UPDATE: The Senate Judiciary Committee hearing for Judge Amy Coney Barrett continues Thursday. Follow along live here:
SALT LAKE CITY — The confirmation process of Judge Amy Coney Barrett to the nation’s highest court began Monday before the Senate Judiciary Committee in what is expected to be four days of politically charged hearings just weeks before the presidential election.
Democrats are reportedly resigned to Barrett being confirmed by the Republican-controlled Senate and are expected to grill the nominee on legal precedents they fear could be challenged by a 6-3 conservative majority on the Supreme Court.
Barrett, 48, would fill the seat held by Justice Ruth Bader Ginsburg, a liberal and legal icon who died last month at 87-years-old from cancer.
Barrett spoke Monday in her opening remarks about courts having a vital responsibility to enforce the rule of law.
“But courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people. The public should not expect courts to do so, and courts should not try,” she said.
If confirmed by the Senate, Barrett would solidify a conservative majority on the court that could influence decisions on an array of topics, from a contested presidential election should it occur, to the Affordable Care Act, religious liberty and abortion.
“When I write an opinion resolving a case, I read every word from the perspective of the losing party,” Barrett states in the written remarks, NPR reported. “I ask myself how would I view the decision if one of my children was the party I was ruling against: Even though I would not like the result, would I understand that the decision was fairly reasoned and grounded in the law? That is the standard I set for myself in every case, and it is the standard I will follow as long as I am a judge on any court.”
Democrats have been outraged that Republicans would move forward with the confirmation of a new Supreme Court justice weeks before a presidential election. They and Democratic presidential nominee Joe Biden have said the nomination should be done by the winner of Nov. 3 election. Biden’s running mate, Sen. Kamala Harris of California sits on the Judiciary Committee.
That frustration stems from 2016 when a Republican-led Senate refused to move forward with President Barack Obama’s nomination of Judge Merrick Garland to the Supreme Court in the last year of the president’s tenure. Senate Majority Leader Mitch McConnell, R-Ky., said then that the nomination should be done by the president elected in 2016.
We’re now just 24 days away from Election Day. Millions of Americans have ALREADY voted early. Yet Senate Republicans are still rushing the Supreme Court confirmation process in order to have the court do what they couldn’t do in Congress: repeal the ACA.— Senator Dianne Feinstein (@SenFeinstein) October 10, 2020
Responding to accusations of hypocrisy, President Donald Trump and Senate Republicans have argued they have a constitutional duty to confirm a new justice and have dismissed Democrats’ protests as political theater.
Donald Trump, for his part, did as President Obama did: each president nominated a candidate for the Supreme Court. It was then left to Senate leader McConnell to decide whether to bring the nominee forward to the Senate. McConnell, and other Republicans claim the difference this year is that Republicans are in control of the Senate and the executive branch and are, therefore, doing the will of the people.
“Democrats are ‘making this far-fetched argument that somehow this is part of a vast right-wing conspiracy against the ACA.’ Sen. John Cornyn, R-Texas, a Judiciary committee member, told Politico. As for potential drama at the hearing, he observed: ‘I don’t think it’s so much about what we (Republicans) do but what they do.’”
Sen. Dianne Feinstein of California, the highest ranking Democrat on the committee, said in a statement, “Protecting Americans health care and Justice Ginsburg’s legacy is a fight well worth having and we’re doing everything we can to show just how much is at stake,” The New York Times reported.
McConnell said last week the Senate is prepared to move forward, safely, with the confirmation process.
“We’ve been operating consistent with the CDC guidelines and the recommendation of our physician since May,” McConnell told reporters Wednesday, according to a press release. “I don’t think the coronavirus is going to in any way impact the Senate’s ability to do its work.”
A newly confirmed justice will influence the outcome of key cases before the court this term and likely for decades to come. Committee members are expected to question Barrett about those issues.
It is unknown how any justice will rule on any particular case, despite assertions from both Democrats and Republicans that a confirmation will lead to a particular outcome. In the past week, the Deseret News has briefly examined a few of the issues and topics that will come before the court, noted below.
The 2020 Presidential Election
One of newly confirmed judge’s first decisions could help decide the nation’s immediate future. In the event of a contested election, the Supreme Court could be called on to decide on crucial balloting issues, especially in swing states — such as a mail-in voting procedure Republicans are currently fighting in Pennsylvania.
