THE confirmation of Amy Coney Barrett to the Supreme Court would shift the ideological balance of the court in many areas of American life.
Replacing the liberal Ruth Bader Ginsburg with President Donald Trump’s choice for justice will result in a 6-3 conservative majority in the court, which could lead to an attack on the priorities of the Democratic Party, such as healthcare and abortion.
Barrett is favoured by social conservatives for her legal record on gay marriage, abortion and women’s rights.
The judge has consistently shown a conservative stance towards certain topics and is an originalist, insisting on interpreting the Constitution as the authors intended and not adapting it to move with the times.
If confirmed in time, Barrett’s past record and ideologies could prove to be deciding factors in key upcoming court hearings.
During Barrett’s confirmation hearing on Monday before the Senate, the Democrats’ questioning zeroed in on her views on the future of Obamacare.
The Supreme Court is due to rule on the legality of the Affordable Care Act (ACA) on 10th November. The hearing seeks to strike down the health reform law’s individual mandate penalty, and by extension the entire law.
Barrack Obama’s landmark healthcare law has brought insurance to millions of people, and now many worry that Barrett’s confirmation would tilt the majority in favour of striking the act down. And with good reason.
Barrett has repeatedly called into question the ACA’s constitutionality. In 2017, she wrote a law review essay criticising the Supreme Court’s 2012 ruling which upheld the ACA’s individual mandate as a tax.
She specifically took aim at Supreme Court Chief Justice John Roberts, who served as a swing vote that ultimately upheld the law.
Additionally, Barrett lauded the late Supreme Court Justice Antonin Scalia’s opposing view in King v. Burwell, a case in which the Court upheld the ACA’s subsidies as constitutional.
Given her record on challenging the ACA, specifically the individual mandate penalty, many expect that Barrett would support striking down Obamacare when it comes before the court in November.
In keeping with her conservative and Catholic views, Barrett takes a strong anti-abortion stance, which is at the centre of support for her condemnation by many Americans.
Whilst she has not ruled specifically on abortion before, Judge Barrett has ruled in favour of restrictions on access to abortion in two cases.
In Box v. Planned Parenthood of Indiana and Kentucky Inc. the 7th Circuit voted to block a law that would mandate doctors to inform the parents of a minor seeking an abortion. Barrett joined the dissent, arguing that the law should have been allowed to take effect.
Furthermore, she called for a rehearing of an Indiana law that regulated foetal remains from abortion procedures and a separate law that banned abortions sought for reasons related to disability, life-threatening conditions, race, or sex.
As a Catholic, Barrett’s religious views are often reflected in and heavily influence her opinions and rulings. The Notre Dame alum would be the seventh member of the court to either be Catholic or have been raised Catholic, but appears to be more vocal about her faith than other members.
She also signed a 2015 statement to Catholic bishops endorsing the church’s conservative views on abortion, sexuality, and marriage.
Currently, the Supreme Court is due to hear a case regarding state-imposed restrictions on abortion-inducing medications, and many other cases related to state-imposed abortion restrictions are making their way up to the court.
If confirmed, it is expected that Barrett’s vote could tip the court towards rolling back abortion rights, even going as far as overturning the landmark 1973 Roe vs. Wade decision.
On the topic of LGBTQIA+ equality, Judge Barrett would be a stark contrast to her predecessor Ruth Bader Ginsburg. Whilst Ginsburg was a champion on LGBTQIA+ rights, Barrett’s history tells of an anti-LGBTQIA+ ideology.
Barrett defended the Supreme Court’s dissenters on the landmark marriage equality case of Obergefell v. Hodges, questioning the role of the court in deciding the case.
In her Senate confirmation hearing on Tuesday, she further refused to state whether she agreed with the 2015 Supreme Court ruling in Obergefell v. Hodges that same-sex marriage is a constitutionally protected right.
During the hearing she falsely claimed she had “never discriminated on the basis of sexual preference”, when in fact from 2015 to 2017, Barrett served on the board of trustees of Trinity Schools Incorporated, a group of Indiana private schools that in 2014 adopted a policy of barring children with unmarried parents from attending the school.
Furthermore, LGBTQIA+ rights organisations quickly pointed out that the correct term is sexual orientation, and that anti-LGBTQIA+ activists often used “preference” to falsely claim that gender identity and sexual orientation are choices.
Judge Barrett was also asked to explain links to an anti-LGBTQIA+ law firm, the Alliance Defending Freedom – an Arizona-based, conservative Christian non-profit organisation described by the Southern Poverty Law Centre as an anti-gay hate group.
Since 2011, Barrett had been paid five times to address the Blackstone Legal Fellowship, a project of the firm. In addition, the CEO and general counsel of the organisation, Michael Farris attended Barrett’s Rose Garden nomination ceremony despite claiming the two had never met.
However, in response to the questioning on her links to the organisation, Barrett said; “Nothing about any of my interactions with anyone involved in Blackstone were ever indicative of any kind of discrimination on the basis of anything.”
Just one day after the election, the court will begin to hear Fulton v. City of Philadelphia, a case that could drastically impact LGBTQIA+ rights, as it decides whether taxpayer-funded foster care agencies should be permitted to discriminate against same-sex couples. Meanwhile, Clarence Thomas and Samuel Alito, two of the courts existing conservative judges, have signalled a desire to revisit the 2015 ruling on marriage equality.
Many fear that a conservative-stacked court hearing upcoming LGBTQIA+ related cases could lead to discrimination against the community and a reversal on the 2015 decision. In response, LGBTQIA+ activists have mobilised against Barrett’s nomination.
Ahead of the hearings this week, a report by Human Rights Campaign warned that she has “demonstrated hostility toward LGBTQIA+ rights in her words and rulings”, highlighted her closeness to the late anti-LGBTQIA+ conservative Supreme Court Justice Antonin Scalia, who opposed the decriminalisation of homosexuality, and claimed that her appointment would effectively eradicate the fragile consensus in favour of LGBTQIA+ equality on the court.
The Second Amendment
Since its 2008 ruling that people have a right to keep handguns at home to defend themselves, the Supreme Court has avoided taking on new gun cases. However, if Barrett’s nomination is confirmed the court’s approach to the Second Amendment could shift.
Four current judges — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — have all called for the Court to take a more expansive approach to the Second Amendment. If confirmed, Barrett is likely to provide the fifth vote in support of this project.
In Kanter v. Barr (2019), Barrett sat on a three-judge panel considering a case brought by a former felon convicted of one count of mail fraud who claimed he had a Second Amendment right to own a gun, despite his felony conviction.
Although the majority rejected the idea, Barrett wrote a 37-page dissent, concluding that only those convicted of dangerous felonies should lose their right to keep and bear arms.
Republicans and conservative are eager to push Judge Barrett’s confirmation through before the election with the goal of stacking the court in the conservatives’ favour whether Donald Trump sits another term or not.
And understandably so, Barrett’s position at the apex of the judiciary system could shift the balance of the court’s stance on many crucial issues close to the freedom and justice of the American people.
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