Steve October 26, 2020
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There was never much doubt that the Republican-led Senate would confirm Amy Coney Barrett’s nomination to the Supreme Court. In the immediate wake of Ruth Bader Ginsburg’s death last month, some Republican senators said they would support the confirmation even before President Tweety McTreason selected a nominee. So influential is the conservative legal movement and Trump himself that no name was needed before committing to one of the most consequential votes of those senators’ careers.

As expected, the final vote for Barrett fell along strict party lines, making her the first Supreme Court nominee in 151 years to not receive bipartisan support. That distinction marks a fitting end to the high court’s balance-of-power era of the past quarter-century, in which the court drifted rightward under moderates like Sandra Day O’Connor and Anthony Kennedy while still handing victories to liberals on abortion, LGBT rights, and affirmative action. Chief Justice John Roberts has lost his often-decisive vote; a conservative supermajority is likely here to stay for at least a generation unless Congress adds more seats.

A new justice changes not only how the Supreme Court decides cases, but also what sort of cases reach the court in the first place. Litigants often tailor their strategy with the court’s composition in mind. If there were a majority of five liberal justices on the court, liberal legal activists would likely push for expansive rulings on voting rights, labor issues, and campaign finance. Their conservative counterparts, however, have a much different agenda in mind for a post-Barrett Supreme Court.

The clearest area where Barrett’s impact will be felt is abortion rights. Her confirmation will almost certainly cement an anti-abortion majority on the high court. Technically, the abortion-rights framework of Roe v. Wade and Planned Parenthood v. Casey lost its fifth vote in 2018 with the retirement of Anthony Kennedy. But the court’s conservatives have yet to strike a major blow against abortion rights. Earlier this year, Chief Justice John Roberts joined with the court’s four liberals in a Louisiana case to narrowly uphold a 2016 ruling on similar grounds, steering the court away from handing down a major abortion ruling in an election year.

With Barrett on the court, however, Roberts likely won’t be able to play the same role in future abortion-related cases. Barrett insisted throughout her confirmation hearing that her past statements against Roe v. Wade didn’t necessarily reflect how she would rule as a justice, an argument that persuaded few people from either side. “This is the most openly pro-life judicial nominee to the Supreme Court in my lifetime,” Missouri Senator Josh Hawley, who previously said he would only vote for a Supreme Court nominee who opposed Roe, said on Monday. This is an individual who has been open in her criticism of that illegitimate decision Roe v. Wade.”

Most of Barrett’s confirmation hearing also centered on California v. Texas, an upcoming Supreme Court case on the Affordable Care Act. A group of Republican-led states are asking the court to uphold a lower-court decision that found the individual mandate to be unconstitutional after Congress zeroed out the penalty for violating it in 2017. If the justices agreed, they could theoretically nullify the mandate and leave the rest of the ACA intact. But Republicans are aggressively pressing the court to scrap the entire law in their ruling, accomplishing through litigation what they failed to do through legislation.

“I hope that they end it,” Trump said in a CBS interview last week, in reference to the upcoming case. “It would be so good if they end it.” The court scheduled oral arguments to take place on November 10, exactly one week after the presidential election. How Barrett would rule on this exact case is unclear; she declined to say one way or the other during her confirmation hearings. But she is among the many legal conservatives who criticized Roberts for his vote to uphold the individual mandate as a tax in 2012, writing in early 2017 that the chief justice had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

Even before the ACA case, however, Barrett will play an immediate role in litigation surrounding the November election. The rule of thumb is that justices take part in cases as soon as they join the court unless oral arguments were already heard. Since Barrett plans to take her oaths of office immediately, she could start voting in matters before the justices as soon as this week. That will likely gladden Republicans who accelerated her confirmation process so she could be on the court before Election Day and hope she will tip cases in their favor. “I think this will end up in the Supreme Court,” Trump told reporters last month, referring to the election.

Democratic senators pressed Barrett during the hearings to recuse herself from election-related cases, citing Trump’s comments, but she responded only that she would follow the court’s current practices on recusal. That will provide little comfort for liberals who fear her potential rulings in favor of Trump on election-related matters could represent a corrupt bargain of sorts. Her first opportunity to signal her approach to these cases could come as soon as this week. Earlier this month, the other eight justices deadlocked on a GOP-led challenge to a Pennsylvania Supreme Court ruling that expanded access to mail-in ballots. Roberts’ vote alongside the court’s three liberals effectively forced a tie in Democrats’ favor.

