Some anti-abortion legal advocates, for example, have deliberately adopted a more incremental strategy up until now, in part because they thought it was unrealistic that the Supreme Court would overturn Roe v. Wade outright. “That kind of incrementalist thinking will be out the window,” said Leah Litman, a law professor at the University of Michigan.
Meanwhile, the Supreme Court largely responds to the arguments that are brought to its doorstep, and at least one study has indicated that the justices may be more likely to overturn precedent when they’ve been asked to do so explicitly.
This kind of pressure outside the court is hard to measure and quantify — after all, there’s no way of knowing what kinds of laws or cases would end up at the Supreme Court if Ginsburg weren’t being replaced, most likely by a conservative. But it’s important to understand, nonetheless. Because even before Ginsburg’s death, there were signs that Trump’s previous nominations had emboldened conservative advocates to challenge precedents that used to seem untouchable, like a case this term which asks the court to reconsider a 1990 decision about religious exemptions written by former Justice Antonin Scalia, which many conservatives now regard as flawed because it allows the government to impose some restrictions on religious practices.