Justice Barrett not in Trump’s pocket
Conservatives still see her moving court to right
WASHINGTON – To hear Democrats tell it, President Donald Trump nominated Amy Coney Barrett to the Supreme Court this fall so he could destroy the Affordable Care Act and prevail in any lawsuits over a disputed election.
Two months into Barrett’s tenure, those fears look to be unfounded. But conservatives remain hopeful she will advance the cause of religious freedom, expand Second Amendment rights and cement a conservative majority on the nation’s highest court.
They have reason to be confident. As successor to the late liberal Associate Justice Ruth Bader Ginsburg, Barrett made the difference last month in a 5-4 ruling that blocked strict COVID-19 limits on religious gatherings in New York. That ruling set a precedent the court since has applied in California, New Jersey and Colorado.
But the former federal appeals court judge and law school professor, 48, has kept a low profile since joining the court a week before Election Day, leaving few clues to what kind of associate justice she will be in the decades to come.
That low profile has come amid an avalanche of high-profile cases and controversies. In her second week, the court heard a major case balancing religious liberty against gay rights. The next week brought the third major high court challenge to the Affordable Care Act in eight years.
The justices also have been forced to address a range of emergency petitions challenging President-elect Joe Biden’s victory, state coronavirus restrictions and pending executions. Last week, they put off a final decision on the Trump administration’s effort to exclude undocumented immigrants from the census count used to apportion seats in Congress.
“She jumped in right in the middle of things. It must have been very, very challenging,” said Ed Whelan, president of the conservative Ethics and Public Policy Center.
Barrett also faced scrutiny because she was replacing Ginsburg, a liberal icon who fought a valiant battle against pancreatic cancer in hopes of outlasting Trump’s presidency. Barrett’s was the first nomination in nearly 30 years to change the court’s ideological balance, and based on Biden’s election, it came in the nick of time for conservatives.
“Your confirmation may launch a new chapter of conservative judicial activism unlike anything we’ve seen in decades,” Democratic Sen. Chris Coons of Delaware warned during Barrett’s confirmation hearing.
So perhaps it was not surprising that Barrett, an Indiana resident who teaches at Notre Dame, spent her first weeks on the court immersed in the details of the cases on its docket rather than seeking out public attention.
“She’s kind of keeping her head down and doing the work,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center, which opposed Barrett’s confirmation. “She has followed the usual rookie justice playbook by sticking to the case at hand and being very studious in the way that she presents her questions.”
Not Trump’s ‘pawn’
While keeping her head down, Barrett has shown some indication that she may not be the Trump sycophant Democrats warned she would be – and she swore she would not be.
“I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide the election for the American people,” she said during her Senate confirmation hearing in October.
At the same time, she has not bowed to Democrats’ suggestions that she recuse herself from major cases involving the president.
In the Affordable Care Act case, the Trump administration agreed with Texas and other conservative states that the entire law should be struck down because its tax penalty was eliminated in 2017. Barrett wondered aloud why Congress would seek to eliminate the law, rather than just the tax.
“It would be odd for us to construe this statute as Congress saying, ‘Well, we’re going to change the statute in a way that’s going to render it ... unconstitutional,’ ” she said, paraphrasing the government’s theory.
Democrats’ other main concern in the confirmation process was Trump’s expressed desire to have Barrett seated in time to decide election disputes. But when that time came this month, neither Barrett nor the president’s two other nominees, Neil Gorsuch and Brett Kavanaugh, bailed him out.
The court refused twice to let Trump’s state and federal allies, with his support, challenge election results in four battleground states crucial to Biden’s victory. In a case brought by Texas, the justices said the state “has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections.”
While Trump was despondent, many conservatives were not.
“I never thought that she was being put on the court to strike down the ACA or to save Trump in an election dispute,” said John Malcolm, who heads the conservative Heritage Foundation’s Institute for Constitutional Government.
On another Trump priority pending at the court, Barrett noted during oral argument that the president’s effort to exclude undocumented immigrants from the census count used to apportion seats in Congress was unprecedented. Still, she sided with conservatives in waiting to see if the policy has any effect, rather than striking it down now.
“You concede that illegal aliens have never been excluded as a category from the census?” she asked Acting Solicitor General Jeffrey Wall.
Principles and rules
Barrett’s apparent skepticism about the Trump administration’s positions on the census, health care and the election pale, however, compared to the promise she holds for conservatives who distrust Chief Justice John Roberts and have longed for a 6-3 majority.
For evidence, they look no further than the Thanksgiving eve ruling that elevated the constitutional guarantee of religious freedom above states’ pandemic precautions. Thanks to Barrett, the new conservative majority ruled 5-4 that New York Gov. Andrew Cuomo’s limits on houses of worship in hard-hit regions violated the First Amendment’s Free Exercise Clause.
“Even in a pandemic, the Constitution cannot be put away and forgotten,” said the unsigned majority opinion, which some court watchers theorized Barrett had written.
Conservatives are equally confident that Barrett will be part of a Supreme Court majority that rules Philadelphia cannot require religious providers of social services to place foster children with same-sex married couples.
Even so, Barrett indicated during oral argument she might not go so far as to endorse overruling a 30-year-old court precedent written by her mentor, the late Associate Justice Antonin Scalia, that said states can require religious objectors to abide by neutral and generally applicable laws.
Richard Garnett, director of the Church, State and Society program at Notre Dame Law School and a friend of Barrett’s, said she sticks by legal principles in the face of political forces.
“There are judicial conservatives that are judges, and one of the things it means … is to follow principles and rules and not care about whether the government wins or someone else wins,” Garnett said.
No ‘rookie reticence’
One of Barrett’s principles is the sanctity of the Second Amendment right to bear arms, which Associate Justice Clarence Thomas has lamented is a “disfavored right” at the high court.
In a dissent on the U.S. Court of Appeals for the 7th Circuit, she wrote that nonviolent felony offenders should retain their right to firearms possession. Two cases raising that issue may be considered by the high court soon.
“These are very promising cases for gun rights advocates,” said Adam Winkler, who specializes in gun policy at UCLA School of Law. “One of these cases is likely to be a vehicle for the Supreme Court to expand Second Amendment rights.”
And then there is the holy grail of Supreme Court issues for many conservatives: abortion. Before becoming a judge, Barrett vocally and in writing opposed the 1973 Roe v. Wade decision legalizing abortion nationwide.
The high court in June struck down state restrictions on abortion clinics for the second time in four years, signaling that its conservative shift under Trump had not eliminated a deep split over abortion rights. In that case, Roberts sided with the four liberals, though he differed on the reasoning. Since then, Barrett has replaced Ginsburg.
Other cases challenging abortion rights are at the court’s doorstep, including one from Mississippi that would ban most abortions after 15 weeks of pregnancy. The court has put off deciding whether to hear that case.
For now, conservatives who cheered Barrett’s ascendance to the court have been content to wait and watch, even as the justices refused to hear Texas’ effort to overturn Trump’s losses in key states.
“The fact that the court didn’t take that case does not make me overly concerned about Amy Coney Barrett’s future jurisprudence,” Malcolm said. “I don’t think we’re going to have any rookie reticence on the part of Justice Barrett.”