Obamacare may be doomed if eight-member Supreme Court presses ahead with fall cases

WASHINGTON — Ruth Bader Ginsburg’s death, ending one of the most remarkable careers in American legal history, leaves the Supreme Court under a cloud of uncertainty as it prepares to begin its new term in two weeks, with questions about who will put her successor on the court, when will that happen and how will it affect some of the major cases on the docket — including the fate of Obamacare.

Ginsburg’s death on Friday leaves eight justices on the court, which raises the prospect of 4-4 tie votes. After Justice Antonin Scalia died in 2016, the remaining justices ended up deferring contentious issues or deciding cases without sweeping rulings. But his death left an even number of generally liberal and conservative votes.

The court now stands 5-3 ideologically, with Chief Justice John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh among the conservatives, and Stephen Breyer, Sonia Sotomayor, and Elena Kagan constituting the liberal wing.

Because it takes five votes to prevail, the court might plunge ahead in deciding some of the term’s major cases.

The week after the November general election, the court will consider the future of Obamacare, which a coalition of red states are hoping to strike it down — including the provision requiring insurance companies to cover pre-existing conditions.

If Roberts, who has voted in the past to uphold the law, sided with the liberals this time, that 4-4 tie would leave the lower court ruling in place, which declared the law invalid.

55 PHOTOSRuth Bader GinsburgSee GalleryRuth Bader GinsburgWASHINGTON, DC – AUGUST 30: Supreme Court Justice Ruth Bader Ginsburg, celebrating her 20th anniversary on the bench, is photographed in the West conference room at the U.S. Supreme Court in Washington, D.C., on Friday, August 30, 2013. (Photo by Nikki Kahn/The Washington Post via Getty Images)WASHINGTON, DC – JANUARY 20:(L-R) U.S. Supreme Court Chief Justice John Roberts, with Justices, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan listen as U.S. President Barack Obama delivers his State of the Union speech before members of Congress in the House chamber of the U.S. Capitol on January 20, 2015 in Washington, DC. Obama presented a broad agenda including attempts to address income inequality and making it easier for Americans to afford college education and child care.(Photo by Alex Wong/Getty Images)WASHINGTON, DC – JANUARY 20:U.S. President Barack Obama hugs Supreme Court Justice Ruth Bader Ginsburg as Justices Anthony M. Kennedy (L) and Stephen G. Breyer look on prior to the State of the Union address on January 20, 2015 in the House Chamber of the U.S. Capitol in Washington, DC. Obama was expected to lay out a broad agenda to address income inequality, making it easier for Americans to afford college education, and child care.(Photo by Mandel Ngan-Pool/Getty Images)WASHINGTON, DC – JANUARY 20:U.S. President Barack Obama hugs Supreme Court Justice Ruth Bader Ginsburg before delivering the State of the Union address in the House chamber of the U.S. Capitol January 20, 2015 in Washington, DC. Obama was expected to lay out a broad agenda to address income inequality, making it easier for Americans to afford college education, and child care. Also pictured are Vice President Joe Biden (L) and Speaker of the House John Boehner (R) (R-OH).(Photo by Mark Wilson/Getty Images)WASHINGTON, DC – AUGUST 30: Supreme Court Justice Ruth Bader Ginsburg, celebrating her 20th anniversary on the bench, is photographed in the East conference room at the U.S. Supreme Court in Washington, D.C., on Friday, August 30, 2013. (Photo by Nikki Kahn/The Washington Post via Getty Images)WASHINGTON, DC – NOVEMBER 19:Supreme Court Justice Ruth Bader Ginsburg gives a toast at the New Republic Centennial Gala at the Andrew W. Mellon Auditorium on November 19, 2014 in Washington, DC.