By Mark Gruenberg
When the U.S. Supreme Court opens its new term on the first Monday in October, the symbol of its most important looming development will not be an individual case but an empty chair draped in black.
The chair belonged to the late Justice Ruth Bader Ginsburg, the longtime crusader for women’s rights, workers’ rights, people of colour, and others our nation has often left behind. Ginsburg, one of the court’s three Jewish justices, died as the sun was setting on Sept. 18 to usher in Rosh Hashanah, the Jewish New Year. A death that day has extra significance.
And as the remaining eight justices prepare to hear cases, the ongoing war will occur over whether current GOP Oval Office occupant Donald Trump or his opponent, Democratic presidential nominee Joe Biden, will name justice #9.
In short, though the justices will hear a case on Nov. 10 deciding the fate of health care, via the Affordable Care Act, for everyone in the country, the key decision will be on the identity and ideology of the replacement for Ginsburg, with huge consequences for workers.
If the Senate’s ruling Republicans win, there will be a quick vote on Trump’s nominee, guaranteed to be an extreme right-wing woman approved by the so-called Federalist Society and cheered by conservative evangelicals, corporate interests, the 1%, and white Protestant males of Northern European descent, but very few others around the U.S.
That quick greased-skids vote will occur even though, four years ago, Majority Leader Mitch McConnell, R-Ky., barred hearings, much less a vote, on Democratic President Barack Obama’s nomination of federal appellate Judge Merrick Garland to succeed conservative Justice Antonin Scalia, who had died that February—not in September.
“Let the people have a voice,” McConnell said then. But Trump toady has reversed course, of course, though the election is days away.
If the Republicans lose, and Biden wins the November election and gets a chance to make the pick, his nominee will be far different from the ideologue the radical right demands. He has not released a list of potential candidates.
The consequences for workers, as well as women, people of colour, and the rest of the U.S. will be momentous, as a Trump-named justice could render potential “swing votes” on the High Court irrelevant, by cementing a far-right GOP-named majority on the tribunal.
Unions are generally campaigning to pressure senators to delay the vote until after next year’s presidential inauguration. And votes on a new justice have become a campaign issue.
There are good reasons why, and Minority Leader Charles Schumer, D-N.Y., laid them out in a biting, pointed floor speech days after Ginsburg died.
“The right of workers to organize and collectively bargain for fair wages at a time of growing income inequality hangs in the balance,” he declared, along with so much else.
“All the rights that could be undone or unwound by a conservative majority on the court” include “the right to join a union, marry whom you love, freely exercise your right to vote, the right of a parent with a child who has cancer not to watch, helpless, as their son or daughter suffers without proper healthcare.”
“This vacancy…puts everything–everything–on the line.”
Trump has released lists of proposed nominees he would consider for the nation’s top bench. Two he named, right-wing Sens. Ted Cruz, R-Texas, and Josh Hawley, R-Mo., took themselves out of the running. They prefer to wait to run for president in the 2024 election.
A third GOP senator, and the most-extreme, on Trump’s lists, Tom Cotton of Arkansas, said he might consider joining the court. Trump himself promised to nominate a woman.
But male or female, the next justice will join the others to tackle those big-ticket issues Schumer mentioned, probably along with the aftermath of the election itself. And if the ninth justice joins the court before Nov. 10, she or he will rule on the ACA, too. That’s the biggest case of the 31 the justices have put on their docket so far.
Opposing the ACA are “red states” led by Texas, the Trump regime, the Senate’s GOP majority, and right-wing special interests. California Attorney General Xavier Becerra (D) and a coalition of “blue state” AGs lead its defense. The Democratic-run U.S. House joined in. In a friend-of-the-court brief, filed to show where the union stands, so do the Service Employees.
Their brief is filled with stories of individuals whose health care, and sometimes their lives, were saved by the ACA’s coverage. “The ACA allows millions of Americans to obtain medical care without risking financial ruin. Invalidating it would cause sickness, death, and vast economic harm, as the experiences of healthcare consumers and providers show,” SEIU says.
“What makes the ACA challengers’ arguments particularly pernicious is the real-world threat they pose to millions of Americans’ health, economic security, and lives…In the final analysis, plaintiffs’ [challengers’] arguments are an effort to win in this court the policy battle ACA’s opponents lost in Congress. But making law contrary to the will of Congress is not this court’s role.”
But the weight of a new ninth justice on the fate of the ACA was best summed up in a tweet from James Beryllis, a reader of the Washington Post website, after he saw a story quoting Senate Democrats as saying they can’t stop a vote on Trump’s pick. The story did not say whether they could muster the votes against the Trump nominee.
“On November 10th, the now conservative-leaning SCOTUS will hear the case to dismantle the ACA, including its PRE-EXISTING CONDITION protection clause. If you suffer from diabetes, cancer, heart disease, asthma, or any other chronic condition, your health insurance will drop you like a bad habit. Trump has no replacement plan,” Beryllis wrote. (IPA Service)