# The effect a Ginsburg vacancy would have on the 2020 election
**URL:** https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118
**Category:** Politics & Elections
**Created:** [May 17, 2019, 2:52pm UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118 "2019-05-17T14:52:42Z")
**Posts on this page:** 19
**Page:** 2
### Author:  [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)
#### Post date: [May 23, 2019, 5:17pm UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/21 "2019-05-23T17:17:57Z")
> [@HMS\_Irruncible](#):
>
> Conservatives have been trying to pack and politicize the court for years in an attempt to overturn various culture-war decisions, the biggest of which is\* Roe v. Wade\*.
>
> The necessary first step is chucking out _stare decisis_ , which the conservative majority just did with [_Nevada vs Hall_](https://www.washingtonpost.com/politics/courts_law/supreme-courts-conservatives-overturn-precedent-as-liberals-ask-which-cases-the-court-will-overrule-next/2019/05/13/b4d3c4f8-7595-11e9-bd25-c989555e7766_story.html?utm_term=.61a0ee6417c0).
>
> Now that all 5 conservative majority have signalled they don’t give a shit about _stare decisis_, what would stop them from overturning _Brown_? That they’re totally nice trustworthy guys?
How much respect do you think the liberal justices have for the _Heller_ precedent?
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### Author:  [@Ashtura](https://boards.straightdope.com/u/Ashtura)
#### Post date: [May 23, 2019, 5:19pm UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/22 "2019-05-23T17:19:06Z")
> [@HMS\_Irruncible](#):
>
> Now that all 5 conservative majority have signalled they don’t give a shit about _stare decisis_, what would stop them from overturning _Brown_? That they’re totally nice trustworthy guys?
Well, the assumption there is that they are a bunch of political hacks, is it not? Even political hacks would not want to commit political suicide. Which would happen if they overturned Brown. If you think otherwise, I’m sorry, you’re delusional. The average Republican does not want that. That’s absurd.
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### Author:  [@HMS\_Irruncible](https://boards.straightdope.com/u/HMS_Irruncible)
#### Post date: [May 23, 2019, 7:17pm UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/23 "2019-05-23T19:17:44Z")
> [@HurricaneDitka](#):
>
> How much respect do you think the liberal justices have for the _Heller_ precedent?
I don’t know. What do you think, and why?
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### Author:  [@Bone](https://boards.straightdope.com/u/Bone)
#### Post date: [May 23, 2019, 7:21pm UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/24 "2019-05-23T19:21:18Z")
> [@Kolak\_of\_Twilo](#):
>
> As I said, I believe continued appointments to the Court by this President will definitely result in Lawrence, Obergefell and Roe being overturned. Their is already a 5 justice majority that has shown they have no respect for stare decisis.
> [@HMS\_Irruncible](#):
>
> The necessary first step is chucking out _stare decisis_ , which the conservative majority just did with [_Nevada vs Hall_](https://www.washingtonpost.com/politics/courts_law/supreme-courts-conservatives-overturn-precedent-as-liberals-ask-which-cases-the-court-will-overrule-next/2019/05/13/b4d3c4f8-7595-11e9-bd25-c989555e7766_story.html?utm_term=.61a0ee6417c0).
Do you really believe that the 5 who voted together in _Nevada_ don’t have respect for _stare decisis_? Can you recite what the standard is for overturning past precedent? These conclusions seem pretty hyperbolic to me. I’ll grant that Thomas has never been a fan of stare decisis, but overturning one previous holding in no way indicates a lack of respect for or a chucking of stare decisis. Overturning past precedent is not frequent, but it has happened regularly in the history of the court.
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### Author:  [@HMS\_Irruncible](https://boards.straightdope.com/u/HMS_Irruncible)
#### Post date: [May 23, 2019, 7:22pm UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/25 "2019-05-23T19:22:06Z")
> [@Ashtura](#):
>
> Well, the assumption there is that they are a bunch of political hacks, is it not? Even political hacks would not want to commit political suicide. Which would happen if they overturned Brown. If you think otherwise, I’m sorry, you’re delusional.
