Jurisprudence

Trump Will Nominate Amy Coney Barrett Before Ruth Bader Ginsburg Is Buried

The flag-draped casket of the late Associate Justice Ruth Bader Ginsburg lies in state in Statuary Hall of the US Capitol.
The flag-draped casket of the late Associate Justice Ruth Bader Ginsburg lies in state in Statuary Hall of the US Capitol. Pool/Getty Images

Donald Trump will nominate Amy Coney Barrett to fill Justice Ruth Bader Ginsburg’s seat on the Supreme Court, CNN, the New York Times, and NBC News reported on Friday. In a timeline that is unprecedented in modern American history, we are learning the next nominee before the former Justice is even buried. The news reports on Barrett proceed Trump’s planned, formal announcement, scheduled for 5 p.m. on Saturday. Ginsburg’s funeral is next week.

At 48, Barrett will be the youngest Supreme Court nominee since Clarence Thomas’ nomination at age 43 in 1991. Her confirmation would “dramatically flip the balance of power in the court,” as she herself described the impact of flipping a seat in 2016. Barrett is a hardcore conservative who will likely vote to overturn Roe v. Wade, expand the Second Amendment, and curtail LGBTQ equality. She may also cast the fifth vote to eradicate the Affordable Care Act, stripping health insurance from more than 20 million Americans. She is a longtime member of the Federalist Society, the lavishly funded network of conservative attorneys that has provided the intellectual scaffolding of the Trump administration. If confirmed, she will implement the jurisprudence of Trumpism long after Donald Trump himself has left office. She may serve into the 2050s and beyond.

Barrett would pull the Supreme Court farther to the right than it has been at any point since the 1930s. Much more than the ACA would be jeopardized by her confirmation; the new majority could imperil virtually every policy a Democratic Congress might pass under Joe Biden. The federal government’s ability to limit carbon emissions, for instance, would be seriously threatened by a 6–3 conservative majority. So would Congress’ authority to regulate other pollutants like lead and mercury; protect endangered species; safeguard voting rights; guarantee access to contraception; expand health coverage; prevent labor exploitation; fight COVID-19; and combat racial discrimination in housing, education, employment, credit, and more.

Trump and his Republican allies in the Senate are eager to place Barrett on the Supreme Court before Election Day. The president has explained that he is eager to place a justice on the court who will abet his plans to steal the election. By his own admission, Trump seeks another conservative justice to ensure that the Supreme Court will nullify enough Democratic votes to hand him a second term. He appears to have selected Barrett on the conviction that she will serve this role. And he is nominating her quickly, so that she can be seated by election day. According to the New York Times, Trump did not interview anyone else.

By supporting Barrett’s confirmation, Senate Republicans have abandoned their own putative rule that no justice should be confirmed in a presidential election year. After Justice Antonin Scalia’s death in 2016, Senate Majority Leader Mitch McConnell said that Barack Obama should “let the American people decide” who should appoint the next justice. Voting is well under way already, but McConnell has now decided that the American people should have no say in who will choose Ginsburg’s successor.

Following Scalia’s death, Obama waited more than a month to nominate Merrick Garland, largely out of respect for the late justice. Trump, McConnell, and Barrett have shown Ginsburg no such courtesy. She will be buried at Arlington National Cemetery next week, resting alongside her husband, Marty, who died in 2010. But when Barrett formally accepts the nomination, Ginsburg’s body will not yet be in the ground.