Monday 28 September 2020 6:00 am

The Supreme Court fight is a policy revolution, lying on top of surprising US political stability

Dr John C. Hulsman is senior columnist at City A.M., a life member of the Council on Foreign Relations, and president of John C. Hulsman Enterprises. He can be reached for corporate speaking and private briefings at

On its face, the events surrounding the 2020 American election seem too far-fetched even for the most preposterous Netflix series. 

We have had a pandemic of biblical proportions, riots in the streets, two fascinating (if deeply-flawed) protagonists, and a polarised, volatile electorate lurching from the populist left to the populist right, and no doubt back again. 

And then, just as the contest is nearing its climax, Justice Ruth Bader Ginsburg — long the left-leaning bulwark of the Supreme Court — startlingly died, and all hell broke loose. 

But keep in mind beneath all this sound and fury, the presidential race has been remarkably stable, with the dramatic court fight highly unlikely to change the basic political calculation. 

Read more: US Supreme Court judge Ruth Bader Ginsburg dies of cancer aged 87

Last week’s Real Clear Politics aggregate of polls showed Biden in front nationally 50-43 per cent, and ahead in the crucial battleground states by a lesser 49-45 per cent. These numbers have hardly budged all year. 

Clearly you would rather run Biden’s campaign than Trump’s just now, but things are far from over. Despite all the seeming chaos, this has been the basic state of play in the election for the better part of this year. 

This is not to say that the Ginsburg replacement is not vital in policy terms for the court’s general direction over the next generation. If President Trump and Republican Senate Majority Leader Mitch McConnell succeed in filling the seat with a convinced conservative, the court will swing to a decisive 6-3 conservative majority, potentially shaping much of American life for the coming generation. 

Supreme Court Justices are appointed for life, so this in-built conservative majority would have a massive say over workers’ rights, civil and women’s rights, the constitutionality of Obama’s Health Care law, abortion rights, environmental regulations, immigration issues, and tax regimes. It is easy to see why this unexpected court battle is being played for the highest stakes. 

Read more: Counting down to the US election

At present, it looks as though Trump and McConnell have the votes in the Senate to quickly push their nomination through. Republicans enjoy a 53-47 seat advantage there, meaning they can lose three of their senators and still prevail, as Vice President Pence, serving in his usually titular constitutional role as President of the Senate, can be counted on to vote with the majority party. 

So far only two Republican Senators, moderates Susan Collins of Maine and Lisa Murkowski of Alaska, have publicly announced their intention to defect. 

Most of the other Republican mavericks known for defecting from the Trump fold, such as Senator Mitt Romney of Utah, have stayed within McConnell’s ranks. So this momentous policy sea change seems likely to happen. 

As for the presidential election, the dramatic infusion of the nomination fight into the contest seems a wash to me. Trump and his supporters are surely happy to change the general conversation away from his publicly panned handling of the coronavirus, even as support for a third conservative court nominee in Trump’s four years will excite his evangelical, conservative base. 

Likewise, the Biden camp has used the super-charged atmosphere to raise yet more campaign money, and highlight the general conservative threat to US progressives. 

But, frankly, the electoral impact of the nomination seems over-blown. According to detailed polling by Pew Research, Supreme Court nominations were already “very important” to 70 per cent of Republicans in 2016, and a still impressive 61 per cent now. Likewise, 62 per cent of Democrats felt them a vital voting issue in 2016, with a hefty 66 per cent believing so in 2020. 

The issue was already crucial to both sides, so its new-found media prominence is unlikely to change much of anything. For example, Pew went on to record in a July 2020 survey that fully eight in ten white, evangelical Protestant registered voters are already planning to vote for Trump in any case. 

The Supreme Court narrative merely heightens the political trends on both sides that were already strongly established — Trump must be re-elected to safeguard the court’s rightward trajectory, or he must be defeated to stop the court’s conservative drift in its tracks — it does not change the story. 

The court nomination is not about the constitutional rights and wrongs of the question, nor is it about any immediate political advantage to be gained through the fight; in the end, it is about the awesome policy power the Supreme Court wields and the chance Republicans have to harness this power for the next generation. The politics, curiously, continue to remain unmoved by all this.

Main image credit: Getty

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