Legal and political gurus assess nominee for the high court

Judge Amy Coney Barrett speaks after President Donald Trump announced her as his nominee to the Supreme Court. Photo: Associated Press
By News@TheU

Judge Amy Coney Barrett speaks after President Donald Trump announced her as his nominee to the Supreme Court. Photo: Associated Press

Legal and political gurus assess nominee for the high court

By News@TheU
Law and government experts give their input on Amy Coney Barrett, President Donald J. Trump’s pick for the Supreme Court of the United States.

Amy Coney Barrett, the federal appellate judge nominated by President Donald J. Trump to fill the late Ruth Bader Ginsburg’s seat on the Supreme Court, is headed toward what could be the quickest confirmation process in recent history. The Senate Judiciary Committee, which is tasked with vetting judicial nominees, will begin confirmation hearings on her nomination in two weeks, less than a month before Election Day. 

A mother of seven children who graduated at the top of her Notre Dame Law School class in 1997, the 48-year-old Barrett was actually a finalist for the Supreme Court spot that went to Brett Kavanaugh two years ago. She clerked for the late Justice Antonin Scalia and is closely aligned with the conservative judicial philosophy of her onetime mentor. 

Advocates on the far right are hailing her nomination, while Democrats fear she could roll back abortion rights and the Affordable Care Act. 

University of Miami experts in law and political science weigh in on Barrett’s potential confirmation. 

If Barrett is confirmed, the Supreme Court will operate with a 6-3 conservative majority, rather than with the 5-4 conservative majority it has had for a while. What are the major consequences of this shift? Will the court take on more divisive cases? Will Chief Justice Roberts no longer occasionally side with the liberal justices? 

If Barrett is confirmed, it would definitely shift the center of the court, such that Roberts—an institutionalist—may feel less pressure to maintain a balance. That is, with a decisive conservative majority, he may feel less worried that cases will look like they’ve been decided on purely ideological grounds that could go either way. Absent that pressure, he might be freer to consistently vote in keeping with his own ideological leanings. A shift on the court has consequences for the sorts of cases the court decides to hear, the justices assigned to the opinions, and the holdings of those opinions. 

—Osamudia James, professor; Dean’s Distinguished Scholar; and associate dean for Diversity, Equity, and Community at the School of Law

What effect a stronger conservative majority may have on Chief Justice Roberts’ role isn’t entirely clear. He may have fewer opportunities to play the kind of pivotal role he did in 2012 in NFIB v. Sebelius, when his vote saved the Affordable Care Act from total invalidation. In some areas, the conservative majority seems inclined to shift further to the right rather quickly and will have many opportunities to do so, regardless of what Roberts may think. For example, federal and state regulatory authority is likely to be greatly restricted on religious freedom grounds as challenges to pandemic regulations make their way through the courts. On the other hand, it’s possible that the strength of the conservative majority will incline the other five conservative justices to defer to Roberts’ inclinations in matters of timing and judicial statecraft—which is more to chip away at precedents for some time before finally overturning them. Equally important, any threat to the conservative majority in the form of a serious effort by Congress to increase the court’s membership might persuade at least some of the conservatives to heed his counsel. 

—Stephen J. Schnably, professor of law 

What affect would Barrett’s confirmation have on the 2020 elections? 

This is hard to predict because there are reasons for both sides to be activated by this SCOTUS [Supreme Court of the United States] confirmation process. That said, the Democrats have broken fundraising records after the passing of Justice Ginsburg. Moreover, psychological research suggests that humans tend to be affected more by negative events (for example, potential loss) than positive ones (for example, potential gain). Taken together then, the Democrats may gain more from the SCOTUS fight at the polls in November, but the Republicans will have tipped the SCOTUS balance firmly to the ideological right. 

—Casey Klofstad, associate professor of political science in the College of Arts and Sciences 

If Barrett is confirmed, would Roe v. Wade be in jeopardy of being overturned?  

For purposes of working U.S. Constitutional law, Roe itself does not figure much. The Supreme Court’s decision in Casey, now many years ago, supplanted Roe for practical purposes—or more precisely, the undue burden test framed by the three-justice plurality opinion in that case (a very divided court, obviously) became and has remained the starting point for 14th Amendment review of state regulation of abortion access. See, for example, the Louisiana case decided this summer. The undue burden tests have survived a long time because it can be readily adjusted to increase or relax the meaning of the terms “undue” and “burden.” If it were Judge Barrett’s belief that access to abortion procedures should often be closely regulated, she would align herself with justices who think much the same way. In states in which legislatures wish to regulate abortion access strictly, women seeking abortions would therefore confront greater obstacles and, in some cases, give up the effort. What would happen to the children (and to the now-mothers) would become an important question but one which the Supreme Court may not find itself ready to address even if Judge Barrett has joined the court. If this is the way things work out in fact, the abortion controversy would not disappear, but state approaches might be seen to differ considerably vis a vis each other, maybe raising issues about residence requirements and the like. 

Patrick O. Gudridge, professor of law and Dean’s Distinguished Scholar

In what other types of cases would Judge Barrett be likely to wield influence?  

In all sorts of cases maybe. Justices work with other justices—four justices have to agree to hear a case (most of the time) in order for the Supreme Court to declare itself willing to take jurisdiction. Five justices, obviously, have to agree at least as to result if there is to be an actual Supreme Court decision—usually. Many cases do not straightforwardly fit with what we understand to be the politics of individual justices. Ad hoc groupings of justices may therefore come together and fall apart. If Judge Barrett joins the court, her impact might well depend on which cases are before the court and what her various colleagues think in particular. Usual labels of justices as “sopranos” or “altos” or “counter-tenors,” for example, might not fit—and only Justices Scalia and Ginsburg would know what these terms have to do with American law anyway.

Even in cases that fit within usual political labels we don’t know yet whether Judge Barrett would quickly become an intellectual leader—as Justice Gorsuch seems to be becoming, sometimes with surprising consequence, or which Justice Kagan seems to have become now some time ago. Judge Barrett may choose to watch and learn for several years. Or cases in which she feels strong commitments might not reach the Supreme Court right away. We just don’t know right now.

—Patrick O. Gudridge, professor of law and Dean’s Distinguished Scholar