Supreme Court Justice Ruth Bader Ginsburg says it’s improper for a Supreme Court justice to time a resignation for political purposes, and thus will not do so just because the next president may be a Republican. Ian Millhiser explains what happens if Ginsburg is replaced by a Republican:
No More Marriage Equality: United States v. Windsor — the decision striking down the unconstitutional Defense of Marriage Act — was a 5-4 decision with Ginsburg in the majority. If Ginsburg is replaced by another conservative, DOMA could roar back to life. At the very least, the nation’s drive towards nationwide marriage equality could come to a screeching halt.
Criminalizing Sex: Although Lawrence v. Texas, which struck down Texas’ “sodomy” law, was a 6-3 decision, one of those six justices has since been replaced by the staunchly conservative Justice Samuel Alito. If another member of the Lawrence majority is replaced, it could lead to gay sex being outlawed entirely in several states. Lawrence‘s holding, however extends far beyond gay couples to prohibit laws criminalizing non-commercial sexual activity between consenting adults. Thus, if Lawrence falls, the government could find its way into every American’s bedroom.
The End of Abortion Rights: Roe v. Wade is already on life support. Indeed, Justice Anthony Kennedy, who is the so-called swing vote on abortion, hasn’t voted to strike a law restricting the right to choose in 21 years. Nevertheless, Kennedy provided the key fifth vote to retain “the essential holding of Roe v. Wade” in a case called Planned Parenthood v. Casey. If Ginsburg is replaced by a conservative, there will likely be only four votes willing to retain that holding.
Watering Down Minority Votes: Five justices voted in League of United Latin American Citizens v. Perry to strike part of a Texas redistricting map because it tried to protect an incumbent Republican congressman by reducing the impact of Latino voters. If Ginsburg is replaced by a conservative, these kinds of tactics could become common.
Executing Children & The Intellectually Disabled: There are almost certainly four votes on the Supreme Court to permit executions of children and the intellectually disabled. Ginsburg’s replacement could be the fifth.
Judges for Sale: Four justices joined a dissent arguing that there’s nothing wrong with a wealthy businessman spending $3 million to place a judge on a state supreme court — only to have that judge cast the key vote to overturn a $50 million verdict against the businessman’s company. Ginsburg’s replacement could places judges up for sale.
Millions Without Health Care: Finally, the decision that largely preserved the Affordable Care Act was a 5-4 decision, with four justices voting to repeal Obamacare in its entirety. If those four justices gain a fifth vote, it could not only strip millions of Americans of the health insurance that they will soon gain under this law, but it could toss the entire American health care system into chaos. Among other things, if the dissent’s plan to repeal the Affordable Care Act in its entirety were to actually happen, Medicare could lose its ability to pay claims until the agency that administers the program completed a lengthy rulemaking process that can take months.