Why is the appointment of the next US supreme court judge so important?

Posted on: 15 October 2020 by Dr Sean Haughey in 2020 posts

Amy Coney-Barrett

The debate continues about Amy Coney Barrett, who has been selected by President Trump as the nominated replacement for the late Ruth Bader Ginsberg, for the role of supreme court judge.

We asked politics lecturer, Dr Sean Haughey, to give an explainer as to why the role is such a pivotal appointment in the US and how this relates to the upcoming presidential election.

Watch the video


Here's a written version of Sean's video:

I've been asked to give a kind of quick explainer to what's going on at the moment in the USA regarding the Supreme Court. For those of you who follow American politics, no doubt you will be aware that a few weeks ago Ruth Bader Ginsburg passed away. Ruth Bader Ginsburg was a justice on the U.S. Supreme Court that has given rise to a vacancy on that court. Now the U.S. constitution says that it falls to the sitting president to nominate a replacement when a vacancy arises on the court and he or she will nominate that person as the replacement. And then that person will be confirmed or rejected by Congress in the Senate.

So if you tune into any American TV channels you'll see that the story of the Supreme Court replacement is dominating the news. You know, wall to wall coverage of this of the process that's going on at the moment. And I think the media attention on this issue is so intense and pervasivefor two reasons.

One is because Ruth Bader Ginsburg has passed away so close to the next election. And some people believe that it's just too soon for the next election for Donald Trump to appoint a replacement i.e. we should wait until the next election until the American people decide who they want their president to be. And then that new president, whoever he may be, is the person who gets the honour of appointing the next justice to the Supreme Court. So that's one reason.

The second is because it would appear that we're going to have the replacement of a liberal justice. Most people would regard Ruth Bader Ginsburg as a very progressive judge before she was a justice on the Supreme Court. She was a civil rights lawyer. She challenged a lot of laws in the United States that she argued were discriminatory towards women. So she would be considered a very liberal judge. She's been replaced by a judge called Amy Coney Barrett, who most people would regard as a conservative judge. A very conservative judge. She takes a very fundamental position on the Second Amendment, which is the right to bear arms to own weaponry in the United States. She's on record, for example, saying that even people convicted of felonies should still have the right to go out and purchase and own weapons.

She has also said that the Supreme Court got it wrong when it upheld the constitutionality of Obamacare. So that was the universal health care package that Barack Obama introduced a few years ago. It was challenged in the Supreme Court. The Supreme Court upheld Obamacare and said Obamacare could stay and Amy Coney Barrett has said that that was wrongly decided. So there are people particularly on the left in the United States, who worry that if Obamacare is challenged again in the courts – and it's going to be actually in a couple of weeks - that Amy Coney Barrett will try to strike down Obamacare.

It might strike you as strange that I'm using these terms that we usually reserve for politicians: conservative and liberal – for judges. And here we just tend to think of judges as kind of impartial implementers of the law.

In the USA the courts and particularly the Supreme Court is increasingly politicised. And there's this fascination with who judges are. Their background, what they've done and said and written, before they were judges.

Why is that? Well, I think one of the reasons is because American politics is so gridlocked. The divide between Republicans and Democrats is so deep that very little has been done. Very little is achievable in the legislatures and state legislatures and in the federal legislature and in Congress. Such is the divide that there's very little bipartisanship and it's very, very difficult for laws to be passed. So because change isn't happening in the legislature, people are taking their issues to the courts.

People are 'lawyering up' and taking their causes and issues to the courts, with the intention that it will get to the Supreme Court. And then when the Supreme Court rules on that issue it becomes federal law. So we think of same-sex marriage for example and the court a few years ago ruled that a ban on same-sex marriage was unconstitutional. Therefore, every state in the USA has to facilitate same-sex marriage.

So there is this obsession with who sits on the court. It's a lot of power in the hands of very few people. There are only nine justices on the US Supreme Court. But that explains it. It's becoming an increasingly central actor in U.S. politics and the court is seen as a kind of battleground of the culture wars going on in the United States, that explains this fascination in the USA with who these judges are.

You know here in the UK you would be hard pressed to name one of the judges on the U.S. Supreme Court. The story's a bit different in the USA. So if you go on YouTube for example, or go on to any of the U.S. TV shows, you'll see that at the moment there's a kind of public interview process going on for the person that President Trump has nominated as the replacement, in Amy Coney Barrett.

I would encourage you to watch those hearings. You'll get senators challenging the judge on her and previous opinions or things that she's written as an academic, or legal opinions that she has authored as a judge. But it's also a really fascinating window on American democracy and where American democracy is now. Things that we would consider as kind of settled issues here, are still being debated, are still live issues in U.S. politics. So you'll get senators asking questions like is there a right to privacy? Or, how far does our right to privacy extend before the state can intervene? Does a woman have a constitutional right to abortion? The Supreme Court has said that she does. But is that challengeable. How far does the right to own weapons go before the state can take them away?  

So even if you're if you're uninterested in America and the court I think it's a fascinating process. We may get some very interesting exchanges, confrontational exchanges, between Democratic and Republican senators, because it is so close to the election. And in some respects this is an opportunity for those senators to also kind of electioneer for their party, because we're going to have a face-off between Joe Biden and Donald Trump in a matter of weeks.

So that's what's going on now. That is what this confirmation process is about. This is why the court is so important in American politics. This fascination on who judges are, which I actually think is a little bit unhealthy, but it is a symptom of where American politics is right now.

I hope that explainer was useful. And as I say, I would encourage you to tune in. And if you want to, on YouTube or any of the American news channels, you'll be able to watch wall to wall, minute to minute coverage of these hearings. And they are fascinating - or at least for a Supreme Court geek like me, they are fascinating! So happy viewing.

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More about Sean and his research

Study Politics at the University of Liverpool.