The US Supreme Court now has a clear conservative majority, but predicting how individual justices might decide cases can be a fool’s game, writes Hayden Thorne
Donald Trump’s nominee to fill Ruth Bader Ginsburg’s seat on the United States Supreme Court, Amy Coney Barrett, has been confirmed by the US Senate in a 52-48 vote, likely securing a conservative majority on the Court for the foreseeable future.
Senate Majority leader Mitch McConnell, true to his word in the immediate aftermath of Ginsburg’s death, rammed the nomination through the Senate, despite Covid-related delays, in record time. Barrett was nominated by Trump on September 27 (NZ Time) with her confirmation occurring exactly a month later.
For reference, there were 99 days between Clarence Thomas’ nomination and confirmation, and more than two months for both of Trump’s other appointments, Neil Gorsuch and Brett Kavanaugh.
Little useful information can be gleaned from Barrett’s confirmation hearings – she avoided (quite legitimately in many cases) answering questions about how she would rule on controversial issues like abortion and the Affordable Care Act (ACA), and whatever she might have had to say on those topics could quite easily be brushed aside in her first day on the Court: once she is sworn in, there is no opportunity to remove her, regardless of what positions she takes on the Court.
Barrett is a disciple of the constitutional work of former Justice Antonin Scalia, and is considered an originalist – meaning that she believes the Constitution should be interpreted as meaning what it was understood to mean at the time it was ratified. To many operating outside of legal fields, this is something of a bizarre approach to judicial decision making – and indeed it is an approach that many legal scholars have heavily criticised (although it must be noted that there are also a good number of reputable scholars who argue in favour of an originalist approach).
Originalism is a restrictive theory, which limits judicial discretion and creates narrow constitutional rules which fall very much in line with conservative political viewpoints. Minority groups and dissenting views get very little help from originalist interpretations – so Barrett’s appointment promises plenty of bad news for many of those causes.
So, what does this all mean?
Well, for one, this might turn out to be the most consequential legacy of Trump’s Presidential term. With the appointments of Gorsuch and Kavanaugh, Barrett gives the Court a very strong 6-3 conservative majority. Of those six, Barrett will be the youngest at 48, Gorsuch is 53, Kavanaugh 55, Chief Justice John Roberts is 65, Samuel Alito is 70, and Clarence Thomas 72. The 6 could quite conceivably be on the Court together for 10 years (or more) given they are appointed for life with no retirement requirement.
Barrett’s appointment is likely to generate the biggest challenge yet to Roe v. Wade, and the right of American women to access abortions. Roe v. Wade, the 1973 decision which protects women’s liberty to access abortion without excessive restriction, is based on a constitutional right to privacy – a concept not written expressly in the Constitution. Barrett’s originalist views would suggest that such a right does not exist. There is, therefore, every chance that a Court featuring Barrett will overturn Roe and return abortion-rights decisions to individual states, with the horrendous result that abortion access will depend entirely on where in the United States a person lives.
And abortion is not the only issue likely to come before the Court. The Affordable Care Act, a signature policy of the Obama administration, is due to come before the Court shortly – and with Barrett in tow there is every chance that the Court will hold important parts of that legislation unconstitutional, much to the detriment of millions of poor Americans who do not have the means to afford proper healthcare. The only saving grace here might be that Biden has already announced plans to overhaul the ACA, which may render a Supreme Court ruling moot.
There is also, as Trump has repeatedly made clear, a very real possibility that important parts of the coming election will be decided by the courts (this is already happening – Adam Liptak for The New York Times has identified nine rulings dealing with mail-in voting, absentee voting and other issues since April – all of which have come on the Court’s shadow docket with no reasoning to support them). The Supreme Court has already butchered one election-defining decision, in Bush v. Gore (2000), and the current Court would do well to heed the criticism of that decision, which undoubtedly damaged the Court’s reputation.
Barrett’s appointment will also decrease Chief Justice Roberts’ influence on the Court – before Ginsburg’s death, Roberts had been both the Chief Justice and the swing justice, holding immense influence on the direction of the Court’s ruling. With Barrett on the Court, even where the liberal justices can persuade Roberts to join them, they will still lose any significant case without persuading at least one other justice to cross the aisle, so to speak – an incredibly difficult task to do on anything like a regular basis.
A note of warning, however – predicting the Court’s behaviour is in many instances a fool’s game – both Gorsuch and Kavanaugh have proven this in the current term, and it is not unheard of to find a justice following a very different path to that expected by a nominating President (Eisenhower, in particular, could testify to this). So, while things look pretty gloomy for minority rights and liberal legal values, the Court’s history shows the votes of justices can never be truly taken for granted.
It is also worth noting the Court very rarely deviates from public opinion on important issues – so the most effective thing liberals can do is to, first, get out and vote – and then to make their voices as loud as possible in putting pressure on the Court to at least maintain a middle-of-the-road approach.