You don’t seem to understand that nothing is political suicide to a body that has lifetime appointments. They are effectively untouchable.
> [@](#):
>
> The average Republican does not want that. That’s absurd.
It’s been my observation that average Republicans may not actively want extreme things. But as soon a Republican politician presents them with an extreme choice that benefits them, they cheerfully vote “yes” and move on with their lives.
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### Author:  [@HMS\_Irruncible](https://boards.straightdope.com/u/HMS_Irruncible)
#### Post date: [May 23, 2019, 7:32pm UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/26 "2019-05-23T19:32:22Z")
> [@Bone](#):
>
> Do you really believe that the 5 who voted together in _Nevada_ don’t have respect for _stare decisis_? Can you recite what the standard is for overturning past precedent?
As you likely know this is based on a large volume of legal opinion that won’t fit here. Summarized, the bar is when doing so would cause the ruling to violate the constitution, or when there are extraordinary circumstances. I don’t see anything in the majority opinion explaining that they saw constitutional issues at stake, or that they believed extraordinary circumstances justified the overturn.
> [@](#):
>
> These conclusions seem pretty hyperbolic to me. I’ll grant that Thomas has never been a fan of stare decisis, but overturning one previous holding in no way indicates a lack of respect for or a chucking of stare decisis.
It’s hyperbolic in that legal principles are not simply “chucked”, but rather eroded by being casually ignored. Thomas stated in effect “we think the earlier ruling was in error, so we’re not bound by it”. The majority went with it. This will be their precedent when conservatives go for bigger game like Roe v. Wade and I don’t think it’s an accident.
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### Author:  [@Bone](https://boards.straightdope.com/u/Bone)
#### Post date: [May 23, 2019, 7:53pm UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/27 "2019-05-23T19:53:19Z")
> [@HMS\_Irruncible](#):
>
> As you likely know this is based on a large volume of legal opinion that won’t fit here. Summarized, the bar is when doing so would cause the ruling to violate the constitution, or when there are extraordinary circumstances. I don’t see anything in the majority opinion explaining that they saw constitutional issues at stake, or that they believed extraordinary circumstances justified the overturn.
I don’t think that captures the actual calculus. This is a [decent article on the precedent about precedent aspect:](https://fas.org/sgp/crs/misc/R45319.pdf)
> [@](#):
>
> Consequently,when deciding whether to overrule a precedent interpreting the Constitution, the Court has historically considered several“prudential and pragmatic” factors that seek to foster the rule of law while balancing the costs and benefits to society of
> reaffirming or overruling a prior holding:
>
> **Quality of Reasoning.** When determining whether to reaffirm or overrule a prior decision, the Supreme Court may consider
> the quality of the decision’s reasoning.
> **Workability**. Another factor that the Supreme Court may consider when determining whether to overrule a precedent is
> whether the precedent’s rules or standards are too difficult for lower federal courts or other interpreters to apply and are thus
> “unworkable.”
> **Inconsistency with Related Decisions**. A third factor the Supreme Court may consider is whether the precedent departs from
> the Court’s other decisions on similar constitutional questions, either because the precedent’s reasoning has been eroded by
> later decisions or because the precedent is a recent outlier when compared to other decisions.
> **Changed Understanding of Relevant Facts.** The Supreme Court has also indicated that changes in how the Justices and
> society understand a decision’s underlying facts may undermine a precedent’s authoritativeness, leading the Court to overrule
> it.
> **Reliance**. Finally, the Supreme Court may consider whether it should retain a precedent, even if flawed, because overruling
> the decision would injure individuals, companies, or organizations; society as a whole; or legislative, executive, or judicial
> branch officers, who had relied on the decision.
There’s a lot more than, we think that was wrong so nyah nyah. [The opinion did explain the basis for overruling Hall:](https://casetext.com/case/franchise-tax-bd-of-cal-v-hyatt-6)
> [@](#):
>
> With the historical record and precedent against him, Hyatt defends Hall on the basis of stare decisis. But stare decisis is “‘not an inexorable command,’” Pearson v. Callahan, 555 U. S. 223, 233 (2009), and we have held that it is “at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment,” Agostini v. Felton, 521 U. S. 203, 235 (1997). The Court’s precedents identify a number of factors to consider, four of which warrant mention here: the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision. See Janus v. State, County, and Municipal Employees, 585 U. S. \_\_\_, _ **-** _ (2018) (slip op., at 34-35); United States v. Gaudin, 515 U. S. 506, 521 (1995).
