US-Supreme-Court

Q&A: BGSU's Dr. Joshua Boston on the U.S. Supreme Court and the 2020 Election

BGSU political science faculty member shares expertise on the U.S. Supreme Court

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Dr. Joshua Boston is an assistant professor of political science at Bowling Green State University whose research focuses on American political institutions, with a strong emphasis on judicial politics. His primary interests are related to law and courts, looking at the language judges choose to resolve disputes. He enjoys teaching and working with students, promoting classroom discussions that often lead to promising research questions for him and his students. With the Sept. 18 death of Supreme Court Justice Ruth Bader Ginsburg, Boston cautions that the Supreme Court should not become a campaign “wedge issue.”

What is the current process for a Supreme Court appointment? 

There is a constitutional process by which a president nominates and the Senate provides advice and consent. For all of the Article III judicial offices, from the nine justices of the Supreme Court down to the federal district courts that exist across all states, all 870 of the judges that are currently sitting have gone through that Senate process of advice and consent. That’s the process President Donald Trump began last month when he announced his nomination of Judge Amy Coney Barrett.

Along with the constitutional process, there are informal processes that go on in the White House, as well as bargaining that goes on between the White House and pivotal members of the Senate. Additionally, there are formal rules that exist within the Senate by which the Senate must abide during the advice and consent process for Supreme Court nominations and most policy making. Over time we have seen those rules become more lax. The formal rule of super majority - for passage of policies as well as advise and consent - requires votes by 60 of 100 Senators to end debates in the Senate. Over time, the super majority has decreased from two-thirds to three-fifths. And now, the super majority rule for any judicial nominee is eliminated in order to end debate on any judicial nominations.

The last Supreme Court justice that required a super majority was Justice Elena Kagan in 2010. The Democrats were still in control of the Senate at that point but they would still have to have 60 votes to end debate, which would require the support of some Republican senators. A few years later, the Senate started getting rid of that requirement for lower federal judges (in 2013) and now that is the case for Supreme Court justices (as of 2017).

That has happened because over time we have seen the norms of collegiality in the Senate evaporate. It used to be, when the parties weren’t as polarized that the Senate valued bi-partisan support. As the parties have become polarized at the national level, we have seen them use tactics to attack nominated judges, nominated justices. That has made it harder to get people confirmed. And over time, we’ve also seen confirmation votes get closer. Previously nomination votes were 99-1 or 100-0. Votes today are likely to be 52-48. We’ll probably see something very close to that to confirm Coney Barrett.

Has the process changed over time?

Yes, the process has changed dramatically over time. It used to be some nominations might be filibustered. For example, in 1968 President Lyndon Johnson nominated Abe Fortas a sitting justice to become the Chief Justice. The Senate filibustered his nomination because he had been accused of some ethical violations. We don’t talk about that nowadays, because it was expected. Now we make it so much more political; we use every little thing we can against people on the other side. That really started with Robert Bork’s confirmation hearing in 1987 and things have devolved over time. So the Supreme Court has become a campaign issue that politicians use between voters.

An important point to mention: The Senate has not technically changed its own rules. There are written Senate rules that are difficult to change. Instead, what they have done is change their formal precedents. What they do is a senator will make a point of order to the chair and they say, “A Supreme Court confirmation only requires a majority vote,” which is factually wrong. According to Senate rules it would require a 60-person majority. The chair would say, “No, it requires a super majority.” They would dispute the point of order and the senator would say, “I challenge that.” They would have a majority vote and if the vote sides with the point of order, it establishes that as a precedent even if the Senate rules are clearly stated.

Why is the appointment of a Supreme Court justice such a significant event in American politics?

At this point in time, it’s easy to understand why Justice Ginsburg’s seat is so valuable to liberals and conservatives, because—given polarization—the Court’s ideological composition hangs in the balance. But the reality is that any Supreme Court seat is valuable because it is a lifetime appointment. Who wouldn’t jump at the opportunity to have the job you’ve most wanted until you retire or for the rest of your life? They don’t make much money (compared to what they could make in private practice), but they get to make and interpret law. They get to do exactly what they wanted to do their whole lives. They have no fear of being fired or having their salary lowered.

