The 2020 US Presidential Election has already been billed by many political pundits as one fighting for the very heart of US values. The announcement that Associate Justice of the Supreme Court of the United States, Ruth Bader Ginsburg, passed away on Friday 18th September and the near immediate nomination of a successor presents what could be a generational step change interpretation of the US constitution.  Its likely impact on the outcome of the current presidential election however remains unclear.

The Trump administration’s decision to nominate Amy Coney Barratt last week breaks an 80 year precedent of not appointing to the Supreme Court in an election year, and one that many of the Senate’s Leaders doubled-down on in the last Presidential Election year. Polling suggests it will be a close-run battle in November and it’s looking increasingly likely that any declared result will be contested due to controversy over the use of mail-in ballots – a theory much trailed by the Republicans in the run up to this election. Any contested result would be referred to the judicial system and given its significance would be expedited to the Supreme Court.

Last week the President suggested his nominee could swing the election if appointed quickly.  He expressed concern over a possible 4-4 tie if only 8 judges voted on the outcome of the contested election result. The thinking around this is fairly unclear given the Republicans have nominated 5 of the current 8 judges. Conventional wisdom suggests it is more than likely a conservative leaning court will find in favour of a continued Trump presidency and award him a further four years in the White House.

In the event of a 4-4 split however, the decision would then defer to that of the lower court.  The Trump presidency has had a number of unsuccessful run-ins with the lower courts over the course of the past 4 years and there is certainly a level of mistrust of the wider judiciary within administration. This is likely a key motivating factor in the push to appoint to new justice quickly.

Republicans have suggested that the new justice could be approved prior to November 2nd. While by no means impossible this would be far quicker than usual – with this process generally taking 2 to 3 months on average. Intriguingly during the first Presidential debate Trump argued that it could take months for a definitive result in the Election.  If this is indeed the case it would in theory allow ample time to complete the various confirmatory hearings for the Supreme Court nominee.