Following the death of Supreme Court Justice Ruth Bader Ginsburg last week, a political firestorm has erupted over her replacement and its implications not just for this year’s Presidential Election, but well into the next Presidential term. President Trump has made it clear that he foresees the election reaching the Supreme Court, and that Ginsburg must urgently be replaced. Yesterday, President Trump nominated Amy Coney Barrett to replace the late Justice Ginsburg.
Our research has found that the United States Postal Service is likely to face a surge in demand, with 36% of US voters intending to vote by mail. As the service comes under strain and reports of lost ballots rise, many have forecasted a delay to the final results being released. In our poll this week, the public is divided on when the election results will be known: 36% believe it is likely that we will know the results on election night, yet 39% consider it unlikely.
There are partisan differences to be observed: 43% of likely Donald Trump voters believe the country will be aware of the victory on the night of November 3, compared to 32% of likely Joe Biden voters.
Of those who think it is unlikely that the results will be known on election night, a plurality (47%) expect the outcome to be decided by the end of election week, while 31% say the end of November, and 10% say the end of December.
If it came to it, a clear plurality (43%) of respondents would trust the Supreme Court to come to a fair decision regarding the outcome of a contested election, while around a third (32%) would not. A proportion (27%) are yet to decide whether or not they would trust the Supreme Court. Notably, likely Trump voters were more likely to trust the Supreme Court in this week’s polling, while likely Biden voters appeared less likely in this iteration.
The eight judges currently serving on the Supreme Court usually lean 5-3 towards conservative positions, although Chief Justice John Roberts has sided with the liberal justices in certain cases. Nevertheless, in the event of a contested election, the Court remains more likely to decide in favour of the incumbent President, a fact which may be why the President’s supporters (53%) are now much more likely to trust the Supreme Court than probable Democrat voters (38%).
Including the late Justice Ginsburg, the justices broadly command the support of the American public, with all nine achieving a net positive approval rating, ranging from Justice Kavanaugh’s marginal +1% to Justice Ginsburg’s +42%. Many respondents, however, are either neutral or say they do not know. Nevertheless, it can generally be noted that Republican-appointed justices (+1%, +10%, +11%, +12%, and +19%) are slightly less popular than their Democratic-appointed colleagues (+14%, +16%, +20%, and +42%).
Indeed, the most ‘liberal’ justices, Sonia Sotomayor (+20%) and Ruth Bader Ginsburg (+42%), score the highest, while the most popular Republican-appointed justice (John Roberts, +19%) is the one who has shown the highest tendency to ally with liberal justices, as he most memorably did during a ruling on Obamacare.
Justice Kavanaugh’s particularly lower score of +1% is likely based on the controversial allegations of sexual assault that surrounded his appointment in 2018. It is also notable that the other justice appointed by Donald Trump in 2017, Neil Gorsuch, scores the next lowest rating of +10%. Their unpopularity may be linked to their recent appointments under the Trump administration.
As attention turns to the next appointment, a plurality (44%) of respondents believe Joe Biden would select better Supreme Court justices, compared to 37% who believe Donald Trump would. Around a fifth (19%) don’t know. Interestingly, Justice Ginsburg’s death in the week between our latest polls had little difference on public opinion in this instance.
In the past few days, there has been intense debate over the timing of Ginsburg’s replacement. Any Supreme Court nominee must face a confirmatory vote in the Republican-held Senate, and Republicans largely appear to have rallied round the President by pledging to follow party lines. Democrats, including former President Barack Obama, have claimed that Republican moves to swiftly confirm a nominee are hypocritical, highlighting an occasion in early 2016 when the Senate refused to confirm President Obama’s Supreme Court nominee Merrick Garland on the grounds that it was during an election year.
Ultimately, the public is strongly divided on the issue, with 39% saying they would support a new justice being confirmed before the end of Donald Trump’s current term, while 41% saying they would oppose such a change.
Responses were fiercely divided along party lines, with 80% of Donald Trump supporters favouring an appointment before the end of his current term, and 76% of Joe Biden supporters preferring a later appointment. Only 3% of Donald Trump supporters and 8% of Joe Biden supporters expressed an opinion contrary to the predominant opinion of their subgroup.
Overall, a strong majority (70%) of the President’s support base believe a swift nomination and Senate vote would give Republicans a better chance of winning the Presidential and Senatorial elections in 2020, while just 14% say their chances would be improved by delaying the nomination and Senate vote until next term.
Justice Ginsburg’s death has thrust the Supreme Court into the limelight, with the debates surrounding the institution now carrying immense electoral and constitutional significance. Not only would a swift appointment of another Republican justice threaten Joe Biden’s chance of victory if the election result ends up in the Supreme Court, but it would also present a robust conservative barrier to a Democratic administration if Joe Biden were indeed to be successful.