• Urjasvi Ahlawat

A REPUBLICAN TRUMP CARD: SUPREME COURT JUSTICE AMY C. BARRETT

On 27th October, Amy Coney Barrett was sworn in as the associate justice of the Supreme Court of the United States. From 2017 to 2020, she was a circuit judge on the United States Court of Appeals for the Seventh Circuit. Right from the news of her nomination by Donald Trump to fill the vacant seat of Ruth Bader Ginsburg, several conspiracies and theories have sparked concerning Amy Coney Barrett.


Her views on certain topics contrast with the views of the person whose legacy she will carry for approximately the next forty years. The difference in the approach will not merely impact the landmark judgements but also the direction in which the Supreme Court will proceed, which is why it is important to understand Barrett’s approach in the five most important fields: Affordable Care Act, LGBTQ rights, immigration, abortion and gun control.

Affordable Care Act

Analysing the law review essay she wrote in 2017, Judge Barrett heavily criticized Justice Roberts and the decision taken in NFIB v. Sebelius and King v. Burwell in 2012. These landmark judgements upheld the Affordable Care Act (ACA) and were also criticized by Justice Scalia, under whom she clerked. Barrett believed that to save the statute, Justice Roberts acted in favour of the ACA; he ‘ pushed the ACA beyond its plausible meaning to save the statute’. In furtherance to this, she wrote ‘The measure of a court is its fair-minded application of the rule of law, which means going where the law leads. By this measure, it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result’ and that ‘Thus Justice Scalia, criticizing the majority's construction of the Affordable Care Act in both NFIB v. Sebelius and King v. Burwell, protested that the statute known as Obamacare should be renamed "SCOTUScare" in honour of the Court's willingness to 'rewrite' the statute to keep it afloat.’

On 10th November, the SCOTUS will review the 2019 case of California v. Texas which questions the legality of the Affordable Care Act 2010. This landmark judgment abolished the individual mandate which penalised those Americans who did not have health insurance, and the Justices have to determine whether it was unconstitutional or not. The conservatives have made several attempts to repeal Obamacare, however, they were not successful. In 2019, the Republican-dominated Congress voted in favour of a zero fee for not having the said health insurance, followed by which the Republican Attorney Generals filed a lawsuit claiming that the zero-fee mandate is unconstitutional. As mentioned, the Justices need to decide on its constitutionality. With Barrett’s selection, the conservative majority of the Justices is likely to vote in favour of the attorney generals; they will claim that the fee-less mandate is unconstitutional, which will lead to the abolition of ACA, leaving millions of Americans without any health insurance.

LGBTQ Rights

In the recent Barrett Nomination hearings, Barrett used the term ‘sexual preferences’ for the LGBTQAI community, which triggered them as the usage of the word preference indicates that being a bisexual is a choice, which can be, or rather, should be changed. It reflected the conservative approach towards the said community. Furthermore, when Senator Richard Blumenthal questioned her about the Obergefell v. Hodges case, which overturned the ban on same-sex marriages, Barrett refused to answer. I have no agenda. Her views align with her mentor, late Justice Antonin Scalia, who disagreed with the Obergefell decision taken by the Court. Apart from her professional career, she was associated with anti-LGBTQ+ organisations and private Christian schools which did not allow student or teachers belonging to the LGBTQ community.

On 4th November, the Supreme Court will review the Fulton v. City of Philadelphia case, which will determine whether the agencies who refuse to take care of people from the LGBTQ+ or Muslim communities should receive the taxpayer fundings from the government. The city of Philadelphia noted that two of the foster care agencies were not considering couples from the LGBTQ community as legitimate parents who could take care of the foster children, hence, eliminated them from the process of foster care services. Philadelphia strictly refused to fund or refer children to these agencies if they disagree to comply with the non-discriminatory policies of their contracts. Catholic Social Services (CSS), one of the two mentioned agencies, refused to agree with the city of Philadelphia, stating that engaging with the same-sex parents is against their religion and that the City’s conditions, which they labelled as complying to the non-discriminatory policies, is against their religion. Hence, CSS sued the City for the same.

Barrett’s confirmation will not significantly impact the decision made by the court as it was voting in favour of Fulton with a 6-3 majority. Other than making it a 7-2 majority, Barrett’s vote on this case will result in a major violation of rights of the LGBTQ community, which reflects her views and the direction in which the Supreme Court will be proceeding in the coming years.



