Battle Over RBG Seat Could Damage Supreme Court's Reputation, Set Off Legitimacy Crisis

The American public gives the third branch of government relatively high marks. That could change if Trump moves forward this close to the election.

Compared to the other two branches of government, the American public’s faith in the Supreme Court is relatively high. But the reputation of the nation’s high court could change in an instant if a highly polarizing president moves to fill a third spot on the bench less than two months before the 2020 election. 

The death of Ruth Bader Ginsburg on Friday instantly raises the stakes of the presidential race. It could also send the third branch of the U.S. government spiraling even further toward a legitimacy crisis.

Polls last year found that the Supreme Court has mostly positive public support. About 68% of Americans think it will act in the public’s best interest, while a majority approve of the job the court does. Half of the country considered the court moderate. Most of the American public views the court not as individual jurists but as a collective.

Adding another Trump nominee under disputed circumstances could throw any good faith the Supreme Court has built into question and cause the American public to view the judiciary branch as even more of a partisan tool. 

Trump, despite winning the Electoral College in 2016, lost the popular vote by nearly 2.9 million votes. Two of his Supreme Court nominees have been confirmed by the Senate, the legislative body that has been called “Affirmative Action for White People” and “America’s Most Structurally Racist Institution.” The Democratic-controlled House, which more accurately reflects the will of the American people, doesn’t have any say in the process.

President Donald Trump pumps his fist as he arrives for a "Great American Comeback" rally Friday in Bemidji, Minnesota. Trump
President Donald Trump pumps his fist as he arrives for a "Great American Comeback" rally Friday in Bemidji, Minnesota. Trump may try to get a third Supreme Court nominee confirmed before the November election.

Ginsburg’s dying wish was that she “not be replaced until a new president is installed,” according to NPR. Senate Majority Leader Mitch McConnell (R-Kentucky) quickly indicated he’d ignore that wish, issuing a statement hours after her death was announced indicating that Trump’s nominee “will receive a vote on the floor of the United States Senate.”

The precise timing of the process, whether the vote will take place before the election or between the election and the next inauguration, is unclear.

Many Democrats already consider Neil Gorsuch’s position on the court a “stolen” seat. Justice Antonin Scalia died nearly eight months before the 2016 election, but McConnell refused to consider President Barack Obama’s nominee to replace him.

If Trump wins the election in November and Republicans maintain control of the Senate, the whole thing will be a wash. But if he loses, or if the Senate swings to Democrats, more than half the country will see it as an illegitimate institution. If Democrats see the deeply partisan process as fundamentally unfair, it could set off an arms race to pack the court in an attempt to rectify what they see as a corrupt process. And the Supreme Court’s reputation may be permanently, and irreversibly, altered.