remarkable careers in American legal history, leaves the Supreme Court under a cloud of uncertainty as it prepares to begin its new term in two weeks, with questions about who will put her successor on the court, when will that happen and how will it affect some of the major cases on the docket — including the fate of Obamacare.
Ginsburg’s death on Friday leaves eight justices on the court, which raises the prospect of 4-4 tie votes. After Justice Antonin Scalia died in 2016, the remaining justices ended up deferring contentious issues or deciding cases without sweeping rulings. But his death left an even number of generally liberal and conservative votes.
The court now stands 5-3 ideologically, with Chief Justice John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh among the conservatives, and Stephen Breyer, Sonia Sotomayor, and Elena Kagan constituting the liberal wing.
Because it takes five votes to prevail, the court might plunge ahead in deciding some of the term’s major cases.
The week after the November general election, the court will consider the future of Obamacare, which a coalition of red states are hoping to strike it down — including the provision requiring insurance companies to cover pre-existing conditions.
If Roberts, who has voted in the past to uphold the law, sided with the liberals this time, that 4-4 tie would leave the lower court ruling in place, which declared the law invalid.
Another case, a legal dispute between a Catholic charity and the city of Philadelphia, asks the justices to decide whether there’s a religious freedom exception to non-discrimination laws. The court considered but eventually ducked that question three years ago in the case of a Colorado baker who refused to provide cakes for same-sex weddings, saying it would violate his religious beliefs and freedom of expression.
Tom Goldstein, a Washington, D.C., lawyer who argues frequently before the court, said he assumes the court will push ahead to decide those controversies.
“I don’t think they’ll keep the landing gear down. There may be some ties this time, but not on the big social issue cases,” he said.
One of Ginsburg’s closest friends, Nina Totenberg of National Public Radio, reported that a few days before her death, the justice gave this statement to her granddaughter: “My fervent wish is that I will not be replaced until a new president is installed.”
Because the winner of the presidential election won’t take the oath of office until Jan. 20, her dying wish seems unlikely to be fulfilled. The Senate’s majority leader, Mitch McConnell of Kentucky, said Friday that President Donald Trump’s nominee to fill the vacancy, whoever that may be, will get a vote before the full Senate. But it’s possible the Senate won’t know who the next president will be when it votes.
During the past 45 years, the average time from a president’s announcement of a Supreme Court nominee until the Senate votes to confirm is 70 days. Assuming Trump moves quickly, as he suggested Saturday he intends to, that would put a confirmation vote in late November or early December.
If the election is a close one, and some state results are disputed in court, those legal battles might still be raging. In 2000, the country didn’t know whether the next president would be George W. Bush or Al Gore until the Supreme Court decided the Florida recount case in mid-December.
The process has moved more quickly the in the past. John Paul Stevens took his seat on the Supreme Court just 19 days after President Ford nominated him in 1975 to succeed William O. Douglas. Sandra Day O’Connor’s confirmation followed 33 days after she was nominated by President Reagan.
But those days of a more congenial Senate, are long gone. For the last seven Supreme Court nominees, it has taken an average of 72 days, and the Senate votes have grown closer as partisan rancor has grown.
McConnell may feel compelled to move quickly, however, especially if Republicans lose a seat in a special election to fill the vacancy left by the death of Sen. John McCain of Arizona. Trump said Saturday at the Senate has an obligation to act on a nomination “without delay.”