>
> The first three factors support our decision to overrule Hall. We have already explained that Hall failed to account for the historical understanding of state sovereign immunity and that it failed to consider how the deprivation of traditional diplomatic tools reordered the States’ relationships with one another. We have also demonstrated that Hall stands as an outlier in our sovereign-immunity jurisprudence, particularly when compared to more recent decisions.
Anyways, I think a Ginsburg vacancy would energize voters and increase overall turnout.
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### Author:  [@HMS\_Irruncible](https://boards.straightdope.com/u/HMS_Irruncible)
#### Post date: [May 23, 2019, 8:06pm UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/28 "2019-05-23T20:06:13Z")
> [@Bone](#):
>
> [The opinion did explain the basis for overruling Hall:](https://casetext.com/case/franchise-tax-bd-of-cal-v-hyatt-6)
They listed 4 factors for their decision. It seems like their first 2 rationales don’t really speak to the first 2 factors. The third factor might weakly be true and they didn’t address the 4th factor at all.
So their overall reasoning seems very dodgy and not meeting the bar of extraordinary circumstances. I am not a judge so my legal doesn’t matter much. However, I think this indisputably tips the scale toward, not away, from more aggressive challenges to _stare decisis_.
> [@](#):
>
> Anyways, I think a Ginsburg vacancy would energize voters and increase overall turnout.
Agreed on that, but I think it would selectively energize Trump-weary Republicans who would otherwise stay home.
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### Author:  [@Velocity](https://boards.straightdope.com/u/Velocity)
#### Post date: [May 23, 2019, 8:20pm UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/29 "2019-05-23T20:20:52Z")
> [@HMS\_Irruncible](#):
>
> Agreed on that, but I think it would selectively energize Trump-weary Republicans who would otherwise stay home.
This. A Supreme Court vacancy is one of the few - perhaps only - things that gets Never-Trump conservatives to temporarily support Trump.
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### Author:  [@SlackerInc](https://boards.straightdope.com/u/SlackerInc)
#### Post date: [May 23, 2019, 9:36pm UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/30 "2019-05-23T21:36:37Z")
> [@Bijou\_Drains](#):
>
> He meant to say you cannot confirm in the last year of a Democratic president.
LOL, right.
> [@Ashtura](#):
>
> Well, the assumption there is that they are a bunch of political hacks, is it not? Even political hacks would not want to commit political suicide. Which would happen if they overturned Brown. If you think otherwise, I’m sorry, you’re delusional. The average Republican does not want that. That’s absurd.
Agreed. As Mr. Dooley said, “the Supreme Court follows the election returns”. And if they don’t? If they are really so stubborn and ideological as to ignore that? Let them overturn \*Brown \*and _Roe_. I would dance a happy dance, because that would serve up a massive blue wave on a silver platter.
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### Author:  [@Velocity](https://boards.straightdope.com/u/Velocity)
#### Post date: [May 24, 2019, 3:44pm UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/31 "2019-05-24T15:44:38Z")
> [@SlackerInc](#):
>
> Let them overturn \*Brown \*and _Roe_. I would dance a happy dance, because that would serve up a massive blue wave on a silver platter.
Is it really worth the trade-off?
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### Author:  [@asahi](https://boards.straightdope.com/u/asahi)
#### Post date: [May 24, 2019, 4:02pm UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/32 "2019-05-24T16:02:53Z")
Simply reversing Roe v Wade might not necessarily serve up a blue wave. If Red states were to have more reasonable anti-abortionlaws except rape, incest, or potential danger to the mother’s health, I doubt it would change that much. But the extremes to which conservatives have gone the last several weeks ought to be a red flag, not only for women but to anyone who doesn’t want to live in a Taliban-style state.
