EVERY APPOINTMENT to America’s Supreme Court ushers in “a new court”, observed Byron White, a justice who welcomed 15 new colleagues in his 31 years on the bench. But rarely does the arrival of a justice herald a transformation as dramatic as that promised by the confirmation on October 26th of Amy Coney Barrett, a deeply conservative judge, to take the seat of Ruth Bader Ginsburg, a hero of the progressive legal movement. This watershed moment recalls the rightward shift in 1991 when the archconservative Clarence Thomas succeeded a civil-rights icon, Thurgood Marshall. Like Justice Thomas, a Justice Barrett could skew the ideological balance on the court for decades.
A mere 38 days after Ms Ginsburg’s death, Ms Barrett will take up her seat amid an election tinged by a resurgent coronavirus. The Senate voted to confirm her as Donald Trump’s third appointee to America’s highest court by 52-48—a tally mirroring America’s polarisation far outside the Senate chamber. Neil Gorsuch and Brett Kavanaugh had bitter confirmations, too, but they each received crossover votes (three and one, respectively); Ms Barrett had no Democrats on her side and one Republican—Susan Collins of Maine—opposed her confirmation. With a 6-3 conservative majority, the court can dial back liberal victories won during the past few decades. Recent rulings vindicating the rights of gay, lesbian and trans people appear vulnerable, as are decades-old precedents protecting abortion rights. With a new colleague friendly to gun rights, Justice Thomas may have another partner for his mission to muscle up the Second Amendment.
In recent decades Supreme Court nominees have declined, in their colloquy with senators, to opine on subjects that may come before them in court. Ms Barrett was cagier than most. As expected, she held her tongue on whether she would honour Roe v Wade, the 1973 decision legalising abortion. But she also kept mum on the legality of voter intimidation (although Congress has made it a crime) and refused to say if mail-in voting is an important tool in this year’s election. “That’s a matter of policy on which I can’t express a view,” she told an incredulous Senator Amy Klobuchar. And Ms Barrett did not weigh in on whether a 1965 case protecting the right of married couples to buy contraceptives—a judgment that undergirds the rationale in Roe—was decided correctly. In his 2005 hearing, Chief Justice John Roberts saw no reason to keep that card close to his chest: “I agree with the Griswold court’s conclusion that marital privacy extends to contraception,” he told the committee.
Now she has been confirmed, Ms Barrett’s shrouded views will begin to come to light. On November 4th, the morning after the election, she will join her eight new colleagues to hear a conflict between religious liberty and LGBT rights in Fulton v City of Philadelphia. The case pits a Catholic foster agency that places children only with straight couples against a rule barring discrimination on the basis of sexual orientation. Fulton gives Ms Barrett the chance to reconsider Employment Division v Smith, a precedent written 30 years ago by Antonin Scalia, her late mentor and boss, that makes it difficult for plaintiffs to claim that generally applicable laws are unconstitutional if they impinge only incidentally on their religious lives.
Six days later, the court will hear California v Texas, a lawsuit that could prove fatal to the Affordable Care Act (ACA), also known as Obamacare. Democrats made much of this case in Ms Barrett’s confirmation hearings because she has spoken ill of Chief Justice Roberts’s reasoning in two previous challenges to the ACA. Yet the legal claims this time are weaker, despite the full support of the Trump administration, and there is no guarantee they will spur her to jettison a law that provides some 23m Americans with health insurance.
On October 22nd the first potential abortion battle of Ms Barrett’s tenure gained added significance hours after the Senate Judiciary Committee voted to advance her nomination to the full Senate. The case involves a ban in Mississipi on abortions after 15 weeks’ gestation, which an appeals court had blocked as inconsistent with Supreme Court rulings barring such bans before fetal viability (about 24 weeks). In their latest filing, supporters of the ban point out a split among lower courts on how to read Chief Justice Roberts’s Delphic opinion from June striking down a clinic regulation in Louisiana. The justices seem to have been awaiting Ms Barrett’s arrival to decide whether to take Dobbs v Jackson Women’s Health Organisation: they have put off discussing it three times since Ms Ginsburg’s death. If they opt to hear the case, the core of Roe could soon be on the docket.
The most immediate and fraught questions facing Ms Barrett involve the re-election effort of the president who appointed her. As the gears turned on her confirmation, the justices have been considering lawsuits shaping how the torrent of mail-in ballots in several states would be processed and counted. With few exceptions, the justices have sided with Republicans and blocked changes designed to ease voting during the covid-19 pandemic. In one case, on October 19th, Chief Justice Roberts joined his three liberal colleagues to rebuff Pennsylvania Republicans’ request to stay a state-court ruling that extended the mail-in ballot receipt deadline by three days after election day. In an extraordinary last-ditch attempt to cut the count short, the same plaintiffs renewed their plea on October 24th—apparently hoping that a soon-to-be Justice Barrett may tip the balance in their favour.
Will the 115th justice comply with Republicans’ wishes moments after settling into her seat? It seems unlikely she, or any justice, would vote to alter the rules in a battleground state with just days to go before November 3rd. Federal courts strive to avoid confusing voters on the eve of an election—let alone right as voters are sealing absentee-ballot envelopes. Ms Barrett may also opt to recuse herself from this and similar cases (including a pending challenge in North Carolina) in light of Mr Trump’s statements that the election “will end up in the Supreme Court” and that it’s “very important that we have nine justices” to look at the ballots. Though she has not committed to sitting out these cases, once in robes she may be swayed by the norm that a judge’s “appearance of impropriety” is reason enough for recusal.
Once the election is behind her, Ms Barrett’s rightward influence on the court may be more gradual than conservatives hope and progressives fear. Although the court is not shy about reversing itself on occasion, there is no precedent for erasing a constitutional right it has previously recognised. It would be a stunning about-face for the court to tell gay and lesbian couples their marriages—blessed by a 5-4 majority in 2015—are now null and void. Likewise, fully reneging on abortion rights when half of the country is pro-choice—and tens of millions of women have relied on Roe for nearly half a century—could ignite a firestorm of protest and calls to re-balance a bench that is far out of step with society.
Still, there is little doubt Ms Barrett and her five conservative colleagues will bless more restrictions on abortion, narrow LGBT rights to avoid offending religious people, strengthen the right to bear arms and curtail the autonomy of administrative agencies. With a tenure that could easily stretch past 2050, Ms Barrett has time. As an emotional Mitch McConnell, the Senate majority leader, said on October 25th, ”a lot of what we’ve done over the last four years will be undone, sooner or later, by the next election”. But the Democrats, he said, won’t be able to do much about the appointment of a trio of conservative Supreme Court justices “for a long time to come”.
Editor’s note (October 26th 2020): This article has been updated since it was first published.
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