And what politician wouldn’t jump at the chance to influence policy for decades? Oftentimes justices serve long after presidents and senators leave office. The Court has a huge, huge impact on policy. Last term alone, they handed down decisions such as the Bostock case, which provided rights to the LGBTQ community regarding sexual identity and sexual orientation - that power and not fearing retribution for handing down that sort of decision is extraordinary.

The significance of filling the vacancy from Justice Ginsburg’s death is, in a nutshell, because she is a liberal icon, having worked for policies that women and minority groups across the country. Plenty of liberals and even conservatives have pointed to her as a beacon for minority rights. She was very liberal and filling her vacancy even with someone as conservative as Amy Coney Barrett means a substantial shift in the court. Not that that is a bad thing, but it is something fundamentally different than what we had before. When it comes to estimates of the judges’ preferences, this will be the Court’s third most significant ideological shift in the modern era.

Is this appointment different or more significant than others, such as the replacement for Justice Antonin Scalia in 2016?

Even though I am someone who follows the Court closely, I was surprised beyond belief to learn of Justice Ginsburg’s death. I had gotten into my head that there was no way for a vacancy before the election.

I remember the same feeling in 2016 when Justice Antonin Scalia died unexpectedly. Though he was 79 and she was 87, it’s irrational not to consider they could die in office. But after Scalia’s death, if he had been replaced by a President Barack Obama appointee, it would have presented a similar shift, except it would have been from right of center to left of center. President Obama’s choice—D.C. Circuit Judge Merrick Garland—was not a Ginsburg-style liberal, but still represented a shift. However, it would not have been the same as taking someone on the pretty far left and replacing them with someone pretty far right. That is a significant shift.

What do you see as Justice Ginsburg’s most significant legacies in her time as a Justice? 

For people who have experienced discrimination, I think Justice Ginsburg’s leadership on issues such as gender equality, LGBTQ rights, it’s easy to see how somebody who stands up in that way becomes a cultural icon like she was. The Virginia Military Institute case is an example where Justice Ginsburg led the court to say, “Look, public institutions can’t just not let women in. That is not ok.”

She had served as a litigator for the ACLU. She did a good job of picking up great cases and getting them before the Supreme Court. She was inventive in the way she showed us the double standards that we have when it comes to gender and racial discrimination. 

Justice Ginsburg, considered a staunch liberal, was still very collegial and very collaborative with her fellow justices. In 40% of the cases where she wrote the majority opinion, the vote was 9-0. That’s among the highest of all her colleagues. Justice Anthony Kennedy, known as a swing vote on the Court for a long time, his rate was about 19%. So, 40% of the time that she was writing the majority opinion, she was marshaling a unanimous court. And 88% of the time, her cases had six or more votes supporting her side. That means she was convincing her conservative colleagues to join her side. That points to her ability to be a collaborative team player in the Supreme Court. 

And of course, it’s well documented that Ginsburg had a close relationship with Justice Scalia. Yin and yang. They were polar opposites when it came to world view, but there were still many times where they ended up on the same side. There are nine people who become close friends. They exchange drafts and are convinced by their colleagues; it still leads to a very friendly collegial court. As someone who studies the Court, I’m always encouraged by how they all just continue to get along.

What impact does the death of Justice Ruth Bader Ginsburg have on the Supreme Court? 

I hope I’m wrong, but I’m concerned about the legitimacy of the Court. I’m very concerned about how the public perceives the Court. Because the Supreme Court is not democratic, because there are no mechanisms of accountability, the Supreme Court relies heavily on its support from the mass public in order to get people to comply with the law. When the Supreme Court hands down an undesirable opinion, even an unpopular opinion, the justices count on the public to comply with the opinion even if they don’t like it.

