This piece was first published on Sept. 10. It has been updated to reflect the death of Supreme Court Justice Ruth Bader Ginsburg on Sept. 18.
Justice Ruth Bader Ginsburg died Friday, after a years-long battle with cancer. A pioneer for women’s equality, Ginsburg was known as a fierce protector of abortion rights, defending the precedent set in Roe v. Wade in many cases since she became the second woman to join the high court in 1993. As soon as the news broke, advocates on both sides of the abortion debate began asking the question: Without Ginsburg on the court, what happens to Roe v. Wade?
President Trump could now have an opportunity to appoint a third conservative Supreme Court justice. Ginsburg’s death comes less than two weeks after Trump released his latest shortlist of potential Supreme Court nominees. Three names in particular attracted attention: GOP Sens. Tom Cotton (Ark.), Josh Hawley (Mo.) and Ted Cruz (Tex.). The senators are conservative firebrands with national name recognition, standing out in a selection process that has traditionally considered only career jurists.
All are fervently antiabortion.
Twenty-four hours after he appeared on Trump’s shortlist, Cotton tweeted about Roe v. Wade.
With a Supreme Court that already leans to the right, another conservative appointment could be the death blow for Roe v. Wade, allowing states across the country to ban abortion, said Mary Ziegler, a professor at Florida State University College of Law who specializes in the legal history of reproduction and author of “After Roe: The Lost History of the Abortion Debate.” Even if Roe v. Wade itself is not overturned, she says, the court would likely allow regulations that would effectively make the procedure illegal in many states.
While many expected the court to rule against abortion rights after the appointments of Justices Brett M. Kavanaugh and Neil M. Gorsuch, both conservatives, Chief Justice John G. Roberts Jr. sided with the court’s liberal contingent, including Ginsburg, in the latest abortion case to reach the highest court, June Medical Services v. Gee, securing a major victory for abortion rights when the ruling was announced in June. The case overturned a Louisiana law that required abortion providers to have admitting privileges at local hospitals. The court’s rulings have not shifted farther left, Ziegler says, likely because Roberts wants to protect its nonpartisan reputation.
He may not be able to hold that line without Ginsburg on the court.
After Trump first released his shortlist, I spoke to Ziegler about how the Supreme Court could change in the coming months.
This interview has been edited for length and clarity.
Caroline Kitchener: What does it mean to lose Ruth Bader Ginsburg, in particular, on reproductive issues?
Mary Ziegler: RBG [was] one of the clearest liberal voices on the court, in terms of why abortion rights matter. There are justices on the court who are about adhering to your principles. ... They don’t necessarily try to get a majority. I would not put RBG in that category. She [was] a savvy strategist, not just throwing down the gauntlet for principle. Primarily she [was] the person on the court who [had] been clearest about what she sees as being the point of abortion rights. That would be significant, because if you’re going to have a more concerted attack on abortion rights within the court, having a counterpoint would be much easier with RBG on the court than without.
CK: If Trump appoints someone like Tom Cotton to the Supreme Court, what are the chances that the court overturns Roe?
MZ: Well, there is already a path to overturning Roe, as the court stands right now. Certainly if you add somebody else who is very conservative, it makes that more likely. We would expect someone like Tom Cotton to move much more aggressively on abortion rights than other [conservative] justices. While the court is viewed by many as a political institution, many of the justices don’t want it to be that way.
Tom Cotton has been a very vocal supporter of President Trump, and he is very pro-life. Cotton would be approaching the court not just as a career politician but as a career politician who has been decidedly unafraid of controversy. He likely wouldn’t think about abortion as something that needs a lot of extra consideration because of the precedent in place, as other justices do.
CK: How likely is it that the court will shift significantly to the right if Trump appoints another justice?
MZ: When we [thought] about what the court [was] likely to do on abortion [before Ruth Bader Ginsburg’s death], we [were] thinking primarily about what Justice John G. Roberts Jr. [was] likely to do. That’s an oversimplification, of course, but he [was] the perceived swing vote. If Ruth Bader Ginsburg is replaced by a conservative like Tom Cotton or Amy Coney Barrett, you would have a court likely to be much quicker to change the rules on abortion.
CK: A lot of people expected the court to immediately move toward overturning Roe after Kavanaugh and Gorsuch were appointed, but that doesn’t seem to have happened. Why not?
MZ: Last term would suggest that all the talk about Roberts’s concern for the court’s reputation — being seen as nonpartisan — has some truth to it. While he’s still moving the law in a conservative direction, he does seem to be constrained by his concerns about the court’s reputation and his own legacy. So it’s hard to imagine in the next year or two a big, splashy decision to overturn Roe v. Wade coming from a court with John G. Roberts Jr. at its center.
CK: If someone like Tom Cotton replaces Ruth Bader Ginsburg, who becomes the next swing vote?
MZ: Justice Brett Kavanaugh would be the most interesting person to watch there. He is a career jurist and very educated. As part of the legal elite, he’s been educated to care about precedent. It’s likely, given his background, that he does sincerely attach some value to precedent — if you are someone who has recently taught classes at Yale Law School, you’re not going to want to come across as a hack. You want to come across as a serious intellectual jurist. So there are personal reputational constraints.
He does seem to have more concern for optics and the court’s reputation than the other three conservatives [besides Roberts]. All that said, he did side with the conservatives in June Medical, so he is a lot more sanguine about the prospect of unraveling abortion rights quickly than Roberts seems to be.
CK: It seems possible that Trump, if reelected, would have the opportunity to appoint two new Supreme Court justices, replacing Ruth Bader Ginsburg and potentially Justice Stephen Breyer, who is 82. What happens to abortion rights in that scenario?
MZ: If there are two new conservative justices during Trump’s next term, then you really are getting into a territory where it’s hard to imagine the court not overtly overturning Roe relatively soon. That would probably mean allowing, but not requiring, the states to ban abortion.
With two new conservative justices, you’re talking about Justice Neil M. Gorsuch being the swing justice on abortion cases. And there just doesn’t seem to be a lot of suspense in terms of how that would go. We saw this term that Gorsuch will join his liberal colleagues in really unpredictable ways, [as he did in Bostock v. Clayton County, when he held that federal law outlaws discrimination against LGBT employees]. He’s a maverick who is going to do whatever he thinks. But on abortion, it doesn’t seem like his vote will be in question. His opinion in June Medical [which came down against the abortion clinics] hit a lot of pro-life talking points.
CK: Why do you think President Trump chose to put someone like Tom Cotton on his list of potential Supreme Court nominees?
MZ: I think that’s a direct response to recent criticism from Sen. Josh Hawley (R-Ark.). This summer a lot of conservatives were very angry at President Trump and at the Supreme Court, particularly after Gorsuch wrote the opinion in Bostock. There was also a lot of disappointment about the outcomes of the DACA [Deferred Action for Childhood Arrivals] ruling and June Medical. Social conservatives expected that the conservative legal movement would deliver results on things like abortion and gay rights. And then those things didn’t happen in the 2020 term. Sen. Hawley came out and said that if Trump really wants social conservatives to come out and vote for him, there needs to be some overhaul of the selection of Supreme Court nominees.
The prototypical nominees, the kinds of people Hawley was fed up with, are people like Kavanaugh and Roberts, who are likely to care about the court’s reputation — who see themselves as jurists and don’t want to come across as partisan. And obviously someone like Tom Cotton would probably not share those concerns.