UPDATED: 11 a.m. ET, Sept. 19 —
Editor’s note: This article was written prior to the death of U.S. Supreme Court Justice Ruth Bader Ginsburg. She died Friday from metastatic pancreas cancer at the age of 87. Her death has prompted a political battle to rush to confirm an as-yet-unannounced nominee to fill her spot on the court before Election Day. Ginsburg was regarded as among the most liberal Supreme Court judges of all time while Donald Trump — who has already appointed two conservative justices to the Supreme Court — is among the most far-right presidents ever.
Original story from June 18, 2020:
Nominating justices for the Supreme Court is one of the most important duties for a sitting president. It’s easy for us to forget how much power the court holds. Here’s a reminder: Since the Supreme Court was formed in 1789, it has significantly altered American lives, particularly Black lives, with its decisions on important topics such as segregation and voting rights.
The winner of the 2020 presidential election will be able to tip the scales in the Supreme Court.
Donald Trump has already placed two Supreme Court justices on the bench (Neil M. Gorsuch and Brett M. Kavanaugh) since he was inaugurated as the 45th president of the United States in January of 2017. They are both conservative justices. The current nine-member roster of Supreme Court justices, their perceived political leanings, and the president who nominated them is as follows:
Stephen G. Breyer – Liberal (nominated by Bill Clinton)
Samuel A. Alito, Jr. – Conservative (nominated by George W. Bush)
Neil M. Gorsuch – Conservative (nominated by Donald Trump)
Brett M. Kavanaugh – Conservative (nominated by Donald Trump)
Though strategic moves such as mobilizing the “Black agenda” and “holding the Black vote” are popular discussions, the consequence of the latter could have dire results.
Why should we care about who’s next?
We’re already taking big losses. On March 23, 2020, the Supreme Court voted unanimously in favor of Comcast in a racial discrimination case involving entertainment media mogul Byron Allen (a Black man) alleging that racism played a factor in the cable giant’s decision to not carry Allen’s channels. The Court ruled that Allen would have to meet a strict “but for” burden of proof that race was the sole reason Allen’s channels were not carried, thereby reversing a lower court’s decision. Allen attempted to argue that race merely being a factor should be enough to show discrimination. The Court disagreed in its unanimous vote, but in a footnote, Justice Ruth Bader Ginsburg wrote that “a strict but-for causation standard is ill-suited to discrimination cases and inconsistent with tort principles.” Though she voted the same as the other judges and in alignment with previous Supreme Court rulings, Justice Ginsburg still took the time to acknowledge the faulty framework of such cases. Court observers have warned of what the unanimous decision could mean for the future of civil rights if such a high bar is the standard for proving discrimination.
Supreme Court justices serve life-long terms and their decisions can have impacts for decades, sometimes centuries.
Justice Ginsburg is known as a tough, extremely intelligent, and liberal-leaning judge, but the 87-year-old is well within retirement age and she has had significant health scares over the past few years. It is very likely that Justice Ginsburg will leave the bench during the next presidential term. Justice Breyer, another liberal, is 81 years old and might also exit the high court sooner than later. Some speculate that one or both would announce their retirement if a Democratic president is elected, feeling confident that a liberal-leaning justice would replace them.
The winner of the 2020 presidential election will be able to tip the scales in the Supreme Court, which currently has four conservatives, four liberals and a chief justice who is a moderate conservative. That makes the 2020 election even more important.
Supreme Court justices serve life-long terms and their decisions can have impacts for decades, sometimes centuries. With the COVID-19 pandemic altering everyday life all over the globe, there will almost surely be upcoming cases related to gun rights, voting rights ( Trump has already launched threats at Michigan), citizens’ rights as pertaining to public health mandates, and perhaps once again the ever-brewing battle over abortion.
Presumptive Democratic presidential nominee Joe Biden has pledged to put a Black woman on the Supreme Court, which would be a historic first. As history has shown, Black does not equal liberal. Only two Black people have served on the Supreme Court—Thurgood Marshall, who spent his life crusading for civil rights and Clarence Thomas, who has a long track record of conservative opinions.
The assumption is that a Democratic president would nominate a more progressive justice and if Trump were to win re-election, he would fill any vacancies with conservatives. The Supreme Court has handed down numerous decisions on issues that directly impact Black people, including segregation, voting rights, and civil rights. Black Americans have a vested interest in contributing to a fair and balanced Supreme Court that will help the United States become an equitable and just place to live for everyone so that it can truly be great… for the first time.
Demetria Irwin is a freelance journalist, urban planning enthusiast and advocate for #GirlsWriteNow.