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What Does Ruth Bader Ginsburg's Death Mean For The Court?


Supreme Court Justice Ruth Bader Ginsburg died today at age 87. The cause was complications from pancreatic cancer. Joining us now is NPR legal affairs correspondent Nina Totenberg with the latest news.

And, Nina, can you give us a sense of what this could mean going forward?

NINA TOTENBERG, BYLINE: Well, her death will have profound consequences for the court both inside and outside. Not only is the leader of the liberal wing of the court gone. But with the court about to open a new term, Chief Justice John Roberts no longer holds the controlling vote in closely contested cases that may split the court along liberal-conservative lines. And this is something that Ginsburg definitely had thought a lot about. And just days before her death, she dictated this statement to her granddaughter Clara Spera. My most fervent wish is that I will not be replaced until a new president is installed.

Now, normally, you might expect that to happen. But Mitch McConnell, the Republican leader of the Senate, has made clear that if there was a vacancy on the court, whether it came before the election or after the election, he would - the Republicans would fill it with a - somebody nominated by President Trump. And in the Senate, the Republicans, in all likelihood, have the votes to confirm that individual, unless this gets to be politically untenable for a significant number of Republican senators. And that's unlikely to happen. So the bottom line here is that in very short order, in all likelihood, we will have a court that is 6-to-3 conservative-liberal and will remain that way for decades in all likelihood.

CORNISH: I want to step back for a moment and talk about her legacy. Can you give us a sense of the span of that?

TOTENBERG: Ruth Ginsburg quite simply changed the way the world is for American women. She - and she did that before she was even on the court. She led the fight - the legal fight for women's rights in the courts as a lawyer, winning five out of six arguments in the Supreme Court and dozens and dozens of other cases in the lower courts. And by the time she was through, after a decade of litigation, she had quite literally wrought a revolution. And those of us women in the world who have very equal rights today would not have had that without her. Hundreds of state and federal laws restricted what women could do and barred them from jobs, from rights, even from jury service. By the time she put on her judicial robes in 1980, however, as a court of appeals judge, as I said, she'd worked a revolution.

CORNISH: Can you talk about how this could affect the composition of the court? You mentioned the numbers earlier, but what does this mean for the splits people are always looking at?

TOTENBERG: Well, I don't know what the court is going to do in the short run. They have a lot of important cases, not the least of which is yet another Republican-brought challenge to the Affordable Care Act, otherwise known as Obamacare. And that's supposed to be heard the week after the election. And the last time there was this kind of frontal attack against Obamacare, Chief Justice Roberts cast the fifth vote to uphold the law. He will now be the fourth vote. And if they don't have the position filled by the time the court hears it, the court could be tied 4-4. They could put it off. They could schedule the case for re-argument. But it gives you a sense of the sort of sea change - ideological sea change that was already working in many areas of the law but had been somewhat held in check. And that is likely no longer to be the case. It's going to be a very, very conservative court if President Trump has his way and Mitch McConnell has his way.

CORNISH: And what are you going to be looking for going next?

TOTENBERG: Well, we'll see what Mitch McConnell says tomorrow, whether he's going to go forward with what he promised to do. You recall that he blocked President Obama's nominee to the Supreme Court after Justice Scalia died. And he blocked that nominee for 10 months. But - and he said that the people of the United States had a right to make their views known in the election. And the election elected President Trump, who promptly had two Supreme Court nominees. Well, I don't think that Mitch McConnell is going to have the same rule apply now. He's made it very clear that he will seek to fill this seat, and that's what I think we're in for.

CORNISH: That's NPR's legal affairs correspondent Nina Totenberg.

Thank you.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.