September 19, 2020

Senate Should Not Address SCOTUS Vacancy Until After Inauguration


September 19, 2020

Contact: Nancy Rodriguez

Washington, D.C.  – American Constitution Society President Russ Feingold released the following statement regarding the filling of the Supreme Court vacancy after the passing of Justice Ruth Bader Ginsburg.

“As we continue to celebrate the life and mourn the passing of Justice Ruth Bader Ginsburg, in thinking about her towering accomplishments I am again and again struck by how completely devoted she was to using the law as a means to improve the lives of all people.

For Justice Ginsburg, our Constitution and laws were not a set of abstractions imposed upon a people fated to endure them. Rather, for her, the Constitution established a blueprint for democracy and a government empowered to promote the general welfare. This was never clearer than in the Sebelius case, in which she was part of the majority that upheld the constitutionality of the Affordable Care Act (ACA).

Now, ironically and potentially tragically, within weeks of her passing, those obsessed with destroying the ACA and denying millions of Americans their basic human right to health care will be back in the Supreme Court. On November 10, in a case called California v. Texas, they will argue -- for the third time -- that the Court should strike down the ACA. They will once again ask the Court to do their bidding, and hand them a victory they failed to achieve legislatively. In the midst of a pandemic, untold numbers of lives will hang in the balance. But this time will be different. This time Justice Ginsburg will not be on the bench.

And now, with her passing, the Court enters a new and perilous phase of its history. The Right has launched a lavishly funded and politically ruthless campaign to capture the Court. They have stolen one Supreme Court seat to place Neil Gorsuch on the Court. Brett Kavanaugh joined him by means of a process so tainted that it will cast a dark shadow over his entire tenure as a Justice. We as a community of progressive legal professionals have an obligation to help guide the nation through this next phase.

Justice Ginsburg was one of the most influential and inspirational lawyers and jurists in American history. Under no circumstances should the Senate consider a replacement for Justice Ginsburg until the inauguration of our next President.”


ACS believes that the Constitution is “of the people, by the people, and for the people.” We interpret the Constitution based on its text and against the backdrop of history and lived experience. Through a diverse nationwide network of progressive lawyers, law students, judges, scholars, and many others, we work to uphold the Constitution in the 21st Century by ensuring that law is a force for protecting our democracy and the public interest and for improving people’s lives. For more information, visit us at or on Twitter at @acslaw.