WTF is going on with the US Supreme Court and Ruth Bader Ginsburg?

[Thread]

This is a beginner-level thread, but I wanted to explain enough to give beginners a more confident understanding of what’s going on here. It’s not going to be *super* long, but this is not going to be a five-tweet thread.

First, a quick vocabulary lesson —

SCOTUS = Supreme Court of the United States. The judiciary is one of the three branches of the US government, and SCOTUS is its highest court.

RBG = Ruth Bader Ginsburg. Recently deceased SCOTUS Justice.

Con law = constitutional law

Some SCOTUS background — it was established by Article III of the US Constitution, and has had 9 members (a Chief Justice and 8 Associate Justices) since 1869. The members are given lifetime appointments, meaning they serve until retirement/resignation or death.

Like we’ve seen with the president recently, they can be impeached by the US House of Representatives and convicted in the US Senate. This basically never happens. Only one SCOTUS Justice, Samuel Chase, has been successfully impeached (in 1805), and he was acquitted.

SCOTUS decisions are sometimes unanimous, sometimes not. Those that aren't are decided by majority. This can get complicated: there can be concurrences, which agree with the end result of the majority ruling but use different reasoning to get there.

Sometimes people agree in part, but not entirely. What’s important is that the law of land requires a majority: five of nine votes (this can be in bits and pieces due to partial dissents).

The people who disagree write dissents to explain their reasoning. Sometimes these dissents become really important later in time, if past precedent is overturned in a later case.

Now, as someone who studied con law academically, I must admit take some issue with simplistic left/right breakdowns of the court, because judicial philosophy is more complex than that (I can get into that at a later point, if anyone is interested in that).

To break this down, though, I will put it like this: some rulings are contentious enough to split 5-4. When 5-4 splits happen, they are *usually* (not always — remember how I said judicial philosophy can be more complex than that) along left/right ideological lines.

For a while now, when the court has been full, there have been four generally reliable people to the left (not all equally so), four more to the right (not all equally so, and reliability varies), and one who generally leans more conservative, but can switch sides.

We call that person the swing vote/Justice. The level of conservatism of the swing vote has increased over the past 15 years with retirements being replaced by Republican presidents appointing more conservative replacements.

This went Sandra Day O’Connor, to Anthony Kennedy (a primarily reliable conservative vote, but became the most liberal of the conservatives when O’Connor retired in 2006), to current Chief Justice John Roberts

(more reliably conservative than Kennedy, but now, generally the most liberal of the conservatives when Kennedy retired in 2018).

From 2010 until yesterday, the reliable four liberals in 5-4 splits were, in reverse order of length of tenure, Elena Kagan, Sonia Sotomayor Stephen Breyer, and RBG.

For 5-4 splits where the left won out, generally speaking, there would be those four liberals, and then usually Kennedy up until 2018 (with some notable exceptions) and Roberts up until now (again, not exclusive).

With RBG’s passing, there are only three generally reliable people to be on the left side of what would previously be a 5-4.

This is a huge problem. The power of the American presidency has grown enormously over the past several decades, making the current administration and GOP control of the Senate (and, from 2017-2019, the House of Representatives, too) particularly dangerous.

(Yes, it is also an indication of many things seriously wrong with this country, but that’s not the point of this thread)