Unfortunately, though, I don’t think most people are paying attention. People write it off as hyperbole or news that doesn’t really apply to them. That’s one reason why I believe we’re ripe for an authoritarian takeover. It’s not Trump that worries me; it’s the millions of people who every day, every year have said that they’re okay with authoritarianism, or that they don’t care enough to stop it.
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### Author:  [@Bijou\_Drains](https://boards.straightdope.com/u/Bijou_Drains)
#### Post date: [May 24, 2019, 5:42pm UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/33 "2019-05-24T17:42:12Z")
> [@Velocity](#):
>
> This. A Supreme Court vacancy is one of the few - perhaps only - things that gets Never-Trump conservatives to temporarily support Trump.
not all of the never Trump people are going to back his Supreme court picks. That’s not to say they want a liberal on the court but they may not favor his picks.
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### Author:  [@SlackerInc](https://boards.straightdope.com/u/SlackerInc)
#### Post date: [May 25, 2019, 6:03am UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/34 "2019-05-25T06:03:21Z")
> [@Velocity](#):
>
> Is it really worth the trade-off?
Sure. It’s not like overturning those decisions would instantly put us back in the status we had in 1950 or 1970, as the case may be. Nothing would change in most states, and TBH in the states where it would change, maybe decent people need a wakeup call that those places are hellholes they should move out of.
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### Author:  [@Bijou\_Drains](https://boards.straightdope.com/u/Bijou_Drains)
#### Post date: [May 29, 2019, 12:54am UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/35 "2019-05-29T00:54:00Z")
In a very shocking move, McConnell says that he will fill a SC vacancy in the 2020 election year.
I cannot believe this would happen!!
> **[In reversal from 2016, McConnell says he would fill a potential Supreme Court...](https://www.cnn.com/2019/05/28/politics/mitch-mcconnell-supreme-court-2020/index.html)**
>
> Senate Majority Leader Mitch McConnell said Tuesday if a Supreme Court vacancy occurs during next year's presidential election, he would work to confirm a nominee appointed by President Donald Trump.
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### Author:  [@SlackerInc](https://boards.straightdope.com/u/SlackerInc)
#### Post date: [May 29, 2019, 5:57am UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/36 "2019-05-29T05:57:20Z")
Shocker.
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### Author:  [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)
#### Post date: [May 29, 2019, 12:05pm UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/37 "2019-05-29T12:05:31Z")
> [@Bijou\_Drains](#):
>
> In a very shocking move, McConnell says that he will fill a SC vacancy in the 2020 election year.
>
> I cannot believe this would happen!!
>
> [https://www.cnn.com/2019/05/28/politics/mitch-mcconnell-supreme-court-2020/index.html](https://www.cnn.com/2019/05/28/politics/mitch-mcconnell-supreme-court-2020/index.html)
What a surprise. The hypocritical little dick acts like a hypocritical little dick. When the great American experiment in democracy dies, McConnell’s fingerprints will be on the knife.
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### Author:  [@bobot](https://boards.straightdope.com/u/bobot)
#### Post date: [May 29, 2019, 12:25pm UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/38 "2019-05-29T12:25:28Z")
> [@Bijou\_Drains](#):
>
> In a very shocking move, McConnell says that he will fill a SC vacancy in the 2020 election year.
>
> I cannot believe this would happen!!
>
> [https://www.cnn.com/2019/05/28/politics/mitch-mcconnell-supreme-court-2020/index.html](https://www.cnn.com/2019/05/28/politics/mitch-mcconnell-supreme-court-2020/index.html)
How typically Republican: He doesn’t actually believe the things he claimed to believe.
To say that Republicans have no shame is an understatement.
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### Author:  [@not\_what\_you\_d\_expect](https://boards.straightdope.com/u/not_what_you_d_expect)
#### Post date: [May 29, 2019, 12:31pm UTC](https://boards.straightdope.com/t/the-effect-a-ginsburg-vacancy-would-have-on-the-2020-election/834118/39 "2019-05-29T12:31:22Z")
McConnell, he’s so fucking smug and I can’t stand him. The laughing crowd is no better.
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