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Whilst being wary to avoid cliché, 2020 has been a year of earth-shattering significance for the American people. Covid-19 has ravaged through the country; Black Lives Matter protests have criticised the foundations of America’s mythic-history and with the presidential election approaching in November, one had to ask how much more could be crammed into this year? With the passing of the Supreme Court Justice Ruth Bader Ginsburg, America was once again plunged into a state of shock.
The significance of a vacancy on the US Supreme Court cannot be overstated. The Supreme Court is the final interpreter of the US constitution. They can strike down laws they perceive to be unconstitutional, rule executive action unconstitutional, rule state action unconstitutional and change the fabric of American society merely through the power of textual interpretation. With cases like Roe v. Wade, Brown v. Board of Education and the United States v. Windsor fundamentally transforming the United States, to call a vacancy on the court a big deal would be an understatement.
In an interesting quirk to the US constitution, it is the president who nominates the Supreme Court justice and it is the Senate that hears and confirms. In seemingly disregarding judicial independence and neutrality, controversy arises! President Trump’s nominee, Amy Coney Barrett, is a proud textualist, meaning that she believes the constitution should be interpreted in its most literal form. Judges that ascribe to this judicial philosophy tend to produce restrained rulings that favour gun rights, religious freedom and state’s rights. Justice Ruth Bader Ginsburg, in contrast, favoured a judicial activist philosophy, interpreting the constitution as a living document that needs to be applied within the context of the 21st century.
Naturally, however, Justices claim to work for the American people, not the president or a party. Amy Coney Barrett is more than a Trump nominee; she is an esteemed academic and judge who boasts an impressive catalogue of work. As a devout Catholic, she claims that her religion and personal beliefs will not impede her ability to act as a neutral judge. However invasive critiques of her religion can become, fears towards her nomination are not unfounded. President Trump and the Christian right continue to express their desire to overturn Roe v. Wade, the monumental 1973 judgment ensuring a woman’s rights to an abortion. Therefore, Trump nominating a judge to achieve these ends seems plausible.
With an election looming around the corner, making political connections in what should be a neutral nomination process is impossible to avoid. Supreme Court nomination hearings by the Senate Judiciary Committee have a long history of contention, dating back to Robert Bork’s nomination in 1987, through to the Republican-controlled Senate Judiciary Committee’s refusal to hear Obama’s nominee, Merrick Garland, due to their belief that it was too close to an election for Obama to make such a nomination … interesting! Luckily for Trump, the Senate remains Republican-controlled, possessing the numbers to achieve the simple majority and confirm the nomination of Amy Coney Barrett to the Supreme Court.
Regarding the Supreme Court, the stars have aligned for President Trump. Within his first term, he has filled two vacancies, soon to be three. To put that into perspective, in Obama’s eight years in office, he filled only two vacancies. With Amy Coney Barrett only 48 years old, Trump’s court legacy will long outlive his presidency. Whether Trump wins the election again in November or not, future Democratic lawmakers are likely to struggle against the increasingly conservative court.