Here’s What’s At Stake With This Supreme Court Vacancy

Courts Resources 10.16.20

By Josh Boxerman

This week, Judge Amy Coney Barrett appeared before the Senate Judiciary Committee. Chairman Lindsey Graham rushed to hold hearings on Barrett’s nomination to the Supreme Court. This is despite the Senate GOP’s failure to address the pandemic and provide relief to families and communities. Despite multiple members of the committee testing positive for COVID-19. Despite the fact that Barrett was only nominated 16 days before the start of the hearing. And despite the fact that – as of now – more than 22 million people have already voted for the president and senators they want to make this decision.

In this rushed process, it is difficult to fully comprehend Barrett’s record. This was our only chance to see a nominee interview for a lifetime position on the Supreme Court. But the hearing was not open to the public, and we’re still discovering missing records she didn’t previously disclose. The stakes could not be higher, and let’s be clear: what we already knew about Barrett is disqualifying:

Access to Health Care: While campaigning, President Trump promised that he would appoint justices to the Supreme Court who would overturn the Affordable Care Act (ACA). In Barrett, Trump has found yet another conservative extremist who passes this cruel litmus test. Barrett opined that the ACA is unconstitutional and agreed with the four dissenting justices who tried to overturn the law in King v. Burwell

Trump and 18 Republican state attorneys general are in court again seeking to overturn the ACA – and the Supreme Court is scheduled to hear that challenge on November 10. If confirmed, Barrett is expected to be the deciding vote to strike down the ACA, depriving millions of people of access to health care amidst the worst public health crisis this nation has witnessed in more than a hundred years.

Without the Affordable Care Act, we would lose the crucial improvements it made to our access to health care. Protections for 135 million people with preexisting conditions and people with disabilities and critical nondiscrimination protections are at risk. Coverage for 15 million people under Medicaid expansion and 2.3 million young people on their parents’ plans are on the chopping block. We could go back to the days when insurance companies could place caps and lifetime limits on care and charge women significantly more than men. Overall, 20 million people would lose coverage, with disproportionate harm to people of color, especially Black and Latino communities. 

Reproductive Health, Freedom, and Rights: “Automatically” overturning Roe v. Wade was another part of President Trump’s litmus test. Barrett has a decades-long record of vocal opposition to reproductive rights: she suggested in a 2003 article that Roe was “an erroneous decision” and signed a 2006 public letter calling for the end of the legal right to abortion. She protested the ACA’s requirement ensuring comprehensive birth control coverage, and is associated with groups that oppose in vitro fertilization. 

In her short time on the Seventh Circuit Court of Appeals, these views have already made it into Barrett’s jurisprudence. If given the chance to join the Supreme Court, Barrett would represent a direct threat to reproductive rights in the United States.

Voting Rights: At her nomination event and in her hearing, Barrett asserted that she shares a judicial philosophy with her mentor, Justice Antonin Scalia. Justice Scalia was among the five justices who threw out key provisions of the Voting Rights Act (VRA) in 2013, which had protected voters in many states from blatant acts of voter suppression. Scalia despicably called the VRA, one of the great achievements of the civil rights movement, a “racial entitlement.” 

Since that decision, which Justice Ginsburg famously described as “throwing away your umbrella in a rainstorm because you are not getting wet,” thousands of polling places have been shut down in areas that were formerly covered by the VRA. Many cases dealing with voter suppression are being argued in federal courts right now. Barrett, like Scalia, would be devastating for voting rights around the country. 

Rights of Working People: Barrett has ruled in favor of corporations and against working people. In one particularly disturbing case, Barrett ruled against an African-American worker whose employer involuntarily transferred him to another store. The dissenting judges who disagreed with Barrett’s unjust holding wrote that this position permitted a “separate-but-equal arrangement” where the company – AutoZone – was placing Black employees in Black neighborhoods and Latino employees in Latino neighborhoods.

Separate but equal is never equal. Especially after dozens of Trump judicial nominees refused to affirm that Brown v. Board of Education was correctly decided, it is completely unacceptable to have a Supreme Court nominee who disregards one of the basic precepts of civil rights in order to rule in favor of a corporation.

Immigrant Rights: Barrett has a record of ruling against immigrants. She dissented from her Seventh Circuit colleagues to side with the Trump administration in a challenge to its public charge rule, a harsh policy designed to penalize immigrants who utilized public services like Medicaid or food stamps. She also ruled against an immigrant seeking asylum and upheld the denial of a visa application to the wife of a U.S. citizen. 

In June, the Supreme Court narrowly prevented the Trump administration from ending the Deferred Action for Childhood Arrivals program. With Barrett on the bench, anti-immigrant extremists could have the five votes they need to open up hundreds of thousands of undocumented Americans to deportation from the only country they have ever known. 

Disability Rights: In the Seventh Circuit public charge case, the majority held that the Trump administration rule discriminated against immigrants with disabilities in particular. Barrett disagreed in her dissent. And she joined a decision that would allow for the exclusion of children with learning disabilities from school districts based on their service needs. The logic behind that decision, if applied broadly, would grant legal immunity to many egregious and discriminatory practices and the erosion of civil rights for people with disabilities.

LGBTQ Equality: In recent years, the Supreme Court has made great strides in the recognition of the rights of LGBTQ people. Marriage equality became the law of the land in 2015 due to a 5-4 decision, and this year the Court affirmed 6-3 that LGBTQ people facing discrimination in the workplace are protected by civil rights laws.

Barrett’s views on these issues place her far outside the judicial mainstream: at an event in 2016, she lamented the outcome in Obergefell v. Hodges and agreed with the four dissenting justices, and asserted her personal view that transgender people are not protected by sex discrimination provisions of civil rights laws. If allowed to link up with her ideological colleagues on the Court, two of whom stated this month that they believe Obergefell was wrongly decided, Barrett would be in a position to halt our progress, and chip away and roll back these hard-won rights and protections.

Criminal Legal System: As a judge, Barrett has a pattern of ruling for law enforcement and against defendants in criminal cases and people in prison. When the Seventh Circuit ruled to reduce a defendant’s sentence from 50 to 20 years, Barrett sided with the Trump administration’s attempt to keep the harsh sentence intact. Barrett dissented from her colleagues to side with two prison guards who had significantly injured inmates with buckshot, finding their actions to be “reasonable.” And again in dissent, Barrett found no constitutional issue with a trial judge who had ordered a defendant’s lawyer to remain silent during questioning.

Bringing fairness and dignity to our legal system is one of the most profound civil and human rights issues of our time. The unequal treatment of people of color and people who are low-income undermines the progress we have made over the past five decades toward equality under the law. Justice Ginsburg understood this. Our next Supreme Court justice must do the same.

Barrett on the bench would be devastating. But you can do something about it. 

Chairman Graham and Majority Leader Mitch McConnell are doing everything they can to confirm Barrett before Election Day so she can be in a position to side with Trump on the ACA, election-related disputes, and more. We must do everything we can to stop this unprecedented process. 

Call your senators – if they’re in the fight, ask them to do more, and if they’re not, hold them accountable. Engage with us on social media using the hashtags #OurCourt and #BlockBarrett. We are all in this together, and our rights are on the line. 

Josh Boxerman is the policy and research associate at The Leadership Conference on Civil and Human Rights.