Excerpted from “Justice on the Brink: The Death of Ruth Bader Ginsburg and the Rise of Amy Coney Barrett and Twelve Months That Transformed the Supreme Court” by Linda Greenhouse ’68, published by by Random House, an imprint and division of Penguin Random House LLC.
The late October sky had grown dark, but the lights aimed at the White House were so bright that on the Truman Balcony it might have been high noon. She stood bathed in the glow, the president by her side, he bundled in a heavy coat against the evening chill and she in a short-sleeved black dress that brushed the top of her knees. Her light brown hair fell straight to her shoulders. She looked younger than her 48 years. Barely an hour earlier, by a near party-line vote of 52 to 48, the Senate had confirmed her to a Supreme Court seat that had been empty for the mere five weeks since the death of the woman who had occupied it for 27 years, Justice Ruth Bader Ginsburg.
Not for 151 years had the Senate confirmed a Supreme Court nominee without a single vote from the minority party. For the Democratic senators, who had refused on principle to show up for the Judiciary Committee vote, filling a Supreme Court vacancy eight days away from a presidential election was an illegitimate exercise of power. But to Senator Mitch McConnell, Republican of Kentucky, the majority leader who during the past four years had shepherded more than 200 of President Donald Trump’s nominees to their life-tenured seats on the federal bench, it was the reason he was there.
The Truman Balcony tableau, Democrats would grumble the next morning, was the ultimate photo op, breathtaking in its audacity; the country had never seen anything like it. True enough. But on the other hand, was it really so astonishing? The country was witnessing something new, yes. But what was really on display was the culmination of a project launched years before, one that had been set on a path carefully planned, tended, and laid out for all to see — except, of course, that most people weren’t looking, or, if they were, they mistook occasional setbacks for lasting defeat. It was a project by a group of conservative lawyers called the Federalist Society to take back the Supreme Court, and the woman on the balcony was its instrument. She was Amy Coney Barrett, the chosen one.
There are few inevitable events in politics, but in retrospect it’s tempting to see Barrett’s nomination to the Supreme Court as one of them. Long before Trump’s announcement of her selection in the White House Rose Garden on Sept. 26—the celebratory event that became a notorious COVID-19 superspreader — he had made it clear that he would name her to the Supreme Court if he got the chance. When Justice Anthony Kennedy retired two years earlier, Barrett, who had taken her seat only months before on the federal appeals court in Chicago, appeared on the president’s short list for the vacancy. But Trump chose instead another appeals court judge, Brett Kavanaugh. “I’m saving her for Ginsburg,” he explained, words intended to assure any disappointed members of his base that while the devoutly Catholic mother of seven had been passed over for this vacancy, she would not be overlooked the next time.
The question, of course — really the only question — was whether there would be a next time. Not since Richard Nixon had there been three Supreme Court vacancies in a president’s first term. But no one could rule it out. The recent history of Supreme Court nominations was filled with the unexpected. Justice Antonin Scalia, revered on the right, had died unexpectedly in February 2016, near the start of President Barack Obama’s final year in office. Barely an hour after word came of the justice’s death, well before most Americans had even heard the news on that Saturday afternoon, McConnell had declared that he would not permit the president to fill the vacancy. “The American people should have a voice in the selection of their next Supreme Court justice,” McConnell said. “Therefore, this vacancy should not be filled until we have a new president.”
It was an eyebrow-raising, norm-shattering proposition. While it was generally assumed that the Supreme Court confirmation door would close at some point during an election year, no one had questioned the propriety of filling a seat only a few months in. The Senate never gave a hearing to Obama’s nominee, Merrick Garland, chief judge of the federal appeals court in Washington, D.C., a widely admired figure who had drawn praise in the past from leading Republicans, suddenly grown silent.
Eleven days after taking office, Trump nominated Neil Gorsuch, a judge on the federal appeals court in Denver, for the Scalia vacancy. When Democrats threatened a filibuster to protest filling what they deemed a stolen seat, the Republican majority changed the rules and abolished the filibuster for Supreme Court nominations. Gorsuch was confirmed by a vote of 54 to 45 (60 votes would have been required to break a filibuster), and Kavanaugh — like Garland a judge on the U.S. Court of Appeals for the District of Columbia Circuit — was confirmed to the Kennedy vacancy the next year.
That year passed without a retirement, and when the 2019–20 term ended on July 9 without a retirement announcement, it appeared that there would be no Supreme Court vacancy during the remainder of Trump’s first term. The public was unaware that Ginsburg, at 87 the oldest member of the court and the senior member of its increasingly beleaguered liberal bloc, was fighting what would be the last of her numerous battles with cancer. Nine weeks later, on Sept. 18, Ginsburg died of metastatic pancreatic cancer.