Immigration

In her time on the 7th circuit, Barrett did not rule in the favour of the immigrants in approximately 88% of the total cases she reviewed; she ruled against the immigrants. For instance, in the Cook County v Wolf case, the public charge rule was challenged. The public charge rule, introduced by the Trump administration, stated that those immigrants who cannot support themselves financially should not be granted permanent residency. Furthermore, the ambiguity of the term ‘public charge’, which referred to the apparent illegal immigrants, was also questioned; the statute did not define the term. The Department of Homeland Security concluded that in the public charge, the alien will be referred to as someone who receives cash or non-cash benefits for more than twelve months in thirty-six months. This definition would have made it difficult for immigrants to become a permanent resident. It was anti-immigrants in nature. However, the majority concluded that the public charge rule violated the Administrative Procedures Act and penalized people with disabilities in violation of the Rehabilitation Act. Judge Daine Wood wrote an analysis of how the public charge rule was unreasonable.

On the other hand, Barrett wrote a response analysis to Judge Wood’s review, claiming that Homeland Security’s reasoning was reasonable. She gave the historical context of the originalist interpretation that at the time of the 19th century, immigrants were discriminated against based on ethnicity and nationality, which was reasonable. As she was a textualist, she believed that the interpretation of the text should be used.

On 9th November, the Court will decide on the Niz-Chavez v. Barr (2005) which is concerned with the stop-time rule. This rule provides a ‘relief from removal’ to those immigrants whose physical presence is for a long and continuous duration in the US, however, the government can prevent the accrual by sending a notice with a given time and date for the immigrants to appear before the court. It allowed the immigrants to stay in the US for a longer time. The past rulings do not confirm but allow one to analyse and speculate the decisions made by the mentioned judge in the forthcoming hearings, and analysing Barrett’s judicial philosophy, she is likely to vote against the immigrants.

Abortion

In terms of abortion, various instances in and outside her professional career reflect her views on abortion. Though she has not passed nay judgements on abortion-related cases, she has reviewed two of them. In one of the cases, the decision was made to cremate or bury the fetal remains after aborting the child, however, Barrett voted for rehearing. In a Notre Dame article she wrote in 1998, Barrett mentioned how abortion was ‘always immoral’. When questioned, she defended her statements by claiming that it was the Catholic Church teachings and that she will not let her views affect her judgements in the court. This was contradicted by her actions in 2012; she opposed the inclusion of contraceptives under the ACA plan for employers. Her statement read ‘The reason for the original bipartisan uproar was the administration’s insistence that religious employers, be they institutions or individuals, provide insurance that covered services they regard as gravely immoral and unjust’.

Overruling a landmark judgement like that of Roe V Wade will be difficult; instead, what Barrett could do is change the requirements and conditions for abortion to make it a less accessible contraceptive to the citizens.

Gun control

In terms of gun controls, Barrett has ruled over in one case only, however, that one case reflected her judicial philosophy with respect to gun control. Based on, the former was accused of mail fraud and sentenced. After serving in prison for the said number of years, he demanded his gun rights be returned to him. The Court refused. In response to the court’s decision, Barrett wrote a 37-page dissent where she defined the gun rights of the convicted felons. Believing in textualism, she gave the reference of the Second Amendment, which stated that at no cost shall the gun rights of any citizen be infringed. In furtherance to the historical context, she explained how people who committed serious crimes are the only ones who should lose their gun rights, however, those who committed a misdemeanour crime, such as domestic abuse, should be allowed to have their gun rights. In a speech she gave in Hillsdale University in 2019, she claimed that as radical as it sounded to allow felons to have their gun rights, there was no ‘blanket authority’ to violate their rights to own a gun.

Adam Winkler, a UCLA law professor, who has studied the Second Amendment rigorously and wrote a book on it Gunfight: The Battle Over the Right to Bear Arms in America noted a few observations about Barrett and gun control. He said "The opinion is very revelatory; It really shows that she has a very expansive view of gun rights, likely one even broader than Justice Antonin Scalia. Her originalist approach to the Second Amendment could throw into question a lot of newer laws on the books, from prohibitions on machine guns to so-called red flag laws in at least 20 states that allow authorities or relatives to ask for court permission to remove weapons from people who represent a danger to themselves or others.’


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