(Photo by Teresa Kroeger/Getty Images)Ruth Bader Ginsburg, associate justice of the U.S. Supreme Court, stands in her chambers following an interview in Washington, D.C., U.S., on Friday, Aug. 23, 2013. Ginsburg, 80, the oldest member of the Supreme Court and appointed to the court in 1993 by Democratic President Bill Clinton, has said on several occasions that she wants to match the longevity of Justice Louis Brandeis, who was 82 when he stepped down in 1939. Photographer: Andrew Harrer/Bloomberg via Getty Images NEW YORK, NY – NOVEMBER 17:Honorable Samuel Alito, Jr. (L) Associate Justice of Supreme Court of the United States and Honorable Ruth Bader Ginsburg Associate Justice of Supreme Court of the United States attend Richard Tucker Music Foundation’s 38th annual gala at Avery Fisher Hall, Lincoln Center on November 17, 2013 in New York City.(Photo by Paul Zimmerman/WireImage)NEW YORK, NY – NOVEMBER 17:Honorable Ruth Bader Ginsburg, Associate Justice of Supreme Court of the United States, attends Richard Tucker Music Foundation’s 38th annual gala at Avery Fisher Hall, Lincoln Center on November 17, 2013 in New York City.(Photo by Monica Schipper/Getty Images)USA – 2013 300 dpi Chris Ware color caricature of U.S. Supreme Court Justice Ruth Bader Ginsburg. MCT via Getty Images 2013WASHINGTON, DC – JANUARY 28:Sen. Orrin Hatch (R-UT) (L) shakes hands with U.S. Supreme Court Associate Justice Ruth Bader Ginsburg (R) as Associate Justice Stephen Breyer look son before President Barack Obama delivers the State of the Union address to a joint session of Congress in the House Chamber at the U.S. Capitol on January 28, 2014 in Washington, DC. In his fifth State of the Union address, Obama is expected to emphasize on healthcare, economic fairness and new initiatives designed to stimulate the U.S. economy with bipartisan cooperation.(Photo by Chip Somodevilla/Getty Images)US Supreme Court Justices Ruth Bader Ginsburg (L), and Stephen Breyer (R) listen as US President Barack Obama delivers the State of the Union address before a joint session of Congress on January 28, 2014 at the US Capitol in Washington.AFP PHOTO/Brendan SMIALOWSKI(Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)WASHINGTON, DC – APRIL 17:Supreme Court Justice Ruth Bader Ginsburg waits for the beginning of the taping of ‘The Kalb Report’ April 17, 2014 at the National Press Club in Washington, DC. The Kalb Report is a discussion of media ethics and responsibility at the National Press Club held each month. (Photo by Alex Wong/Getty Images)WASHINGTON, DC – APRIL 17:Supreme Court Justices Antonin Scalia (L) and Ruth Bader Ginsburg (R) wait for the beginning of the taping of ‘The Kalb Report’ April 17, 2014 at the National Press Club in Washington, DC.The Kalb Report is a discussion of media ethics and responsibility at the National Press Club held each month. (Photo by Alex Wong/Getty Images)WASHINGTON, DC – AUGUST 30: Supreme Court Justice Ruth Bader Ginsburg, celebrating her 20th anniversary on the bench, is photographed in the West conference room at the U.S. Supreme Court in Washington, D.C., on Friday, August 30, 2013. (Photo by Nikki Kahn/The Washington Post via Getty Images)WASHINGTON, DC – AUGUST 30: Supreme Court Justice Ruth Bader Ginsburg, celebrating her 20th anniversary on the bench, is photographed in the East conference room at the U.S. Supreme Court in Washington, D.C., on Friday, August 30, 2013. (Photo by Nikki Kahn/The Washington Post via Getty Images)Ruth Bader Ginsburg, associate justice of the U.S. Supreme Court, looks out the window of her chambers following an interview in Washington, D.C., U.S., on Friday, Aug. 23, 2013. Ginsburg, 80, the oldest member of the Supreme Court and appointed to the court in 1993 by Democratic President Bill Clinton, has said on several occasions that she wants to match the longevity of Justice Louis Brandeis, who was 82 when he stepped down in 1939. Photographer: Andrew Harrer/Bloomberg via Getty Images WASHINGTON, DC – FEBRUARY 12: Members of the Supreme Court, (L-R) Chief Justice John Roberts and associate justices Anthony Kennendy, Ruth Bader Ginsburg, John Paul Stevens, Sonia Sotomayor and Elena Kagan, applaud as U.S. President Barack Obama arrives to deliver his State of the Union speech before a joint session of Congress at the U.S. Capitol February 12, 2013 in Washington, DC. Facing