Ruth Bader Ginsburg: The Changing Supreme Court

When Ruth Bader Ginsburg died on September 18, 2020, much of the country reacted with deep emotion — a justice who had greatly impacted the country had passed. Writing in the New Yorker, Jill Lepore said, “Ginsburg bore witness to, argued for, and helped to constitutionalize the most hard-fought and least-appreciated revolution in modern American history: the emancipation of women. Aside from Thurgood Marshall, no single American has so wholly advanced the cause of equality under the law.” While Justice Ginsburg’s history has yet to be written, it is all but certain that her tenure on the bench will be recognized as one of the most impactful of all time.

To get more insight into Ruth Bader Ginsburg’s career and impact, and what the move toward replacing her looks like, GLG sat down briefly with Neil Siegel, currently David W. Ichel Professor of Law and Professor of Political Science at Duke Law School. Professor Siegel clerked for Justice Ginsburg in the October 2003 term.

Professor Siegel served as special counsel to U.S. Senator Christopher Coons during the U.S. Supreme Court confirmation hearings of Brett Kavanaugh and Neil M. Gorsuch. He also served as special counsel to U.S. Senator Joseph R. Biden during the U.S. Supreme Court confirmation hearings of John G. Roberts and Samuel A. Alito.

Ruth Bader Ginsburg rose to prominence for her work as director of the Women’s Rights Project of the American Civil Liberties Union. Most recently, as a member of the United States Supreme Court, she was known for her powerful and pointed dissenting opinions (and, often, her “dissenting collars” that she’d wear with her judicial robe on days when she would be announcing a dissent). What is your take on her legacy?

I expect Justice Ginsburg to be remembered as a great justice, the Thurgood Marshall of women’s rights and a fierce defender of the rights of traditionally excluded groups more generally. She viewed the Constitution as protecting the “equal citizenship stature” of all Americans, and she advanced her vision of equality and liberty both as a lawyer and as a jurist. As the court became more and more conservative, she stood taller and dissented more loudly. She will also be remembered for her collegiality and her expertise on matters of procedure.

Does the nonvote on Merrick Garland in 2016 cast a shadow over the nomination and confirmation process? Could public perceptions of the Supreme Court shift if President Trump’s nominee is confirmed on a party-line vote?

The refusal of Senate Republicans to consider President Barack Obama’s nomination of Judge Merrick Garland caused outrage among Democrats and liberals that continues to this day. The nomination and confirmation process has become even more partisan and poisonous as a result. If Judge Amy Coney Barrett is confirmed notwithstanding the refusal of Senate Republicans to consider Judge Garland with substantially more time to go before the next presidential election, Democrats and independents are likely to view the Senate and the Supreme Court as more partisan institutions, although Republicans are likely to view these institutions more favorably.

Ruth Bader Ginsburg was confirmed to the Supreme Court in an overwhelmingly bipartisan fashion — with 96 senators supporting her nomination. Subsequent confirmations have become more contentious. Is this a trend you expect to see moving forward? 

In a word, yes. I think we have reached the point at which it will no longer be possible to confirm any Supreme Court nominee unless the same political party controls both the White House and the Senate. Democratic Senates confirmed Republican nominees in the past (specifically, Justices Anthony Kennedy and Clarence Thomas), but it is difficult to imagine their doing so again over the next two decades or so given the refusal of a Republican Senate to consider Judge Garland as well as how a Republican White House and Senate handled the Gorsuch, Kavanaugh, and now Barrett confirmations.

The notion of expanding the Supreme Court is not new, but it has reemerged as a topic of conversation among some members of the Democratic Party. Do you foresee this happening should they regain control of the Senate and White House? What consequences may this have looking forward?

Given Republican aggressiveness on Supreme Court nominations, including the refusal of Republican senators to be bound by their own stated principle that such nominations should not be considered during election years, I expect the Democrats to become increasingly aggressive themselves should they gain control of the White House and Senate and maintain control of the House of Representatives. Expanding the number of seats on the Supreme Court is one option, but it is not the only option, and much will depend on the political will of the Democratic president and Democratic members of Congress. Democratic voters have not tended to care as much about the federal courts as Republican voters, but that may change in the years ahead. Any new legislation regarding the Supreme Court would presumably require a majority vote in the Senate to end the filibuster as to legislation. The consequences of new legislation would obviously depend on the specifics, but it is not clear that such legislation would make the Senate or the court more politicized in the eyes of the public given what has already happened in the White House and the Senate over the past four years on the subject of Supreme Court nominations. Republicans would denounce such legislation as threatening the independence and legitimacy of the court; most Democrats would likely celebrate it; and the public would eventually render its own verdict.

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About Neil Siegel

Neil S. Siegel is the David W. Ichel Professor of Law and Professor of Political Science at Duke Law School, where he also serves as director of the DC Summer Institute on Law and Policy. Professor Siegel’s research and teaching fall primarily in the areas of U.S. constitutional law, constitutional politics, and constitutional theory. Professor Siegel is a constitutional law generalist. His scholarship addresses a variety of areas of constitutional law and, in doing so, considers ways in which a methodologically pluralist approach can accommodate changes in society and the needs of American governance while remaining disciplined and bound by the rule of law. Professor Siegel served as special counsel to U.S. Senator Christopher Coons during the U.S. Supreme Court confirmation hearing of Brett Kavanaugh, and he advised Senator Coons during the U.S. Supreme Court confirmation hearing of Neil M. Gorsuch. Professor Siegel also served as special counsel to U.S. Senator Joseph R. Biden during the U.S. Supreme Court confirmation hearings of John G. Roberts and Samuel A. Alito. During the October 2003 term, he clerked for Associate Justice Ruth Bader Ginsburg at the U.S. Supreme Court.