As a judge, Barrett doesn’t have an extensive record on voting-rights cases, though Politico points to a 2019 lawsuit that argued the threshold of signatures to appear on the ballot for sheriff of Cook County, Illinois, was higher than that of the state. Barrett opined that the need for orderly election processes justified the requirement.
Religious freedom and gay rights
This could play out on the day after the presidential election, when the court is set to hear Fulton v. Philadelphia, a case that could set a precedent for conflicts between religious practices and governmental nondiscrimination rules.
In 2018, the city of Philadelphia announced that it would not contract with foster agencies that, for religious reasons, wouldn’t allow same-sex couples to participate. Catholic Social Services and two foster parents sued the city of Philadelphia, arguing that faith-based foster care agencies cannot be required to abide by city nondiscrimination laws if they are contracted by city governments.
Barrett’s background, and her Catholic faith, suggest a justice sympathetic to the concerns of Christian groups. But Barrett’s mentor, the late Justice Antonin Scalia, was a majority vote in Employment Division v. Smith in 1990, which ruled that laws violate the First Amendment only if they target a specific religious practice, not if they simply contradict them. Barrett may hold to Scalia’s belief that the law superseding religious objections “must be preferred to a system in which each conscience is a law unto itself.”
Shortly after November’s election, the Supreme Court will hear Texas v. United States concerning the Affordable Care Act. The lawsuit, originally brought by Republican attorneys general in 2018, argues that the ACA — which established ”Obamacare” — is unconstitutional.
In 2012, the Supreme Court upheld the ACA by a 5-4 majority, deciding that the inclusion of a penalty for forgoing health insurance was not unconstitutional. “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax,” Chief Justice John Roberts wrote.
At the time, Barrett disagreed strongly with Roberts’ interpretation of the health care law. “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” she wrote in a 2017 essay for the Notre Dame Law School. “He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute.”
In May, the Court will hear a lawsuit filed by the American College of Obstetricians and Gynecologists against the Food and Drug Administration, arguing for relaxing requirements for patients to obtain abortion medication in person during the coronavirus pandemic.
Many abortion cases — including the College of Obstetricians and Gynecologists’ lawsuit —do not impact the legality of the procedure itself but rather decide issues of access.
Much of the discussion around Barrett’s views on abortion has centered on her Catholic faith, but her legal comments are instructive as well. “I don’t think the core case – Roe’s core holding that, you know, women have a right to an abortion – I don’t think that would change,” she said in a 2016 talk. “But I think the question of whether people can get very late-term abortions, how many restrictions can be put on clinics – I think that would change.”
Voting Rights Act
One new case could change the Voting Rights Act of 1965, a landmark civil rights law. Last week, the court decided to hear Brnovich v. Democratic National Committee, to determine whether an Arizona “ballot harvesting ban” and other voting policies violate the act or the 15th Amendment by disproportionately or intentionally affecting racial minorities. The ruling could affect how governments navigate the tension between voting access and integrity.
One of Barrett’s previous cases might be instructive. In 2019, as a judge on the U.S. Court of Appeals for the 7th Circuit, she heard Acevedo v. Cook County Officers Electoral Board. The plaintiff had been kept off the ballot for county sheriff after meeting the state’s requirement of 5,000 signatures but not the county’s higher threshold. He sued, arguing the county’s requirement was unconstitutional given its conflict with the state. Barrett ruled with the majority in favor of the county.
In 2018, the city of Baltimore sued 26 companies over the costs of climate change, joining a surge of city and state governments taking similar action. They want their cases heard in state court, where they believe they have better odds; the companies prefer federal court. Last week, the Supreme Court agreed to determine how appeals courts decide where such climate change lawsuits are heard, according to The Washington Post.
Barrett’s short tenure as a federal judge hasn’t offered much insight into how she may rule in cases of legal jurisdiction. But her mentor, the late Justice Antonin Scalia, built a reputation for being sympathetic to the autonomy of state and local governments. Barrett has contributed scholarly articles on the history of court jurisdiction to encyclopedias on judicial history and policy; this case will be an early indicator of where her own views lie.