The death of Supreme Court Justice Ruth Bader Ginsburg in September has led to a point of contention in an already tumultuous election year – a veritable political brawl over her successor.
On Monday, the Senate Judiciary Committee began a fast-tracked confirmation hearing for President Trump's Supreme Court Nominee, Judge Amy Coney Barrett, with a vote expected one week later.
The outcome of this hearing and the subsequent full Senate vote could shift the balance of the Supreme Court and have long-lasting legal implications – so let's take a step back and explain why the stakes are so high.
The Supreme Court shapes our lives in ways many of us rarely think about.
Black and white students go to school across the country together because the Supreme Court determined that separate, segregated schools are not equal. Same-sex couples can be legally married because the Supreme Court ruled that marriage is a fundamental right. If you get arrested, you have the right to remain silent, because the Supreme Court says you do.
The high court is a creation of the U.S. Constitution, which established three separate branches of government — the legislative branch, made up of the House and Senate, the executive branch, which is the President, and the judicial branch. This third branch is composed of district courts, appellate courts, and of course, the Supreme Court of the United States.
Since the landmark Marbury v. Madison ruling in 1803, the Court has also interpreted its powers as being able to declare a law unconstitutional -- giving the justices the final say in disputes among the three branches.
Unlike the President and members of Congress, the justices aren’t elected by the public.
Instead, they’re nominated by the President and approved by the Senate.
Here’s how that process works:
Once a nominee is put forth, the Senate Judiciary Committee steps in and begins by investigating the nominee—think of it as a really thorough background check.
Once the investigation is complete, the Judiciary Committee holds a public hearing to question the nominee. This tradition only began in 1925. These hearings are basically a job interview for the nominee, but with a job this high-profile, tensions are high and questions can get heated.
After the hearing, the committee votes on the nominee and sends a recommendation to the full Senate.
Finally, the full Senate votes to confirm or deny the nomination. While just a 51-vote majority is needed, there used to be a possibility that a minority of senators could try to block a vote by engaging in what’s known as a filibuster.
That rule was changed in 2013, when Senate Democrats, led by then-Majority Leader Harry Reid (D-NV), implemented the nuclear option to prevent Republicans from filibustering then-President Obama's nominations to the United States Court of Appeals for the District of Columbia Circuit
At the time, then-Senate Minority Leader Mitch McConnell (R-KY) said, "You'll regret this, and you may regret this a lot sooner than you think."
Sure enough, after becoming Majority Leaeder, Sen. McConnell utilized the nuclear option in 2017 in the battle to confirm Trump's first Supreme Court nominee, Justice Neil Gorsuch.
This whole process usually takes two to three months, but can be delayed or sped up by partisan politics, especially when a vacancy arises during a Presidential election year.
A new justice can shift the ideological balance of the court, especially on contentious topics such as healthcare, reproductive rights, and LGBTQ rights. With issues like these at stake, it’s no surprise that both parties want to tip the scale in their favor.
The Supreme Court has no term limits, although some lawmakers are pushing to change that.
And although justices can’t be fired, like the President, they can be impeached and removed by Congress.
That has happened only once before. Justice Samuel Chase was impeached by the House back in 1804, but acquitted by the Senate.
Adding a Supreme Court justice, however, is much more common than removing one. The first Supreme Court, established in 1789, had only six justices.
Since the Constitution doesn’t stipulate how many members of the Supreme Court there should be, it was left up to Congress to decide. For decades, Congress added and subtracted justices. Finally, the nine-justice court was established in 1869.
That number is still subject to change, and has now become a controversial issue in the presidential campaign. President Trump and Vice President Mike Pence have speculated that, if elected, Democratic presidential nominee Joe Biden would seek to add justices to the Court in an effort to regain a liberal majority – a strategy known as “packing the court.”
In an Oct. 13 interview, Biden said that he is "not a fan of court-packing."
Today, all nine justices have the chance to make their voices heard by writing an opinion. It’s a document that explains not only what the court thinks, but why.
When the Supreme Court rules on a case, the majority writes an opinion explaining how they arrived at the ruling. Justices who disagree with the ruling can write a “dissenting opinion” which explains why they disagree.
The complexities of interpreting a more than 200-year-old document in the modern era leaves plenty of room for disagreement, even among justices who share similar viewpoints. Sometimes, justices who arrive at the same conclusion may take different paths to get there. In those cases, they may write a “concurring opinion” explaining their thoughts.
All these opinions are crucial. Not only do they give us a better understanding of the court’s decision, they are also important tools for future justices who will use them to inform their own rulings. Who those justices are and how they view their duty to uphold the Constitution will shape the nation for generations to come.