a divided Congress, Obama focused his speech on new initiatives designed to stimulate the U.S. economy and said, ‘ItÕs not a bigger government we need, but a smarter government that sets priorities and invests in broad-based growth’. (Photo by Chip Somodevilla/Getty Images)WASHINGTON, DC – FEBRUARY 12:Supreme Court Associate Justice Ruth Bader Ginsburg attends President Barack Obama’s State of the Union speech before a joint session of Congress at the U.S. Capitol February 12, 2013 in Washington, DC. Facing a divided Congress, Obama focused his speech on new initiatives designed to stimulate the U.S. economy and said, ‘ItÕs not a bigger government we need, but a smarter government that sets priorities and invests in broad-based growth’.(Photo by Chip Somodevilla/Getty Images)Supreme Court Justices Ruth Bader Ginsburg, left, and Elena Kagan attend the opening night gala of the Washington National Opera at the Kennedy Center in Washington, D.C., U.S., on Saturday, Sept. 15, 2012. The gala followed a performance of ‘Anna Bolena.’ Photographer: Stephanie Green/Bloomberg via Getty Images NEW YORK, NY – NOVEMBER 12:Justice Ruth Bader Ginsburg poses backstage at the 22nd annual Glamour Women of the Year Awards at Carnegie Hall on November 12, 2012 in New York City.(Photo by Dimitrios Kambouris/WireImage for Glamour Magazine)NEW YORK, NY – NOVEMBER 12:Justice Ruth Bader Ginsburg speaks onstage at the 22nd annual Glamour Women of the Year Awards at Carnegie Hall on November 12, 2012 in New York City.(Photo by Theo Wargo/WireImage for Glamour Magazine)UNITED STATES – JANUARY 21: Supreme Court Justice Ruth Bader Ginsburg arrives for the luncheon in Statuary Hall during President Barack Obama’s inauguration ceremony on Monday, Jan. 21, 2013. (Photo By Bill Clark/CQ Roll Call)CAMBRIDGE – MAY 26: While standing to receive her honorary degree, U.S. Supreme Court Associate Justice Ruth Bader Ginsburg is surprised with a serenade from Spanish tenor Placido Domingo (right) after he received his honorary degree.Sitting between them are commencement speaker and honorary degree recipient Ellen Johnson Sirleaf, president of Liberia, and Harvard president Drew Faust (right rear).Harvard University holds its commencement exercises in Tercentenary Theatre, on Thursday, May 26, 2011. (Photo by Pat Greenhouse/The Boston Globe via Getty Images)WASHINGTON – APRIL 10:CEO Niche Media Jason Binn and the honorable Ruth Bader Ginsburg pose for a photo at Capitol File Magazine’s After Party for Robert Redford’s The Conspirator at The Newseum on April 10, 2011 in Washington, DC.(Photo by Paul Morigi/WireImage for Niche Media)WASHINGTON, DC – JANUARY 25:U.S President Barack Obama (C) greets (L-R) Supreme Court Justices Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer before the State of the Union address on Capitol Hill on January 25, 2011 in Washington, DC. During his speech Obama was expected to focus on the U.S. economy and increasing education and infrastructure funding while proposing a three-year partial freeze of domestic programs and $78 billion in military spending cuts.(Photo by Chip Somodevilla/Getty Images)Ruth Bader Ginsburg, an Associate Justice on the United States Supreme Court, speaks during The Women’s Conference in Long Beach, California, U.S., on Tuesday, Oct. 26, 2010. Originally established in 1985, the event has grown into the largest one-day conference for women in the U.S., and has a mission to empower women to be ‘Architects of Change.’ Photographer: Jonathan Alcorn/Bloomberg via Getty ImagesLONG BEACH, CA – OCTOBER 26: Diane Swayer (L), and Associate Justice Ruth Bader Ginsburg speak during the Maria Shriver Women’s Conference at the Long Beach Convention Center on October 26, 2010 in Long Beach, California.(Photo by Frederick M. Brown/Getty Images)LONG BEACH, CA – OCTOBER 26:Justice Ruth Bader Ginsburg attends California first lady Maria Shriver’s annual Women’s Conference 2010 on October 26, 2010 at the Long Beach Convention Center in Long Beach, California. Attendees to the conference include Gov. Arnold Schwarzenegger and candidates for California Governor Republican Meg Whitman and Democrat Jerry Brown.