This is not a drill. This is a judicial emergency. We are at DEFCON 1. These are not exaggerations.
If the reports are true that President Trump plans on nominating Judge Amy Coney Barrett to the Supreme Court on Saturday, we will be on the verge of the Supreme Court jolting to the right in a way that has very few precedents in its history. And, unlike some past Republican appointments to the high court, this one will come with a level of certainty that is almost unparalleled.
Stated differently, if Judge Barrett becomes Justice Barrett, one of the leading liberals on the Supreme Court, Ruth Bader Ginsburg, will be replaced with a staunch conservative who could take the Court to the far right on almost every issue. Even worse, given that she’s only 48, Judge Barrett is in position to do so for thirty to forty years (or more!).
Again, this is not an exaggeration. Why? Because unlike Trump’s previous two appointees, Justice Brett Kavanaugh or Justice Neil Gorsuch, Judge Barrett has a long track record telling us exactly what kind of Justice she is going to be on major issues of the day. And that track record means that she is going to tear down the legacy of the Justice she might replace, Ruth Bader Ginsburg.
On abortion, she will be a reliable vote to allow all sorts of abortion restrictions. Based on how she has voted in cases as a judge and how she has criticized Roe v. Wade and called abortion “always immoral,” there is no doubt that when the issue is squarely before her, she will be a resounding vote in favor of overturning Roe. With four Justices on the Court now who expressed serious skepticism (or worse) about Roe just this summer, she would provide the fifth vote to overturn the case and get rid of nationwide abortion rights in this country.
On healthcare, she will vote to overturn the Affordable Care Act and get rid of all its protections. She has already said that she did not agree with the Court’s upholding of the law in 2012. And with the law coming back to the court this November, if she is on the bench by the time it hears the case, it won’t matter that Chief Justice Roberts votes for the law because she will have four other conservatives joining her to strike it down.
On guns, she will vote to expand the rights of gun owners and limit the ability of states to restrict guns. She has already voted to allow felons to possess guns (dissenting in a case that upheld the restriction), so we know how she feels about the issue. The court has so far been reluctant to expand gun rights beyond basic ownership of a handgun, but with Justice Barrett seated, a fifth vote to allow for unfettered gun ownership is likely.
I could go on and on, but you get the gist of it — she will be a reliable vote for everything the rightwing of the modern-day Republican party demands and opposes: against LGBT rights, against the environment, against affirmative action, against workers and unions, for prosecutors, for religious exemptions to general laws, for corporations, and more. Yes, there is always the possibility of people moderating once they become a justice and providing surprise votes that go against the politics expected of them. But, with someone like Judge Barrett — who has been speaking loudly in favor of conservatism for many years and ruling from the bench in a conservative manner for the past three — the likelihood of her disappointing her party is almost nil.
The bottom line here: She is the far right of the Republican party’s dream pick, and the biggest nightmare possible for moderates and the left.
To fully understand what she would do to the Court and what her appointment to replace Justice Ginsburg means, we have to go back to 1991. That year, Thurgood Marshall retired from his position on the Supreme Court. For 24 years, he was one of the leading liberals on the Court, consistently ruling to end race and sex discrimination, to protect people from an overbearing criminal justice system, and to use the tools of government to help people rather than corporations. He served on the Court after a storied career with the NAACP Legal Defense and Education Fund, where he was one of the lead litigators in Brown v. Board of Education and other cases to desegregate the Jim Crow south.
Upon Marshall’s retirement, President George Bush I replaced him with Clarence Thomas, a 43-year old who had served just one year as a judge on an intermediate federal appellate court. Thomas has gone on to be one of the most reliable and most conservative votes in Supreme Court history. He has voted to reverse almost everything Justice Marshall worked for in his entire career, as a lawyer and as a judge. And, given that he just turned 72 this summer, Justice Thomas could serve for another decade or two.
In other words, the appointment of Thomas shifted the Court to the right by replacing one of the most outspoken and accomplished liberals in the court’s history with one of the most stalwart and unwavering conservatives in the court’s history.
History is repeating itself with the Barrett pick, as we could see almost the same exact thing happen with the replacement of Justice Ruth Bader Ginsburg. If Barrett’s nomination is successful, the parallel with the Marshall-to-Thomas switch will be strikingly undeniable: Barrett will shift the Court dramatically to the right and destroy everything RBG worked for during her entire career. And given her youth, she will have decades to wreak havoc on Ginsburg’s legacy.
This is exactly what those of us who watch the Supreme Court closely warned everyone about in 2016. We said that if President Trump was elected, he could shift the Court to the right in a way that will last generations. Given a combination of thievery, luck, and aging, President Trump now has his third Supreme Court Justice appointment. He has nominated three young conservatives to the Court. And with Judge Barrett, he has nominated the most certain and most conservative of the bunch.
For anyone who cares about RBG’s legacy — and about the future of the people she spent her life protecting — this is truly terrifying.
Cohen is a professor of law at the Drexel University Thomas R. Kline School of Law.