Everyone understands why Donald Trump and Mitch McConnell are in such a rush to replace Ruth Bader Ginsburg with a new Supreme Court justice: It’s the election, stupid. The date that matters isn’t Jan. 20, Inauguration Day. It’s Nov. 3, Election Day. The president and Senate majority leader want their justice in place in case we see a contested election in a replay of Bush v. Gore.
If this prospect terrifies you, your fear is not unreasonable. Until Ginsburg died, those of us who spend our time worrying about scenarios in which the election goes to the courts had some partial solace for our concerns: Chief Justice John Roberts doesn’t want the court to be seen as partisan. Yes, he’s a conservative. Nominated by George W. Bush, he’s had an obvious willingness to issue rulings that have helped Republicans — most notably, his decision eviscerating the Voting Rights Act in the 2013 case of Shelby County v. Holder — but Roberts cares a lot about the reputation of the Supreme Court.
It was therefore possible to think that, as the swing vote, Roberts would shy away from joining a conservative majority in a 5-4 decision handing the presidency to Trump. Such a vote would have undermined the chief justice’s whole project of protecting the court from appearing to be a subsidiary of the Republican Party. That’s one reason leading election law scholars like Professor Nathaniel Persily of Stanford Law School, who I interviewed on my podcast this month, expect that Roberts would not want to throw a contested election to Trump.
The problem, of course, is that if Ginsburg is replaced by a hard-line conservative, Roberts will no longer be the swing vote. In a contested election, he could vote with the court’s three remaining liberals and still be in dissent.
Because Roberts likes to be in charge and likes to write the majority opinion in big cases, this situation would put him in a serious bind. He would try to win over conservatives to a middle position, but he might not succeed. Then he would probably dissent, at least saving the 5-4 breakdown from matching the party of the presidents who nominated them.
Under the right circumstances, the Supreme Court actually could give the election to Trump despite Roberts’s likely objection. This would not only appall liberals, obviously, but would hurt the court’s legitimacy for years, just as Bush v. Gore did.
Is there any escape in this scenario? Arguably, there are several.
First, a brand-new justice, nominated and confirmed just days before the election, would herself not want to be seen as merely a tool of Trump. She might bend over backwards not to cast a deciding vote that would be seen as giving the election to the president who just chose her.
A second possibility is that one or more conservative justices, in addition to Roberts, might see that giving Trump the election could, in the long run, lead to court-packing whenever Democrats regain power. Because the justices would be giving Trump the presidency for four more years, court-packing couldn’t happen until 2025 at the earliest. But if the Supreme Court were to give a second Republican the presidency — particularly if Trump loses the popular vote as he did in 2016, and as George W. Bush did in 2000 — that would enrage Democrats more or less permanently. If a conservative justice other than Roberts feared court-packing, then there might be another vote available to deny Trump the presidency.
The third and last possibility is that there is another conservative justice who cares about the reputation of the Supreme Court as much as Roberts does. The best candidate here is Brett Kavanaugh. Kavanaugh is deeply conservative, but he isn’t an ideologue or would-be intellectual in the mold of Justices Clarence Thomas, Neil Gorsuch or Samuel Alito. Kavanaugh is a pragmatist about courts, politics and power.
It’s possible — just possible — to imagine Kavanaugh joining Roberts to cross party lines and save the court from the loss of legitimacy that would come with declaring Trump the winner in the aftermath of the confirmation of a new justice. Conservatives would be infuriated with him, which Kavanaugh would not enjoy. But liberals might end up having to rethink their attitude towards the justice, formed in the crucible of his confirmation hearing. That would help Kavanaugh’s judicial reputation over the long term.
For liberal court watchers, the situation is dire. But it is not yet time to write off the Supreme Court.
Noah Feldman is a Bloomberg columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. © 2020 Bloomberg News. Distributed by Tribune Content Agency.