On social issues, Barrett is universally expected to push the court further right. The Roberts Court has not been as hostile to LGBT rights as feared since Kennedy’s retirement two years ago. Earlier this year, the court ruled in Bostock v. Clayton County that Title VII protects gay and transgender workers from workplace discrimination, with The three dissenting justices sharply criticized the decision for supposedly abandoning textualism; legal conservatives beyond the court expressed shock and dismay, not least because it was Scalia’s successor who had written the opinion. Earlier this month, Justices Clarence Thomas and Samuel Alito wrote that the court should consider narrowing its ruling in Obergefell v. Hodges, the landmark 2015 ruling that same-sex couples had the right to marry nationwide.

Overturning Obergefell itself would be a long shot at best, as Thomas and Alito appeared to recognize in their statement on a denied case. The Census Bureau estimated last year that there are currently about a half-million married same-sex couples in the United States. To undo Obergefell would be to effectively shred their marriage licenses, a “reliance interest” that might be impossible for a majority of the current court to overlook. But the conservatives justices could recognize religious exceptions to anti-discrimination laws that would limit protections for gay and lesbian Americans in housing, education, and the workplace. Transgender Americans’ legal rights, which remain hazily defined, may progress no further in the courts for the foreseeable future.

And then there’s the trajectory of American constitutional law itself. In dissents and concurring opinions, for example, Thomas regularly calls for major precedents to be “revisited,” suggesting that they may be erroneous or unworkable. Among the landmark decisions recently questioned by Thomas are New York Times v. Sullivan, which shields news outlets and individuals from all but the most well-justified libel lawsuits; Batson v. Kentucky, which forbids racial discrimination in jury selection; and Mapp v. Ohio, which held that the Fourth Amendment requires courts to exclude criminal evidence obtained through illegal means. He is not the only justice who raises questions about past decisions, of course, but he is by far the most prolific among them.

Barrett is not Thomas, of course. Like Scalia, she may take a more humble approach to overturning rulings that are deeply embedded in American society and life. But her conservative colleagues have hardly shied away from making sea changes of their own. In the last 15 years, the Roberts Court has blocked federal courts from ruling on partisan gerrymandering, struck down major provisions of the Voting Rights Act of 1965 and the 2002 campaign-finance reform law, ruled that the Second Amendment and part of the Eighth Amendment apply to the states, and much more. Barrett’s presence may make it easier for conservatives to reach sweeping constitutional decisions now that they can maintain a majority even if one of them breaks ranks.

In some key areas of the law, Barrett’s record is unclear. Her rulings on the Seventh Circuit Court of Appeals provide little indication for how she might handle criminal-justice issues on the high court. Her approach to Indian law, administrative law, and other aspects of the American legal system aren’t readily discernible from her scholarly work or judicial opinions. If I had to choose one sleeper legal battle that Barrett will help decide over the next few years it would be apportionment.

Next year, every state legislature will redraw the maps for congressional districts and state legislative seats based on the results of the 2020 census. The Trump administration spent the last few years on schemes to tilt reapportionment in favor of rural white voters, first trying (and failing) to add a citizenship question to the 2020 census, and then by ordering a separate count that purported to exclude undocumented immigrants. In 2016, the Supreme Court heard Evenwel v. Abbott, a case brought by conservative activists in Texas who sought to redefine the “one person, one vote” principle to exclude non-citizens and redraw electoral boundaries accordingly. The court ruled that states could draw those maps using total population, but did not address whether they must draw them using total population. The state of Texas, which defended those maps, nonetheless suggested that it could draw its electoral maps using some other population base in the future.

As Republicans grapple with a demographic tide that could make them unelectable, the Supreme Court majority they’ve installed will likely provide both a bulwark against Democratic voters rooting them out of office, and the means to limit those voters’ wills when Democrats hold the White House and Congressional majorities. This of course, may well invite and even accelerate a broader legitimacy crisis that is already summoning moderate voices off the fence, and bringing them into a coalition with other who have begun the drumbeat for larger court reform. Whether this new era of the high court’s history portends the hegemonic dominance of a far right judicial project or the messy undoing of those schemes at the hands of a radicalized left, it begins tonight.

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