ILLUSTRATION BY FABIO BUONOCORE
With the death of Supreme Court Justice Ruth Bader Ginsburg, President Trump will have his third opportunity to nominate a justice to the country’s highest court. This nomination, however, has the highest stakes yet for Trump, the Republican Party and the conservative legal movement. If successful, it may cement a 6-3 conservative majority on the court that could fundamentally push law in the United States to the right.
Of course, Trump hasn’t yet announced who his nominee will be, although he’s pledged to appoint a woman, which does narrow the possibilities somewhat. But it’s hard to predict how any given candidate’s ideology will compare to the current justices — let alone how she will rule once she joins the court. If we assume that Trump will nominate one of a handful of people who have repeatedly appeared in reports about his short list, though, Ginsburg’s replacement will almost certainly represent one of the three biggest ideological shifts on the court since 1953:
It’s really, really rare for presidents to be able to seismically shift the court’s center of gravity with a single nomination. But that’s exactly what Trump’s replacement for Ginsburg is poised to do. There are only two other moments in modern Supreme Court history that are comparable to this one: the replacement of Justice Thurgood Marshall with Justice Clarence Thomas in 1991 and the replacement of Chief Justice Earl Warren with Chief Justice Warren Burger in 1969.
Big swings in the court’s make-up are rare
Supreme Court justice replacements by the biggest changes in ideological rank, where 1 is most liberal and 9 is most conservative
the Six biggest shifts on the supreme CourttermJusticeRankReplacementrankchange1991Marshall1Thomas9+81969Warren2Burger9+72020Ginsburg2Trump nominee+5/+6*1969Fortas3Blackmun8+51990Brennan2Souter5+31962Frankfurter8Goldberg5-31965Goldberg5Fortas2-3*Estimated change
When there were more than nine justices in a term, we dropped the justice(s) who voted in the fewest cases (e.g. O’Connor in 2005, Douglas in 1975).
Source: Martin-Quinn scores
Of course, it’s important to underscore that the data we have for Ginsburg’s potential replacement isn’t perfect. For one thing, we are relying on Judicial Common Space scores, which are based on the ideology of the senators who were instrumental in getting these judges appointed or the nominating president, and not based on the judges’ actual words or actions once they got there.1
We looked at the JCS scores for four federal judges who have all floated to the top of short-lists for the nomination: Amy Coney Barrett, Barbara Lagoa, Allison Jones Rushing and Joan Larsen. Each of these judges would bring something different to the court, but broadly speaking, the effect is the same no matter who Trump chooses: All of these nominations would result in a far more conservative justice taking the place of the court’s second-most liberal justice. According to their JCS scores, all four fall between Justice Neil Gorsuch and Thomas ideologically — that is, somewhere in the vicinity of Justice Samuel Alito, who is currently the second-most conservative justice on the court.
This is a pivotal moment for the court, but it’s not unprecedented. In fact, it looks as if this juncture might share a number of similarities with the other two huge swings that have occurred since 1953. For example, when Marshall retired, he was one of the most liberal justices on the court. But with his departure, President George H.W. Bush was able to replace the first Black Supreme Court justice with Thomas, another Black legal star who was Marshall’s polar opposite in every other respect — and has consistently been the most conservative justice on the court since he joined. We don’t yet know who Ginsburg’s replacement will be, but it’s likely to be a woman who’s the inverse of Ginsburg in many ways — including her stalwart support for abortion rights.
Additionally, when President Richard Nixon nominated Warren Burger to replace Earl Warren as chief justice, he effectively ended the 15-year liberal era that came to define Warren’s tenure. Similarly, the Roberts court might be about to undergo its own transformation, as any of the potential nominees on Trump’s short lists would almost certainly land to the right of Chief Justice John Roberts, knocking him out of the ideological center of the court and limiting his ability to serve as a moderating force. A judge like Barrett or Lagoa, who appear to be the front-runners, could end up being even more staunchly conservative than Justice Gorsuch — who has flipped to the liberals a handful of times during his three years on the court — or Justice Brett Kavanaugh.
In fact, even if Trump’s nominee is on the less conservative end of our estimated range, she will likely have a much bigger impact on the makeup of the court than either Gorsuch or Kavanaugh, who have brought their own distinctive way of thinking about the law to the Supreme Court but didn’t differ that dramaticatically from their the justices who previously filled their seats. Part of Gorsuch’s appeal when he was appointed to the court in 2017 was in his judicial similarities to his predecessor, Justice Antonin Scalia. And while the replacement of Justice Anthony Kennedy with Kavanaugh in 2018 got a lot of attention for supposedly replacing the court’s swing vote with a reliably conservative one, the two were not actually that ideologically far apart.
And that’s why this Supreme Court nomination fight will be such a big deal. It’s hard to figure out exactly how conservative or liberal a given person actually is before they join the court, and it’s also hard to predict how they’ll rule once they get there. And there’s always the possibility that judges could drift to the left or right once they have a lifetime appointment to the nation’s highest court. But we can see from this analysis that whoever the nominee is, they’re likely to change the court in ways that we’ve only seen a handful of times in modern history. Almost no president gets that kind of opportunity. And that’s why Trump — and the Republican-controlled Senate — may be willing to risk a lot to make it happen.