By Christopher Tan (PZ ’21)
Regardless of the results of November’s election, Donald Trump’s legacy will extend far beyond his first term. He has appointed hundreds of judges in America’s lower districts and circuit courts throughout his presidency. And most recently, for the third time in four years, he has nominated his pick to the Supreme Court. He ought to consider himself lucky. His predecessor only appointed two judges to the Supreme Court bench during his eight years in the White House. Amy Coney Barrett’s nomination, which is looking increasingly likely, affirms the imposition of conservative jurisprudence for decades to come.
To say that the selection of Barrett to replace the seat held by the late Ruth Bader Ginsburg, a liberal stalwart of the Court, pleases many conservatives is an understatement. Should the Republican-controlled Senate confirm her nomination, as they are expected to, the conservative wing of the Court will hold a 6-3 majority over decisions. While it is hard to predict how any nominee acts on the bench, Barrett’s ideology is reliably conservative. As a law student at Notre Dame, she clerked for Justice Antonin Scalia, an intellectual anchor of the Court’s conservative wing, and won the school’s top teaching prize three times. Like Scalia, Barrett is a stringent devotee of originalism, a legal theory which calls for interpreting the Constitution based on its original understanding. She has praised Scalia, and even called him her mentor. In her opening statement to the Senate Judiciary Committee at her confirmation hearing, Barrett stressed how Scalia’s reasoning had shaped her jurisprudence. Such partisan views allowed her to build clout with supporters of the Federalist Society, an organization of conservatives that play an outsized role in conservative bench appointments, with the judge regularly contributing to the society’s publications.
In particular, Barrett’s views on abortion raise intrigue. In law school, Barrett was a member of an anti-abortion group, and has even written that “abortion is always immoral.” Since her appointment to the Seventh Circuit, Barrett has consistently joined rulings that granted state licenses to restrict abortions. Yet, Barrett has been prudent. In her public statements she has avoided publicly stating that she is determined to overturn Roe v. Wade, the landmark 1973 court decision that gave women the right to choose abortion. When asked about her views over the ruling during her Senate hearing, Barrett kept mum, noting, “If I express a view on a precedent one way or another, whether I say I love it or I hate it, it signals to litigants that I might tilt one way or another in a pending case.” Nevertheless, while the Court’s previous balance of justices was hesitant to roll back any protections for abortion, Barrett’s appointment may shift this calculus towards the right. This will invariably have an impact on any future abortion cases.
Barrett has also aligned herself with conservatives on the federal bench on other matters. In 2019, she wrote of the “natural right of self-defense” regarding the Second Amendment when dissenting from a ruling that allowed states to ban convicted felons from gun ownership. In 2017, Barrett voted against re-hearing a polarizing racial-discrimination case that involved a retailer that had assigned employees to stores based on their race. Barrett’s views on immigration similarly holds the conservative line. Earlier this year, she dissented from a ruling that blocked President Trump’s “public charge” rule that denies green cards to immigrants who rely on government benefits.
On November 10, merely a week after the election, the Supreme Court will hear oral arguments in a case that seeks to overturn the Affordable Care Act. If Barrett ascends to the bench by then, the chances of a ruling that overturns the act increases. In 2017, four months before President Trump nominated her to the Seventh Circuit, Barrett criticized Chief Justice John Roberts’ decision to uphold the Affordable Care Act in an essay published in a Notre Law School journal. In the article, Barrett noted that the Court majority in the 2012 case, National Federation of Independent Business v. Sebelius, “expresses a commitment to judicial restraint by creatively interpreting ostensibly clear statutory text,” with “its approach at odds with the statutory textualism to which most originalists subscribe.”
The impact of Barrett’s appointment will have long-term reverberations. With a 6-3 conservative majority, Supreme Court rulings on cultural issues like gun rights, abortion, and immigration will veer to the right. The loss of the reliably liberal Ginsburg further shrinks the influence of the Court’s liberal wing, whose power has dwindled under Trump. Even before Ginsburg’s death, the current Roberts Court was overturning precedents with more narrow 5-4 majorities than any other modern court in American history. With Barrett, not only will the Court have more appetite to overturn precedents, the lower courts that Trump has filled with appointments over the past four years will also be willing to calibrate their actions in tandem.
Trump’s decision to nominate a Supreme Court justice weeks away from an election has drawn outrage. This is for good reason. When a vacancy came up in the buildup to the 2016 election, Mitch McConnell, the Republican Senate majority leader, rejected Obama’s appointment, noting that “the American people should have a voice in the selection of their next Supreme Court justice” and that such a “vacancy should not be filled until we have a new president.” McConnell’s commitment to filling the seat this time, in contradiction to a principle he invented four years earlier, reeks of sheer hypocrisy.
In fairness, Supreme Court nominations during election years are not unusual. Throughout history, 16 nominations to the nation’s top bench have happened in election years. Even then, no nomination has occurred this close to an election. If any precedent is set here, it is that judicial nominations are merely an exercise of power. McConnell’s Republican-led Senate has now thrice held sway over the appointment process of a Supreme Court nominee. The rationale now seems clear: as long as you have the votes, anything goes.
Amy Coney Barrett’s Supreme Court confirmation would solidify conservative oversight over American legislation for a generation. Of the eight current justices, only Stephen Breyer, at 82 years, is likely to end his term soon. Notably, Breyer was a Clinton appointee. Unless any other seats come under the appointment of a Democratic president, conservative jurisprudence will continue to reign supreme in Washington.