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Justice Amy Coney Barrett is here.
Just weeks after the death of the trailblazing feminist Justice Ruth Bader Ginsburg, Senate Republicans successfully confirmed Barrett as the latest associate justice of the U.S. Supreme Court Monday night. But now that the vicious battle over whether to confirm Barrett is in the rearview and she’s been sworn in, the real work can begin.
Barrett has a busy couple of weeks ahead of her. Not only could she have to contend with—or even help decide—the outcome of the 2020 election, but over the next couple of weeks, she’ll face a flurry of cases that touch on some of the most divisive issues in American life: abortion, healthcare, and LGBTQ rights.
Barrett is a devotee of originalism, which means she seeks to interpret laws using their meaning at the time they were passed—a judicial philosophy championed by the legendary conservative Justice Antonin Scalia, who Barrett once clerked for. Although Barrett has stressed that she’s not a Scalia clone, her ascension to the nation’s highest court guarantees conservatives a reliable 6-3 majority.
And that majority could last for decades. President Donald Trump’s other two nominees to the high court, Justices Neil Gorsuch and Brett Kavanaugh, are in their 50s. Barrett is just 48.
Supporters of abortion rights have worried for years about the survival of Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide. And now, with Barrett on the bench, the ruling may be closer than ever to being overturned.
The justices have agreed to consider whether to take a case called Dobbs v. Jackson Women’s Health Organization on Friday, less than a week after Barrett’s confirmation. That case comes from Mississippi, which has passed a law to ban abortion after just 15 weeks of pregnancy. That law has been halted by legal challenges, but in its July petition to the Supreme Court, Mississippi made it clear that it wanted to use the case to challenge Roe itself.
That petition asked the justices to consider “whether all pre-viability prohibitions on elective abortions are unconstitutional.” Roe legalized abortion until the point of fetal viability, which is generally dated at around 24 weeks of pregnancy. If Mississippi succeeds in limiting abortion after 15 weeks, that would likely open up the floodgates for other conservative states to do the same—and potentially enact pre-viability bans even earlier in pregnancy.
Although the justices have already scheduled a conference to debate Dobbs three times, it only takes four justices’ agreement for the Supreme Court to officially decide to review the merits of a case. Now that Barrett has replaced Ginsburg, an ardent defender of abortion rights, the conservative wing of the Supreme Court is that much closer to having the votes it needs to take up Dobbs.
Barrett has repeatedly indicated that she personally opposes abortion, although she’s emphasized that her personal views are separate from her judicial rulings. (That was also the party line among Republicans during the confirmation fight.) Barrett also largely avoided answering questions about abortion in her confirmation hearing, to the point that she refused to say whether Griswold v. Connecticut—the 1965 Supreme Court case that let private couples secure birth control and paved the way for Roe—was correctly decided.
She even refused to answer when Democratic Sen. Sheldon Whitehouse, from Rhode Island, asked Barrett in a written question, “Under an originalist theory of interpretation, would there be any constitutional problem with a state making abortion a capital crime, thus subjecting women who get abortions to the death penalty?”
Voting rights and the 2020 election
Election laws in battleground states across the country are still in dispute, just days ahead of Election Day and despite the fact that millions of Americans have already voted. And three voting-related cases have already either made their way to the high court or could come before the justices soon.
The Supreme Court has already committed to hearing oral arguments in Brnovich v. Democratic National Committee, which was consolidated with Arizona Republican Party v. Democratic National Committee. These cases address the legality of Arizona measures that ban “ballot harvesting” by limiting who can collect and return people’s ballots, as well as requiring that people vote at their assigned precincts or risk invalidating their provisional ballots.
The Democratic National Committee, which challenged the measures, triumphed in a lower court. That court found that the measures violate the section of the Voting Rights Act that protects against racial discrimination because they disproportionately impact racial minorities’ ability to vote. But the Arizona Republican Party and Arizona’s attorney general argue that the measures are both common and race-neutral and asked the Supreme Court to step in.
A date for oral argument has not been set in that case.
