Amy Coney Barrett: Health care, elections and the future legitimacy of the Supreme Court
RANJANI RAJENDRAN: With the 2020 election just days away, President Donald Trump and the Republican-controlled Senate managed to shoehorn in the Supreme Court confirmation of Amy Coney Barrett. Barrett will take the seat of the legendary late Justice Ruth Bader Ginsburg, who opened the doors for countless women through her gender rights advocacy, which Barrett will likely attempt to close.
In comparison to her counterparts, Barrett comes into the lifetime appointment with an extremely limited CV, spending a considerable portion of her professional career in academia until 2017, when President Trump nominated her to the 7th Circuit Court of Appeals. During her hearing, Barrett failed to recall more than three cases she had worked on during her short time in private practice. Even more shocking is that Barrett has never tried a case to a verdict, nor has she presented an appeal in court. Barrett mentioned in the hearing to have worked on two pro bono cases during her private practice. Yet, she failed to procure any verifiable details on these cases and the nature of her work when pressed by the Senate Judiciary Committee.
Barrett came under heavy criticism from Sen. Richard Blumenthal (D-Conn.) when claiming the 1,800 pages of documentation she provided to the Judiciary committee was comprehensive and sufficient for her 30 years of experience. In contrast to Justice Brett Kavanaugh's documentation dump of over 1 million pages during his 2018 hearings, Barrett's documentation was remarkably inadequate.
However, Barrett's limited CV and shortage of relevant documentation have been a boon for Republicans. Given her relative lack of experience in court, there is little information available for the Senate to review and virtually no opinions to inform the Judiciary committee of her ruling record. This has allowed Republicans to rush her confirmation hearing and vote just days before the 2020 election — a stark contrast from 2016, when the Senate GOP refused to consider President Obama’s appointee, Merrick Garland, 10 months away from the general election.
Barrett's lack of an adequate ruling record poses another issue regarding future decisions and the Court's legitimacy. During the second day of her hearings, Democrats heavily pushed Barrett to understand her stance on abortion rights, health care, and election law. Nevertheless, she managed to dodge the questions, even refusing to state a position on whether she would recuse herself in the event of a 2020 election dispute. This is particularly troublesome, as President Trump has consistently attacked the American electoral system, citing voter fraud and election tampering. Barrett’s dancing around the question poses a threat to how the Court will handle the issue if the margin of error for the 2020 election requires a recount or if the final results lag.
While the potential for a 2020 election fight may be imminent, Democrats have been more concerned regarding Barrett’s position on the Affordable Care Act, focusing their examination on whether Trump nominated Barrett with the intention to overturn the ACA. When questioned by Democratic vice presidential nominee and Sen. Kamala Harris on Trump’s pledge to appoint a justice that would overturn the ACA and Roe v. Wade, Barrett noted that she did not “recall seeing or hearing those statements.” Yet it was pointed out that during Barrett’s time as 7th Circuit Court appellate judge, she wrote an article rebuking Chief Justice John Robert’s favorable argument in the 2012 ACA decision.
On November 10, one week after the 2020 election, the Supreme Court will hear Texas v California, determining whether the ACA's controversial insurance mandate is unconstitutional without a tax penalty and whether it will remain intact. Based on Barrett's earlier comments in support of the dissenting opinion, Democrats will look to Justice Roberts to see if he will once again cross ideological lines in an effort to preserve the law that many Americans rely on, especially now amidst the ongoing COVID-19 pandemic.
With the Supreme Court now holding a solid 6-3 conservative majority, many leaders of the Democratic Party fear that seminal rulings surrounding abortion rights, health care, and LGBTQ rights may come under scrutiny. As the court gears up for the upcoming cases and Trump's third appointee, the Supreme Court's legitimacy and independence will hang in the balance.
Ranjani is an MBA/MPP dual degree candidate focusing on health care strategy and policy, and previously worked as a finance strategy analyst. She is an avid reader, writer, a semi-professional Indian classical dancer and vocalist, and enjoys working out in her free time.