Morgan Marietta is Associate Professor of Political Science at the University of Massachusetts Lowell, USA. He is the co-editor of the SCOTUS Decisions series alongside David Klein.

The first book in their series, SCOTUS 2018, will be released Spring 2019.

Happy Birthday to Ruth Bader Ginsburg, who turns 86 this Ides of March. Rarely has the health of one Justice meant so much to so many. Her iconic status is a departure from how the public has perceived the Court’s distant personalities in the past. But so many things are different in the age of Trump. The nation is more polarized, Congress is more stunted, and the Court is more powerful because we turn to it for answers when our electoral democracy is faltering. The Court is also shifting in its beliefs with the departure of Justice Anthony Kennedy and the arrival of Justices Neil Gorsuch and Brett Kavanaugh. Understanding what this means for the law of the Constitution and the future of rights is not easy, but it is deeply connected to why RBG’s birthday is noted by so many.

At 86, RBG is five years away from being the oldest serving Justice (Oliver Wendell Holmes retired at 90). She has a pop-culture nickname (the Notorious RBG), an impersonation on SNL, and two films about her. Why is the most diminutive Justice overshadowing the rest of the bench? (Kagan was the first woman to serve as Dean of Harvard Law but has no movies; Chief Justice Roberts is becoming the key vote but has no popular following; even Kennedy had no nickname.) Part of it is the #MeToo Movement and RBG’s place in the history of women’s rights, both when she was arguing to the Court as the Director of the ACLU’s Women’s Rights Project and later hearing cases as a Justice. Her most significant ruling allowed women into the tradition-bound Virginia Military Institute (VMI). More importantly, it finally established the principle that gender cannot serve as a basis for restrictive distinctions under the law. In my classes on the Court, I sometimes ask when women were recognized as full persons under the Constitution. Most students guess it was far earlier, but the answer is 1996 in U.S. v. Virginia.

But that alone does not explain her status. The crux of it is that all of the Justices have become more powerful as the role of the Court has grown. But now the Court is shifting balance toward a different view of the nature of rights. From a Court with an even balance of judicial liberals and conservatives (with Justice Kennedy in the middle), we now have a 5-4 conservative majority. But not all of the conservatives are the same. Some will push faster and further, with the reigns held by Chief Justice John Roberts. Hence a slim majority and a clear majority may sound similar but in practice are quite different. At 5-4, Roberts will often side with the liberal Justices (as he did recently in granting a stay of the Louisiana abortion restrictions, against the votes of the four conservatives). At 6-3, Robert’s participation is no longer needed. If RBG leaves the bench while a Republican President and Senate control her replacement, the Court will shift to a dominant majority of conservatives. The new Supreme Court of youthful originalists will last for a generation and re-write our understanding of the nature of rights. 

Last year, the Court allowed for greater presidential power over U.S. borders and immigration, provided greater protection for religious belief as a basis for denying service to LGBT citizens, recognized the right of public sector employees to not pay fees to unions they do not wish to support, and allowed states to purge voter rolls of infrequent voters. Ginsburg was opposed to all of these decisions, three of which were decided five votes to four. If Trump outlasts Ginsburg, future decisions will be six to three. Perhaps as importantly, the originalist block will control the agenda of the cases the Court hears, allowing decisions on a much broader range of constitutional questions.

Such a shift in the Court will likely mean that the recognition of new rights will cease, while gun rights and rights to freedom of religious exercise will be recognized more broadly. The power of Congress to enact regulation under the Interstate Commerce Clause will contract and the separation of powers will be enforced against bureaucracies, meaning that executive branch agencies will be less empowered to enforce regulations. Affirmative action will face greater scrutiny and limitation. The executive branch will be allowed greater deference to act on perceived threats to security. These possible changes in our law and each recurring Ides of March are deeply interconnected.

The actions of the Supreme Court are often seen as above and beyond citizen politics, but I disagree. Like the Constitution itself, their decisions are meant to be read and understood by ordinary citizens. In the past, presidential campaigns were not moved by constitutional politics. But the nominations to the Court have become a central issue that motivate many voters who see their ramifications. In my view, the language of the Constitution and the competing conceptions of rights being fought out at the Supreme Court should be an ordinary part of our political discussion. And the makeup and direction of the Court should be a clear political motivator. For this reason, several days on the upcoming calendar are worth noting: 15 March, the second Tuesday in November, and my personal favorite, 17 September (Constitution Day).