Here’s What’s at Stake If Trump Replaces RBG on the U.S. Supreme Court

By Shani Saxon Sep 21, 2020

Justice Ruth Bader Ginsburg’s death due to pancreatic-cancer complications was announced by The Supreme Court of the United States (SCOTUS) at 7:28 PM on Friday, September 18.

By 8:51 PM, Senate Majority Leader Mitch McConnell (R-Ky.) released a statement saying, “President Trump’s nominee will receive a vote on the floor,” The Washington Post reports. And as Vox reported less than a month before Ginsburg’s death, the stakes are enormous if Trump successfully places another justice on the Supreme Court.  

If Republicans gain a 6-3 majority on the Supreme Court, there is a high chance conservatives will hold that majority for many years to come. Here are some of the biggest issues that could be impacted:


As Vox states, America’s democracy is already on the verge of failing—and things could get much worse. For starters:

Americans have a president who received nearly 3 million fewer votes than his Democratic opponent in 2016 and a Senate where, thanks to malapportionment, the Republican “majority” represents 15 million fewer people than the Democratic “minority.” Both of Trump’s justices were nominated by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the nation. Meanwhile, the Court’s Republican majority has been a disaster for democracy. … Under [Chief Justice John G. Roberts’s] leadership the Supreme Court dismantled much of the Voting Rights Act. It’s neutered most of the nation’s campaign finance laws. And it’s permitted laws that serve no purpose other than voter suppression

“There are already five conservative votes on the Supreme Court to dismantle campaign finance reforms,” Ciara Torres-Spelliscy, a law professor at Stetson University, told Vox. A third Trump justice would only provide a “superfluous sixth vote” for the Court’s decisions undermining these laws and could get effectively gut what remains of the Voting Rights Act, according to Vox.  


The Supreme Court’s constitutional decisions protecting LGBTQ rights stand on “precarious ground,” as Vox points out:

Obergefell v. Hodges (2015), the Supreme Court landmark decision establishing that same-sex couples enjoy the same marriage rights as opposite-sex couples, was a 5-4 decision with [Justice Anthony Kennedy] in the majority. Lawrence v. Texas (2003), which placed strict limits on the government’s ability to prohibit sexual activity between consenting adults, and Romer v. Evans (1996), which held that the government may not pass laws solely to express “animus” against gay people, were both 6-3 decisions with Justice Sandra Day O’Connor and Kennedy in the majority.

O’Connor and Kennedy were replaced with hardline conservatives.

All three of these decisions could fall if a state passes a law that violates one of them, according to Vox. This would test whether a conservative court would strike down the law completely. “If Trump gets to fill another seat, it is even less clear that the Court’s new majority will value stare decisis more than it values a conservative approach to LGBTQ rights,” Vox reports. 


Justice Roberts leans liberal “in cases where police use new technology to conduct intrusive searches,” Vox reports. 

According to the news outlet:

The gap between Roberts and his fellow Republicans was most on display in Carpenter v. United States (2018), where Roberts voted with his four liberal colleagues, and held that police “must generally obtain a warrant supported by probable cause” before obtaining cellphone records that can be used to track an individual’s movement. 

That being said, Carpenter could certainly fall without Roberts as the swing vote. “At the very least,” Vox reports,  “the Court is likely to grow less skeptical of police overreach and less fearful of the awesome surveillance power given to police by new technology.”


Twenty million Americans could lose health coverage smack dab in the middle of a global pandemic. According to The Post, a week after the upcoming elections, the court is scheduled to hear oral arguments in the Affordable Care Act (ACA) case brought by Republicans to invalidate the 2010 health-care law. Justice Roberts, who would no longer be the swing vote, has twice saved the ACA in 5-to-4 rulings by joining Ginsburg. The Trump administration is supporting the case to get rid of the law in its entirety, and a new Trump justice could deliver the decisive fifth vote to make that happen.


Following news of Ginsburg’s death, U.S. Rep. Doug Collins (R-Ga.), tweeted, "RIP to the more than 30 million innocent babies that have been murdered during the decades that Ruth Bader Ginsburg defended pro-abortion laws," Al Jazeera reported. He added that Trump would nominate a "replacement that values human life."

If Collins gets his way, reproductive rights will stand on very shaky ground. "The stakes just got even higher this election—our health, our bodies, and our lives are all on the line," Jenny Lawson, executive director of Planned Parenthood’s voting outreach arm said in a statement obtained by Al Jazeera. "The fate of our rights … and our country depend on what happens over the coming months," Planned Parenthood President and CEO Alexis McGill Johnson added in a statement

"All of the people Trump has named as potential nominees are known to be anti-abortion," Melanie Sloan, a former federal prosecutor, told Al Jazeera. "A new anti-abortion judge would be all they need to overturn Roe vs Wade," she said.

"There’s too much emphasis being placed on whether Roe is overturned because they can, you know, make abortion as good as illegal for millions of people without overturning Roe," Jennifer Dalven, director of the ACLU Reproductive Freedom Project, told ABC News. "And that remains true today, but now, I think, with the potential of somebody else, a new justice, and President Trump having appointed three justices on the Supreme Court, it makes it so that Roe is in even further jeopardy—the right to have an abortion at all."