Judge Amy Coney Barrett appears to be on her way to becoming the next associate justice of the Supreme Court on the United States. If Republicans have their way, she may take her seat early enough to cast a decisive vote to throw out the Affordable Care Act and leave millions of Americans without health insurance in the midst of the coronavirus pandemic.
The Court is currently scheduled to hear arguments in that case on Nov. 10, one week after the election. The Trump administration is supporting the argument by red states led by Texas that Congress effectively eliminated the act’s individual mandate in 2017 and for that reason the entire law must be thrown out.
With 47 seats, Senate Democrats s may not have the votes to block or delay Barrett’s confirmation in either the Judiciary Committee or on the Senate floor, but they can use the confirmation hearings that begin on Monday [Oct. 12] to underline the risk that Barrett’s confirmation would pose to individual rights and to public health. Barrett has previously criticized Chief Justice Roberts for his pivotal vote in 2015 to uphold the act.
In advance of the hearing, Republicans are playing down the issue that President Trump put at the top of his Supreme Court agenda: overruling the landmark abortion rights decision, Roe v. Wade. As one example, the Washington Post noted in a story [Oct. 9] that Iowa’s Republican senator Joni Ernst described the chances of overturning Roe v. Wade as “very minimal” in a Sept. 28 debate with her Democratic opponent.
The reproductive rights organization NARAL is emphasizing that in fact the anti-Roe v. Wade position is politically unpopular. Despite the anti-abortion lobby’s unceasing attacks on the 47-year-old decision by a 7-2 Supreme Court, most Americans do not want to see it overruled. In the most recent poll, NBC News found that 66 percent of Americans surveyed do not want to see the decision overruled and, in fact, that Republicans are “virtually split” with a bare 50 percent majority in favor of reversing the decision.
Barrett, a member of Faculty for Life when she was a law professor at Notre Dame, has taken the minority position on this issue for years—for example, in a political advertisement in Indiana in 2006 that denounced “the barbaric legacy” of the decision and called for it to be overturned. Whether inadvertently or intentionally, Barrett omitted mention of having signed the advertisement.
Years later, however, Barrett soft-pedaled her stance somewhat in a speech at Notre Dame in 2013. "The fundamental element, that the woman has a right to choose abortion, will probably stand," she said. Three years later, she acknowledged the possibility of further restrictions on abortion rights. "I don't think abortion or the right to abortion would change,” she remarked in 2016. “I think some of the restrictions would change."
As a federal appellate judge, Barrett dissented from a Seventh Circuit decision that struck down an Indiana law prohibiting abortions for the purpose of sex selection. Reproductive-rights groups always emphasize that provisions such as that one inevitably mean that the government gets to cross-examine a woman about her reasons for wanting to terminate a pregnancy. So much for the right to choose!
Barrett, it must be remembered, has written that her notion of originalism overrides the legal principle of stare decisis—respect for precedent. “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,” Barrett wrote in a law review article in 2013.
Senate Democrats can usefully remind Barrett of Chief Justice Roberts’ description of Roe v. Wade in his confirmation hearing as settled law and ask whether she agrees. Barrett is likely to evade the question, but Democratic senators may want to note that Louisiana and Texas both enacted laws that could have reduced the number of abortion clinics in each state to only one. Fortunately for access to abortion services, the Court struck down both laws by 5-4 votes; as Ginsburg’s successor, Barrett would provide a critical vote for upholding similar restrictions.
In an alternate universe, the Republican senators who four years ago blocked Merrick Garland’s nomination to the Supreme Court eight months before the 2016 presidential election would be too embarrassed by the rank hypocrisy of pushing Barrett’s nomination barely one month before this year’s election. In this real world, however, Republicans have no principles and no capacity for shame.
The Democratic vice presidential nominee, Senator Kamala Harris, raised this issue one last time in the vice presidential debate [October 7] by noting as historical precedent President Lincoln’s decision shortly before the 1864 presidential election to delay filling a Supreme Court vacancy until after the election. “American people are voting right now,” Harris said. “It should be their decision as to who should have a lifetime appointment to the Supreme Court.”
In fact, a dozen polls indicate that most Americans want the vacancy to be filled by the winner of the 2020 presidential election. In that regard, Democratic senators should press Barrett very hard on whether she will recuse herself – as she ought to – from any litigation brought by her benefactor Trump to contest Nov. 3 election results.
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