Donald Trump’s nomination of conservative jurist Amy Coney Barret to the increasingly partisan Supreme Court has spared a deep confirmation battle. Many are contesting whether Americans’ having a stake in the decision requires waiting until the presidential election. Nonetheless, the Senate Judiciary Committee will begin hearings on October 12th. What would a potential confirmation of a nominee with strong conservative jurisprudence mean for pending Supreme Court cases affecting millions of Americans like the ACA? How would Judge Amy’s personal convictions influence the appearance of impartiality Supreme Court justices strive to uphold? A look into the former Scalia clerk’s pro-gun, Bush v Gore, anti-ACA, immigration, and contraception views offers a glimpse into what the future of a conservative court would bring.
Judicial Advocacy v. Impartiality
The very nature of the life-time appointment of the role is meant to shield SCOTUS justices from political influence and bias. But legal realists have established that politics substantially seeps into the courts. We’ve known for decades that when casting a pivotal vote, appearance of impartiality is all that really exists. Liberal justices are more likely to vote liberally while conservatives are more likely to vote conservatively compared to cases of non-pivotal votes.
America’s legal founders prescribed a non-partisan court with little influence on major political events. The Constitutional Convention of 1787 debates and prescriptions for judicial power in Article III of the Constitution did not intend for the Supreme Court to actually become supreme but rather, delegated that power to Congress. The founders did not intend to create supreme sovereignty in the most unrepresentative body of government.
Judge Barret’s Views: ACA, Bush v Gore, and Reproductive Law
Federal appellate judge and former law clerk to the late Justice Scalia Amy Coney Barret has energized Trump’s conservative base because of her well-documented writings on law. Her views fall in line with Trump’s requirements for a nominee — opposing Roe v. Wade and the Affordable Care Act. Judge Amy has also strongly criticized the Obama administration’s rule that required religious employers to provide a full range of contraceptives to their female employees. Amy Coney Barrett even served on the team that represented Bush in the 2000 recount battle against Al Gore that won him the presidency.
She has stated that if confirmed, she would follow in the footsteps of Scalia, “His judicial philosophy is mine, too.” Her confirmation would lock in a 6-to-3 conservative majority on the Supreme Court. After the super-spreader Rose Garden event, it is uncertain whether she will be confirmed so close to an election.
The court is scheduled to hear the Affordable Care Act case on November 10. With an Amy Coney Barrett confirmation, the SCOTUS would throw out the ACA, gut protections for those with preexisting conditions and slash coverage for lower-income individuals. This is a death sentence for thousands who rely on the act. Her opposition to the ACA is well-documented. As a professor, she wrote In an early 2017 law review essay criticizing Chief Justice John Roberts’ rationale that saved the Affordable Care Act in 2012. “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power.”
Immigration and Her Public Charge View
In June 2020, she dissented from a 7th Circuit panel that supported a US district court decision to temporarily block a Trump policy that disadvantaged green card applicants who apply for any public assistance. The battle was over immigration regulations over when an applicant is deemed a public charge and ineligible for permanent residency in the US. Barrett wrote that the Trump administration’s interpretation of the relevant “public charge” law was not “unreasonable.”
Guns: Siding With a Felon On Their Right to Possess Arms
Judge Amy has expressed a fervent and broad support of. Her interpretation of the 2nd Amendment was documented as she, dissenting from her two conservative colleagues, sided with a plaintiff who claimed his serious felony conviction should not have prohibited him from possessing firearms. Thereby, taking an outlier approach to Second Amendment analysis that no federal appeals court has. Judge Amy also endorsed a gun lobby-backed interpretation of a 14th century English firearms law. Her salient views even earned her the praise of the NRA on her record and endorsed her confirmation.
Judge Barret’s views could have serious consequences on gun safety in the US where gun violence is a major problem. The US is 5% of the population yet responsible for 31% of global mass shootings. Since 1996, 167 of mass shooters’ weapons were obtained legally, yet somehow keeping guns out of the hands of criminals has become a partisan issue costing endless lives. A conservative majority could rule background checks on all gun sales, a policy supported by over 90% of American voters and gun owners, unconstitutional. Red flag laws are also at stake.
McConell will move the nomination forward despite the recent spread of coronavirus among Senators after the Rose Garden nomination event.
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