(Photo by Kevork Djansezian/Getty Images)LONG BEACH, CA – OCTOBER 26:Justice Ruth Bader Ginsburg (C) looks at former justice Sandra Day O’Connor (R) speak during a discussion with ABC News anchor Diane Sawyer (L) during California first lady Maria Shriver’s annual Women’s Conference 2010 on October 26, 2010 at the Long Beach Convention Center in Long Beach, California. Attendees to the conference include Gov. Arnold Schwarzenegger and candidates for California Governor Republican Meg Whitman and Democrat Jerry Brown.(Photo by Kevork Djansezian/Getty Images)The newest member of the US Supreme Court, Associate Justice Elena Kagan (C), participates in the courts official photo session with Associate Justice Anthony M. Kennedy (L) and Associate Justice Ruth Bader Ginsburg (R) on October 8, 2010 at the Supreme Court in Washington, DC. AFP PHOTO / TIM SLOAN (Photo credit should read TIM SLOAN/AFP/Getty Images)The justices of the U.S. Supreme Court. From left: Clarence Thomas, Sonia Sotomayor, Antonin Scalia, Stephen Breyer, Chief Justice John Roberts, Samuel Alito, Anthony Kennedy, Elena Kagan and Ruth Bader Ginsburg. (The Collection of the Supreme Court of the United States/MCT via Getty Images)Supreme Court Justice Ruth Bader Ginsburg. (The Collection of the Supreme Court of the United States/MCT via Getty Images)WASHINGTON – OCTOBER 08:U.S. Supreme Court Associate Justice Ruth Bader Ginsburg poses for photographs in the East Conference Room at the Supreme Court building October 8, 2010 in Washington, DC. This is the first time in history that three women are simultaneously serving on the court.(Photo by Chip Somodevilla/Getty Images)The Justices of the US Supreme Court sit for their official photograph on October 8, 2010 at the Supreme Court in Washington, DC. Front row (L-R): Associate Justice Clarence Thomas,Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy and Associate Justice Ruth Bader Ginsburg. Back Row (L-R): Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr. and Associate Justice Elena Kagan. AFP PHOTO / TIM SLOAN (Photo credit should read TIM SLOAN/AFP/Getty Images)SAN FRANCISCO – AUGUST 09:U.S. Supreme Court justice Ruth Bader Ginsburg is seen on a video screen as she speaks to delegates at the American Bar Association (ABA) House of Delegates meeting August 9, 2010 in San Francisco, California. Justice Ginsburg was honored with the prestigous ABA Medal, the Bar Association’s highest honor.(Photo by Justin Sullivan/Getty Images)SAN FRANCISCO – AUGUST 09:U.S. Supreme Court justice Ruth Bader Ginsburg speaks to delegates at the American Bar Association (ABA) House of Delegates meeting August 9, 2010 in San Francisco, California. Justice Ginsburg was honored with the prestigous ABA Medal, the Bar Association’s highest honor.(Photo by Justin Sullivan/Getty Images)US Supreme Court justice Ruth Bader Ginsburg (R) arrives for a reception in honor of Designated Supreme Court justice Elena Kagan August 6, 2010, in the East Room of the White House in Washington, DC.Kagan has become only the fourth woman to win confirmation as Supreme Court justice.AFP PHOTO/Jim WATSON (Photo credit should read JIM WATSON/AFP/Getty Images)US President Barack Obama is greeted by Supreme Court Justice Ruth Bader Ginsburg prior to delivering his first State of the Union address at the US Capitol in Washington, DC, January 27, 2010. AFP PHOTO / Saul LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)US Supreme Court Justice Ruth Bader Ginsburg poses during a group photo September 29, 2009 in the East Conference Room of the Supreme Court in Washington, DC. AFP PHOTO/Mandel NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)WASHINGTON – SEPTEMBER 29:Members of the US Supreme Court pose for a group photograph at the Supreme Court building on September 29, 2009 in Washington, DC.Front row (L-R): Associate Justice Anthony M. Kennedy, Associate Justice John Paul Stevens, Chief Justice John G. Roberts, Associate Justice Antonin Scalia, and Associate Justice Clarence Thomas. Back Row (L-R),Associate Justice Samuel Alito Jr., Associate Justice Ruth Bader Ginsburg, Associate Justice Stephen Breyer, and Associate Justice Sonia Sotomayor. (Photo by Mark Wilson/Getty Images)UNITED STATES – FEBRUARY 24:Supreme Court Justice Ruth Bader Ginsburg walks through Statuary Hall before President Barack Obama’s address to the joint session of Congress on Feb. 24, 2009.