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Amy Coney Barrett: Controversy and Implications of Her Nomination

October 19th, 2020 by David Minces

Last week, the United States Senate held hearings to decide whether to confirm Amy Coney Barrett, President Trump’s nominee to replace Justice Ruth Bader Ginsburg, to the Supreme Court. The similarities between Justice Barrett and the late Justice Ginsburg end at their use of both their maiden and married last names. Barrett’s judicial philosophy, the timing of her nomination, and the implications of her confirmation make her an especially controversial figure. In this article, we will explain the major impacts on governmental policies and procedures Amy Coney Barrett will have, whether confirmed as expected or not.

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Barrett’s background and qualifications

Amy Coney Barrett was born in New Orleans, Louisiana, and attended Rhodes College for her undergraduate degree and the Notre Dame Law School for her Juris Doctor, graduating summa cum laude. After working as a lawyer for several years, she returned to her alma mater to teach civil procedure, constitutional law, and statutory interpretation. In October 2017, she was confirmed to serve on the bench of the U.S. Court of Appeals for the Seventh Circuit, where she has sat since and has written 79 majority opinions, four concurring opinions, and six dissents.

Barrett’s judicial philosophy

Barrett’s philosophy is considered to be originalist and textualist, following in the footsteps of the late Justice Antonin Scalia, whom she clerked for. In the past, she has said of Scalia, “His judicial philosophy is mine too.” Originalism is the belief that the Constitution should be interpreted based on its original understanding “at the time it was adopted,” while textualism is the theory that laws should be interpreted based on the ordinary meaning of their text and not intent or spirit. These philosophies are generally associated with more conservative judges. Current justices who also largely espouse these philosophies include Justices Clarence Thomas and Neil Gorsuch.

Controversy regarding timing of Barrett’s nomination

Because the presidential election will be occurring next month, and because the president nominates Supreme Court justices, many believe that the upcoming  president-elect should nominate Justice Ruth Bader Ginsberg’s replacement. This would be consistent with the actions of the Senate four years ago, when Justice Antonin Scalia passed away in February 2016 and then-president Barack Obama nominated Merrick Garland to the Supreme Court. The same Senate Republicans that may confirm Amy Coney Barrett did not hold a confirmation hearing for Garland and instead confirmed President Trump’s nominee, Neil Gorsuch, more than a year later. Others argue that the Senate has the Constitutional power to hold or not hold a hearing, so the flip-flopping is inconsequential.

Foreseeable impacts of her confirmation

If Barrett is confirmed, she will replace one of the most liberal justices on the Supreme Court bench and become the sixth conservative Supreme Court justice. This leaves only three liberal justices. Some Democratic senators view this as unacceptable enough to justify increasing the number of justices on the Supreme Court, a practice known as “packing the courts” and last tried (unsuccessfully) by President Franklin D. Roosevelt.

Barrett may influence the upcoming election, for which there have already been allegations of ballot fraud and interference from foreign countries and technology companies. In addition, due to the coronavirus pandemic, there will be an unprecedented number of mail-in ballots that may cause delays in the election results. In the last contested election, that of November 2000 between George Bush and Al Gore, the Supreme Court in Bush v. Gore stopped the ballot recount in Florida. This allowed Bush to reap the electoral votes of the Sunshine State and thus the presidency. Barrett, who happened to be one of the attorneys representing Bush in Bush v. Gore, may see a Supreme Court case arise from the results of the coming election between President Trump and former Vice President Joe Biden. If this is the case, many believe that she will be biased in favor of President Trump. Barrett said during the hearings that she will not recuse herself from election-related cases.

Barrett may also have the opportunity to decide in California v. Texas, a case pitting 16 Democratic states and D.C. against 18 Republican states regarding the constitutionality of the Affordable Care Act (Obamacare). In National Federation of Independent Businesses v. Sebelius, the Supreme Court found that the individual mandate, which imposed a fine on those who did not buy health insurance, was constitutional because the fine amounted to a tax. In 2017, the Tax Cuts and Jobs Act changed the fine under the mandate to $0. Texas and other Republican states are arguing that the mandate being $0 means that it cannot be a tax, and thus it is unconstitutional. California and other Democrat states are not only arguing against this but also making the point that the idea of “severability” means that Obamacare as a whole does not need to be struck down even if the mandate portion is found to be unconstitutional. Though the U.S. Court of Appeals for the Fifth Circuit found that the individual mandate is unconstitutional in December 2019, the California side is expected to appeal the Fifth’s ruling to the Supreme Court. When questioned about California v. Texas during her confirmation hearing, Barrett insisted that she did not have an agenda against the Affordable Care Act.

While a lot of things are up in the air this election cycle, one thing is for certain–whether Justice Barrett is confirmed or not–the composition of the highest court in our land is about to fundamentally change. This change will impact how some of the country’s most longstanding precedents are interpreted and applied. The Court will soon consider cases regarding immigration, voting rights, abortion, and the Affordable Care Act. Whoever is confirmed to the Court will play a crucial role in determining the outcome of these cases. 

Minces Rankin PLLC is committed to staying up to date on legal developments to best serve our clients–from small businesses, to employees, to large corporations. Contact us if you need help navigating through a dispute or legal inquiry in these changing times.

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