Like the politicization of collegial norms in the Senate, the Court’s legitimacy also could evaporate. We have endured two really rough confirmations in the last four years. We had a vacancy that lasted over a year (from February 2016 to April 2017). At the time, Justice Neil Gorsuch’s confirmation went relatively smoothly after we got there. And then in 2018, that was the spectacle of all spectacles in the Brett Kavanaugh hearings.

We’ve experienced these two events already, and now we are we talking about a swing to the right, which actually could have happened at any point if Justice Ginsburg had died during the past year. But, because it is so close to the election and because we had a lot of rhetoric in 2016 about democratic norms of giving the voters a say on the Supreme Court, we are now caught in this hypocritical moment.

And, in truth, it has nothing to do with Amy Coney Barrett as an individual. She’s a qualified jurist. Gorsuch and Kavanaugh are qualified jurists. They are conservatives but they are highly, highly qualified. But it’s the appearance of politicization by the Senate, by interest groups, and now that kind of trickles down to us.

I am not just pointing fingers at the Republicans. The Democrats’ willingness to talk about expanding the court also hurts the legitimacy of the Supreme Court. The Democrats are essentially saying, “If the Court is not going to do what we want them to do, then we are going to make more justices.” That’s the wrong message to send about the Supreme Court. We shouldn’t think about courts giving us exactly what we want. We should think about courts in terms of fairness.

And that seems to be at risk right now regardless of Coney Barrett being confirmed. It’s not dependent on that individual; it’s dependent on the politicization of the process. Some of my colleagues at other colleges and universities think the Supreme Court is robust to this sort of threat and that these sorts of things won’t matter in the long term. I hope that’s true. I hope the Supreme Court is able to convince us to abide by the laws. But if we start saying, “I don’t like the way the Court has been politicized and I’m not going to obey the laws because the Court is not legitimate,” that poses a real problem for American governance.

What impact will the vacancy have on the 2020 Election?  

I think it could help or hurt candidates right now. The concern among Republicans, is that President Trump may not win re-election, so they need to move on this now to preserve his legacy when it comes to the judiciary. I’m not sure that’s a safe assumption. He may be able to use this to win.

The thought is that Amy Coney Barrett’s nomination—and ultimately her confirmation—makes it real for voters. They voted for Trump to get the kind of judges that he’s nominated to the federal bench. And now, a Supreme Court confirmation about one month to the election motivates voters to turn out for Trump again. That’s irrespective of the president’s temperament, which many people look past. He used Justice Scalia’s vacancy in 2016 to motivate voters. He could also use this to motivate voters much the same. That is certainly a potential, but we’ll see how it will play out.

The Democrats could similarly use it for mobilization. I think the vacancy now makes it real for voters on both sides. Some people vote for president to get the type of judges that they want. That can make it real for Democratic voters as well. However, historically, Democrats do not campaign on judicial issues. They don’t say, “We’re going to do this for you when it comes to the courts.” Republicans generally, but especially President Trump, release their short lists when they are running for president.

I think there are mobilization strategies to be played on both sides. Most importantly, the Senate Democrats should engage in the confirmation process for Coney Barrett. They should be a part of the advise-and-consent process. They should go and vote no on Judge Barrett if they oppose her. They should question her on the merits.

There is some talk among pundits that the Senate Democrats should not show up. But I think that poses a real risk of appearing petulant. It would show voters the kind of governing that the Democrats value—not showing up. If they show up and make a point to engage in the process, they can try to keep the norms of what the process is supposed to look like.

And that’s what we need above all else—a return to following norms and rules. That’s what keeps us all moving forward. A political scientist at Princeton recently tweeted the following, and I couldn’t agree more: “If I could effectively teach only one basic idea it would be this: the goal is not for all of us to like each other, it is for us to adopt rules and systems that encourage us to treat each other fairly even when we don’t like each other.”

I’ll add that it would be great if we liked each other despite wanting different things from government—even if we believe different things. After all, that’s one of the big things we can learn from the friendship between Justices Ginsburg and Scalia.