(Photo By Bill Clark/Roll Call/Getty Images)US Supreme Court Associate Justice Ruth Bader Ginsburg (L) greets US President Barack Obama before he addresses a Joint Session of Congress at the Capitol in Washington on February 24, 2009. AFP PHOTO/SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)US Supreme Court Associate Justice Ruth Bader Ginsburg arrives before US President Barack Obama addresses a Joint Session of Congress at the Capitol in Washington on February 24, 2009. AFP PHOTO/Nicholas KAMM (Photo credit should read NICHOLAS KAMM/AFP/Getty Images)Associate Supreme Court Justice Ruth Bader Ginsburg arrives for President Barack Obama address to a joint session of Congress in the House Chamber of the Capitol in Washington on February 24, 2009.AFP PHOTO / POOL / Pablo Martinez Monsivais) (Photo credit should read PABLO MARTINEZ MONSIVAIS/AFP/Getty Images)WASHINGTON – FEBRUARY 24: Supreme Court Justice Ruth Bader Ginsburg arrives for President Barack Obama’s address to a joint session of Congress at the U.S. Capitol on February 24, 2009 in Washington, DC. U.S. President Barack Obama will address a joint session of the Congress at 9:01pm tonight where he plans to address the topics of the struggling U.S. economy, the budget deficit, and health care.(Photo by Brendan Hoffman/Getty Images)WASHINGTON – JUNE 8:U.S. Supreme Court Justice Ruth Bader Ginsburg waits to enter a dinner to honor Michelle Bachelet, Chile’s first female president, May 8, 2006 in Washington, DC. Over 350 women leaders including Sen. Susan Collins (R-MI), Sen. Hillary Rodham Clinton (D-NY), Rep. Janice Schakowsky (D-Il), Rep. Katherine Harris (R-FL), US Treasurer Anna Escobedo Cabral, Actress Geena Davis and Editor-at-Large of Fortune Magazine Pattie Sellers are expected to attend.(Photo by Brendan Smialowski/Getty Images)SLUG: ME-READING19 PHOTOGRAPHER: NIKKI KAHN/THE WASHINGTON POST DATE: 9/18/2006The Kennedy Center, Washington, DCSupreme Court Justice Ruth Bader Ginsburg during the reading of the Constitution at Georgetown University’s Gonda Theater in Washington, D.C., on Monday, September 18, 2006.(Photo by Nikki Kahn/The Washington Post/Getty Images)U.S. Supreme Court Associate Justice Ruth Bader Ginsburg speaks during a discussion on the 100th anniversary of the ratification of the 19th Amendment at Georgetown University Law Center in Washington, Monday, Feb. 10, 2020. (AP Photo/Patrick Semansky)U.S. Supreme Court Justice Ruth Bader Ginsburg gestures while introduced during the inaugural Herma Hill Kay Memorial Lecture at the University of California at Berkeley, Monday, Oct. 21, 2019, in Berkeley, Calif. (AP Photo/Jeff Chiu)Supreme Court Justice Ruth Bader Ginsburg, right, listens as former Secretary of State Hillary Clinton speaks, Wednesday, Oct. 30, 2019, at Georgetown Law’s second annual Ruth Bader Ginsburg Lecture, in Washington. (AP Photo/Jacquelyn Martin)Supreme Court Justice Ruth Bader Ginsburg, smiles as she attends a panel discussion celebrating Sandra Day O’Connor, the first woman to be a Supreme Court Justice, Wednesday Sept. 25, 2019, at the Library of Congress in Washington. (AP Photo/Jacquelyn Martin)Supreme Court Justice Ruth Bader Ginsburg speaks at Georgetown Law in Washington, Thursday, Sept. 12, 2019. (AP Photo/Andrew Harnik)WASHINGTON, DC – FEBRUARY 19: U.S. Supreme Court Justice Ruth Bader Ginsburg and Ria Tabacco Mar speak at the DVF 2020 Awards at the Library of Congress on February 19, 2020 in Washington, DC. (Photo by Shannon Finney/Getty Images for DVF)PHILADELPHIA, PENNSYLVANIA – DECEMBER 19: U.S. Supreme Court Justice Ruth Bader Ginsburg speaks on stage during her induction into The National Museum Of American Jewish History’s Only In America Gallery at National Museum of American Jewish History on December 19, 2019 in Philadelphia, Pennsylvania. (Photo by Gilbert Carrasquillo/Getty Images)Up Next

