DEMOCRATIC CAUSE AND HER ABSENCE
COULD GIVE CONSERVATIVES A 6-3
LOCK FOR DECADES TO COME.
WITH ME NOW, THE COFOUNDER OF
SCOTUSBLOG, AMY HOWE, AND NYU
LAW PROFESSOR MELISSA MURRAY.
SHE PREVIOUSLY SERVED AS LAW
CLERK TO THEN JUDGE SONIA
SOTOMAYOR.
AMY, I WANT TO START WITH YOU.
THE 5-4 SPLIT HAS BEEN THE
STANDARD NOW FOR MANY, MANY
YEARS, WITHOUT JUSTICE GINSBURG
ON THE BENCH, WITHOUT SOMEBODY
REPLACING HER WHO IS
IDEALOGICALLY ALIGNED WITH HER,
WHAT IS AT STAKE?
>> SO YOU SUMMARIZED IT QUITE
WELL.
THE JUSTICES LIKE TO TELL YOU
HOW MANY OF THEIR CASES ARE 9-0
OR 8-1, BUT THE ISSUES THAT
PEOPLE REALLY CARE ABOUT ARE
FREQUENTLY 5-4.
AND THE COURT HAS BEEN MOVING TO
THE RIGHT, BUT TO THE EXTENT
THEY HAVE HAD MORE LIBERAL
RESULTS ON ISSUES LIKE ABORTION
OR AFFIRMATIVE ACTION OR
SAME-SEX MARRIAGE, WHAT’S
HAPPENED HAS BEEN THAT THE
COURT’S FOUR MORE LIBERAL
JUSTICES INCLUDING RUTH BADER
GINSBURG, HAVE BEEN JOINED BY
JUSTICE ANTHONY KENNEDY OR MORE
RECENTLY, CHIEF JUSTICE JOHN
ROBERTS.
AND SO IF JUSTICE RUTH BADER
GINSBURG IS REPLACED BY THE
PRESIDENT WITH A MUCH MORE
CONSERVATIVE JUSTICE, YOU KNOW,
WHETHER OR NOT THE CHIEF JUSTICE
WANTS TO JOIN THE COURT’S MORE
LIBERAL JUSTICES WON’T REALLY SO
MUCH MATTER BECAUSE THERE’S ONLY
THREE OF THEM.
IT WOULD BE A SOLID FIVE-MEMBER
CONSERVATIVE MAJORITY EVEN
BEFORE YOU GET TO THE CHEESE
JUST
CHIEF JUSTICE, JOHN ROBERTS.
>> WHAT CASES ARE COMING DOWN
THE PIKE, MELISSA, THAT COULD BE
DECIDED DIFFERENTLY HAD JUSTICE
GINSBURG NOT PASSED ON FRIDAY?
>> WELL, WE HAVE A HUGE
CHALLENGE TO THE AFFORDABLE CARE
ACT, WHICH WILL BE COMING BEFORE
THE COURT JUST A WEEK AFTER THE
ELECTION.
THAT WAS A CASE WHERE IN 2012,
YOU REALLY NEEDED CHIEF JUSTICE
ROBERTS SIDING WITH THE LIBERALS
AND YOU NEEDED A FULL COMPLEMENT
OF FOUR LIBERALS IN ORDER TO
HAVE THE ACA SURVIVE.
THAT’S IN DOUBT NOW.
THERE ARE ALSO CHALLENGES TO
RELIGIOUS LIBERTIES, FOLLOW-ON
CASE FROM THE CAKE SHOP CASE
THAT WAS HEARD, AND THOSE WILL
HAVE REALLY BROAD IMPLICATIONS,
NOT ONLY FOR LGBTQIA RIGHTS BUT
ALSO FOR REPRODUCTIVE RIGHTS.
THERE ARE A NUMBER OF REALLY BIG
CASES.
THAT’S EVEN BEFORE WE GET TO THE
POSSIBILITY THAT THERE WILL BE
SOME SORT OF EXISTENTIAL
ELECTION CRISIS THAT WILL GO TO
THE SUPREME COURT, WHETHER IT’S
AN EIGHT-MEMBER COURT OR A
NINE-MEMBER COURT WITH A NEW
TRUMP APPOINTED JUSTICE.
>> AMY, ROE V. WADE IS SOMETHING
EVERYONE BRINGS UP WHEN IT COMES
TO THE MAKEUP OF THE COURT.
WHAT CASES ARE DOWN THE LINE
RIGHT NOW THAT COULD COME TO THE
SUPREME COURT THAT MIGHT
POTENTIALLY OVERTURN THAT
DECISION?
>> YEAH, SO LAST TIME THE
SUPREME COURT DID HEAR A CASE
AND THEY STRUCK DOWN A LOUISIANA
LAW THAT REQUIRED DOCTORS WHO
PERFORM ABORTIONS TO HAVE THE
RIGHT TO ADMIT PATIENTS AT
NEARBY HOSPITALS, AND THAT CASE
DID NOT DIRECTLY IMPLICATE ROE
V. WADE, BUT THERE ARE OTHER
LAWS.
REMEMBER, A YEAR AND A HALF AGO,
THERE WERE STATES PASSING
DIFFERENT LAWS INVOLVING SORT OF
EARLY ABORTIONS, CASES INVOLVING
ULTRASOUNDS, THAT COULD COME TO
THE SUPREME COURT AND BE A MUCH
MORE DIRECT CHALLENGE TO ROE V.
WADE THAN THE LOUISIANA CASE
THAT THE COURT HEARD LAST YEAR.
>> MELISSA, IS IT A FOREGONE
CONCLUSION IF DONALD TRUMP IS
ABLE TO PLACE ANOTHER
CONSERVATIVE ON THE COURT, THAT
THE COURT WILL REMAIN HEAVILY
CONSERVATIVE AND THE DECISIONS
WILL ALL BE PREDICTABLE ALONG
CONSERVATIVE IDEOLOGY?
>> WELL, I MEAN, THERE’S ALWAYS
THE POSSIBILITY OF A DAVID
SOUTER, WHO SURPRISES YOU, BUT I
THINK THAT’S INCREASINGLY
UNLIKELY.
THE VETTING PROCESS IS MUCH MORE
INTENSE THAN IT WAS WHEN JUSTICE
SOUTER WAS APPOINTED TO THE
COURT AND IT’S MORE INTENSE
BECAUSE OF HIM.
THEY DON’T WANT ANY SURPRISES.
THE PRESIDENT HAS BEEN CLEAR.
HE WANTS TO APPOINT A PRO-LIFE
JUSTICE.
HE’S BEEN CLEAR HE’S GOING TO
APPOINT A WOMAN JUSTs.
THAT MEANS IF HE’S SUCCESSFUL IN
DOING ALL THIS, THIS WILL BE A
JUST WHO LIKE JUSTICE GINSBURG
IS A WOMAN BUT WITHOUT THE SAME
COMMITMENT TO EQUALITY OR