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ACB – The New Supreme

By: Nick Bonds, Esq.

Amy Coney Barrett, President Trump’s nominee to fill the Supreme Court vacancy left by the late, great, Notorious RBG, is essentially now on a glide path to confirmation. By the time you’re reading this the Senate will have voted on her appointment. Like the committee vote, the full Senate vote is expected to fall along party lines, but with some Republicans announcing their intent to vote with Senate Democrats, and Vice President Pence potentially sidelined by coronavirus among his staff, the vote may come down to the wire.

Even so, the balance of probabilities says that Judge Barrett will soon become Justice Barrett, and her appointment will go down as one of the fastest in recent memory – merely 30 days from announcement to confirmation. Judge Barrett made it through her hearings before the Senate Judiciary Committee, implacable and polite, declining to answer quite a few of the questions lobbed her way by committee members(citing the Ginsburg rule), and letting few details slip as to how she may rule in the future. Even so, her prior history on a number of the issues leave us some clues, a vague outline, of how she may approach the marquee cases soon to come before the highest court in the land.

The case casting the biggest shadow over the confirmation hearings was almost certainly California v. Texas, the most recent challenge to the constitutionality of the Affordable Care Act (ACA). That case comes down to a question of severability, essentially arguing that by zeroing out the penalty associated with the individual mandate the ACA is no longer a viable exercise of Congress’ taxing power and is therefore unconstitutional. The challengers go on to argue that the individual mandate is inseverable from the rest of the ACA, and the entirely of the law must be struck down as a result.

When asked by Senator Lindsey Graham to weigh in on the principle of severability, Judge Barrett indicated that “the presumption is always in favor of severability.” Though keeping her cards held close, Judge Barrett seems to be at least nodding in the direction of excising the individual mandate and preserving the remainder of the ACA.  

The full downfall of the ACA would have sweeping implications for the American economy and healthcare system, and this subtle indicator from the future Justice is cold comfort to the ACA’s defenders. While still a professor at Notre Dame Law School, Judge Barrett was critical of Chief Justice Robert’s rationale in previous ACA cases, writing that the Chief Justice stretched the ACA beyond its plausible meaning to save the statute. Even so, Judge Barrett participated in a recent moot court hearing of the California v. Texas case, where Judge Barret and a panel of seven other judges found the individual mandate unconstitutional but refrained from striking down the ACA in its entirety.

Confirmation testimony aside, another set of tea leaves to divine how Justice Barrett might rule is her history on the 7th Circuit. Judge Barrett’s tenure there lasted three years, and she was arguably the most conservative judge on her circuit. While Judge Barrett did lean towards the middle on cases involving labor, employment discrimination, and criminal law, her views swung hard back toward conservatism on gun, voting, abortion, and civil rights cases. Indeed, Judge Barrett’s positions on a number of those issues skew even more conservative than those of her mentor, the late Justice Antonin Scalia. Though the two also share a pronounced independent streak, it is entirely possible her positions on the Supreme Court will find room to his right.

The Supreme Court is set to hear arguments in California v. Texas on November 10, in time for Justice Barrett to take her seat. Though there appears to be a fair chance that the ACA will live to fight another day, Justice Barrett’s conservative bearing will have profound implications for future decisions over abortion, birth control, sex and gender identity discrimination, and Medicare, among others. We’ll keep our eyes on the Court, and keep you posted on how its decisions will impact employee benefit plans.

Oyez! Oyez! Oyez!