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Another case, a legal dispute between a Catholic charity and the city of Philadelphia, asks the justices to decide whether there’s a religious freedom exception to non-discrimination laws. The court considered but eventually ducked that question three years ago in the case of a Colorado baker who refused to provide cakes for same-sex weddings, saying it would violate his religious beliefs and freedom of expression.

Tom Goldstein, a Washington, D.C., lawyer who argues frequently before the court, said he assumes the court will push ahead to decide those controversies.

“I don’t think they’ll keep the landing gear down. There may be some ties this time, but not on the big social issue cases,” he said.

One of Ginsburg’s closest friends, Nina Totenberg of National Public Radio, reported that a few days before her death, the justice gave this statement to her granddaughter: “My fervent wish is that I will not be replaced until a new president is installed.”

Because the winner of the presidential election won’t take the oath of office until Jan. 20, her dying wish seems unlikely to be fulfilled. The Senate’s majority leader, Mitch McConnell of Kentucky, said Friday that President Donald Trump’s nominee to fill the vacancy, whoever that may be, will get a vote before the full Senate. But it’s possible the Senate won’t know who the next president will be when it votes.

During the past 45 years, the average time from a president’s announcement of a Supreme Court nominee until the Senate votes to confirm is 70 days. Assuming Trump moves quickly, as he suggested Saturday he intends to, that would put a confirmation vote in late November or early December.

If the election is a close one, and some state results are disputed in court, those legal battles might still be raging. In 2000, the country didn’t know whether the next president would be George W. Bush or Al Gore until the Supreme Court decided the Florida recount case in mid-December.

The process has moved more quickly the in the past. John Paul Stevens took his seat on the Supreme Court just 19 days after President Ford nominated him in 1975 to succeed William O. Douglas. Sandra Day O’Connor’s confirmation followed 33 days after she was nominated by President Reagan.

But those days of a more congenial Senate, are long gone. For the last seven Supreme Court nominees, it has taken an average of 72 days, and the Senate votes have grown closer as partisan rancor has grown.

McConnell may feel compelled to move quickly, however, especially if Republicans lose a seat in a special election to fill the vacancy left by the death of Sen. John McCain of Arizona. Trump said Saturday at the Senate has an obligation to act on a nomination “without delay.”

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