Supreme Court Justice Ruth Bader Ginsburg, who long stood for women’s rights issues and became the court’s second female justice, died Friday, Sept. 18 at her home in Washington, D.C. Her death has left questions about what will happen with the future of the high court, especially with the election just months away.
The National Law Journal’s Marcia Coyle and PBS NewsHour’s John Yang discussed how issues such as abortion and health care could be affected now that Ginsburg is no longer on the court, as well as the late justice’s devotion to motherhood and her career, and her seemingly unlikely friendship with the late Justice Antonin Scalia.
Watch the full conversation in the live player above.
With Ginsburg gone, are abortion rights at risk?
Coyle said that anti-abortion activists are likely to target two rulings that cemented abortion rights in the U.S.: Roe v. Wade, the 1973 decision that legalized the right to an abortion nationwide, and Planned Parenthood v. Casey, which ruled in 1992 that states cannot place an “undue burden” on women seeking abortions.
In the wake of Ginsburg’s death, Coyle said she believed the court “is more likely to continue to cut back on the abortion right, than to suddenly overturn everything.” They could do this by focusing on state laws currently in the lower courts that make it more difficult for women to have an abortion, such as ultrasound requirements, or restrictions on medicine-induced abortions.
Still, Coyle said, “I think that the abortion right is very much in danger if there’s a sixth conservative justice.” She noted that if another solidly conservative justice is appointed, Chief Justice John Roberts’ role as the less conservative, median justice will be diminished.
What’s next for arguments on the Affordable Care Act?
The Supreme Court is expected to hear a major challenge to the Affordable Care Act shortly after the election. The case, led by the Trump administration and a group of Republican state attorneys general, could overturn the Obama-era health care plan.
The case hinges on a decision by Congress in 2017 to eliminate financial penalties associated with the ACA’s individual mandate, which requires most Americans to enroll in health insurance. The plaintiffs argue that the ACA is unconstitutional because it no longer contains the individual mandate.
Coyle said she expected the Supreme Court to hear arguments in the case, even if a new justice has not yet been appointed, which could result in a 4-4 tie vote.
“If there’s a sense that it would be a tie vote, then they can either go forward with a tie vote, which just leaves the lower courts’ opinion in place,” Coyle said, or reschedule arguments for the next term. In the past, lower courts have ruled in favor of plaintiffs’ arguments that the ACA is invalid.
“I think they will go forward with the arguments,” she said, adding that the balance of the court was less likely to result in a 4-4 tie this term than in previous terms, given there are five conservative-leaning justices and only three liberal-leaning justices.
How Ginsburg balanced motherhood with her law career
Ginsburg was one of only nine women in her class at Harvard Law, and spent her final year at Columbia after moving to New York City for her husband, Marty’s, job. While in law school, Ginsburg also cared for her daughter, Jane, and did much of her studying late at night after she had gone to bed.
“She talked about motherhood as a respite from her other life, which was law. And law was a respite from motherhood,” Coyle said, adding that Ginsburg credited her success to being challenged to strike this balance between work and family.
Though she graduated first in her class, Ginsburg could not get a job in the male-dominated field of law at the time, and went into teaching, first at Rutgers University and then at Columbia Law School. She became the first tenured law professor at Columbia and eventually worked her way to the ACLU, where she worked on sex discrimination cases.
Coyle recalled Ginsburg’s response when she was once asked if women could have it all : “You can’t have it all at once,” Ginsburg said, but added, “over my life span, I think I have had it all.”
On Ginsburg’s friendship with her Antonin Scalia
Though he was her ideological opposite in many ways, Ginsburg shared a deep friendship with the late Supreme Court Justice Antonin Scalia, who died in 2016.
“She said that he made her laugh, and he said that she made him a better justice,” Coyle said, noting that Scalia would give his draft majority opinions to Ginsburg to read first because “she challenged him to be better.”
Coyle said the two justices had very different approaches to interpreting the Constitution — Scalia was an originalist and a textualist, whereas Ginsburg sought to apply the language of the Constitution to the conditions of the country today. Nevertheless, they shared a love of opera, and their families spent holidays like New Years Eve together.
“I know from things she has said since his death that it was to her great dismay and sadness that the confirmation process for Supreme Court justices has become so partisan, and so ugly, in many ways,” Coyle said.
This piece has been updated to clarify the Supreme Court’s likely actions on abortion rights.