Republicans in Pennsylvania and North Carolina have also asked the Supreme Court to weigh in on the rules around mail-in ballots. On Monday, the Supreme Court already rejected a Democratic challenge to mail-in voting in Wisconsin that sought to extend the deadline for receiving ballots that had been postmarked by Election Day.
If the results of the 2020 election lead to any legal disputes, that case will almost certainly land in front of Barrett and the rest of the Supreme Court justices, too.
The day after Election Day, the Supreme Court will hear arguments in a major case involving religious liberty and the rights of same-sex couples. That case, Fulton v. City of Philadelphia, dates back to 2018, when Philadelphia blocked Catholic Social Services from placing children in foster homes because the organization refused to license same-sex couples as foster parents.
Catholic Social Services sued, arguing that placing children with same-sex couples violated its religious beliefs. This case will be especially fraught for Barrett, who’s drawn controversy for her own religious beliefs and her comments about LGBTQ people.
A devout Catholic with ties to a religious group whose leader has said it would expel people who act on same-sex attractions, Barrett claimed during her hearing that she’d never discriminate based on “sexual preference.” That phrase set off alarm bells among supporters of LGBTQ rights, who said it echoed homophobic rhetoric that portrays sexual orientation as a mere choice—rather than a key, unchangeable part of someone’s identity.
Although Barrett later apologized if she’d offended anyone with the phrase, she also declined to say whether she believed someone’s sexual orientation is an “immutable trait.”
“Insofar as it is relevant to the disposition of legal questions, it would not be appropriate for me to opine on the immutability of sexual orientation,” Barrett wrote in response to questions penned by senators after her hearing. “As I said at my hearing, however, I do not mean to imply that sexual orientation is not an immutable characteristic.”
Barrett also said during the hearing that she did not know that the Alliance Defending Freedom, a conservative Christian group that runs a program where she repeatedly lectured, has tried to criminalize homosexuality. The Southern Poverty Law Center has declared the ADF an anti-LGBTQ hate group.
The Affordable Care Act
California v. Texas challenges the Affordable Care Act, also known as Obamacare, and Democrats wanted all eyes on the case during Barrett’s confirmation hearing. Set to be heard by the Supreme Court on November 10, just a week after the election, California v. Texas could hand the justices the chance to strike down the health care law, which protected people with pre-existing conditions and expanded Medicaid eligibility for low-income adults, among a host of other sweeping changes.
Getting rid of it could leave up to 23 million Americans without coverage, an analysis from the liberal Center for American Progress found.
The case largely turns on the constitutionality of Obamacare’s individual mandate, which requires that most people maintain some level of health insurance or else pay a penalty. In 2017, the Republican-controlled Congress set that penalty at zero dollars. In 2018, 20 red states sued to strike down the entirety of the Affordable Care Act, arguing that Congress’ action had rendered the law unconstitutional. (Two states left the lawsuit in the wake of Democratic victories in the 2018 election.) The Trump administration has sided with the states, while 17 other states and the House of Representatives have joined the case to defend Obamacare.
The Supreme Court could decide to only strike down the individual mandate, which, according to an analysis by the Kaiser Family Foundation, would lead the Affordable Care Act to remain essentially the same. But if the justices decide that most or all of the health care law must go, that ruling could affect “nearly every American in some way,” the foundation found.
If you’re feeling a sense of déja vu, you’re not crazy: This case marks the third time that the Supreme Court has evaluated Obamacare. In both of the previous cases, the Supreme Court left most of the landmark law in place. In January 2017, Barrett, then a law professor, wrote a book review that seemed to criticize those decisions.
“Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” she wrote of one case. In May 2017, Barrett was nominated to serve on the U.S. Court of Appeals for the 7th Circuit.
That criticism—and the fact that Barrett was elevated to the federal judiciary relatively quickly after making it—has led Democrats to worry that she’ll be more than willing to demolish the Affordable Care Act. Despite extensive grilling on the subject during her hearing, Barrett refused to talk about how she may rule in any future Obamacare case but said she’d never made any kind of deal with Trump about the act.