In the days preceding her death, Justice Ruth Bader Ginsburg confided to her loved ones her “most fervent” wish: not to be replaced before the Nov. 3 election. But Donald Trump did not wait 24 hours after her passing to announce that he would choose her successor as soon as this week.
Two out of 53 Republican senators have said they would refuse to approve this pick before the presidential election. Two more are needed to push the confirmation beyond this election cycle. This is not impossible. But it is far from won.
Meanwhile, the death of the progressive United States Supreme Court justice is shuffling the electoral deck by propelling the abortion debate to the heart of the presidential campaign, among other things. This issue, which has the particular distinction of galvanizing voters as much on the left as on the right, had been eclipsed by racial tensions and the COVID-19 pandemic. The possibility of filling Ginsburg’s seat with an anti-abortion activist like Amy Coney Barrett, a favorite of Trump, places it back at the center of debate.
On several occasions, the Supreme Court has curbed the enthusiasm of the anti-abortion movement. Four years ago, it was called upon to rule on a Texas law requiring abortion clinics to be affiliated with a hospital within 30 miles, an initiative said to protect women, while actually serving, in a roundabout way, to restrict abortion access. In her concurring opinion, Ginsburg offered a stinging critique of the regulation.
In February 2019, a similar case in Louisiana came before the court. Despite two new conservative justices on the bench, it rejected that law in a 5-to-4 ruling. Should Trump nominate Barrett to replace Justice Ginsburg, the next time such a law makes it on the docket, she will likely lean the other way.
These examples are not anecdotal. They are typical of the way the anti-abortion movement is strengthening its position. In a decade, it has succeeded in passing some 400 restrictions, adopted in various states, on the right to terminate a pregnancy. Its ultimate goal is to overturn Roe v. Wade, the ruling that established the right of women to choose what to do with their pregnancies.
Trump is courting this lobby. He has gone so far as to participate in an anti-abortion rally, something no other American president has ever done. Ginsburg’s death offers him the chance to score further points with these voters. Politically, the repercussions of this “September surprise” are impossible to estimate. It will mobilize anti-abortion activists, but progressive forces will also be at work. One would be hard-pressed to predict who will come out on top in this fight.
In the meantime, the death of the high court justice means that Senate Republicans are faced with a moral dilemma. Will they respect her “will” and suspend the confirmation of the next justice? Or will they succumb to a political calculus and the temptation of what one Washington Post columnist described as a judicial “power grab?”
Above all, Ginsburg’s death also presents the United States with a cruel irony: By dying, this justice, who has repeatedly defended the rights of women, and not just on the question of abortion, has opened the door to a major step backward for their freedoms.