News & Politics

Conservatives Should Be Careful What They Wish for in Judge Amy Coney Barrett

AP Photo/Alex Brandon

Following Donald Trump’s selection of Amy Coney Barrett to fill the vacancy on the Supreme Court, conservatives celebrated the choice. They see in Barrett a kindred spirit who would overturn Roe v Wade, destroy Obamacare, and prevent the Supreme Court from legislating from the bench.

USA Today:

Leonard Leo, executive vice president of the Federalist Society and architect of Trump’s plan to shift the court to the right, has described Barrett as having “a lot of name recognition” on the right who will have “a lot of folks” lining up behind her.

Marjorie Dannenfelser, president of the Susan B. Anthony List, an anti-abortion organization, describes Barrett as “the perfect combination”: a brilliant jurist and devout Catholic who will challenge abortion on demand from a conservative female point of view. John Malcolm, a legal expert at the conservative Heritage Foundation, called Barrett “a favorite among social conservatives.”

But Barrett is likely to surprise — and disappoint, to some extent — most conservatives, especially social conservatives. Her record shows that she’s prudent, cautious, and unwilling to go against precedent. That may be the definition of “conservative” to some, but to others who seek to make the United States less secular, and more open to people of faith, it may be a warning sign that her opinions will not always line up with her personal beliefs.

Barrett is a devout woman but has indicated in the past that her personal beliefs cannot interfere with her judicial opinions. And that spells trouble for those who would dearly love to see Roe on the dustbin of history.

Associated Press:

“I don’t think abortion or the right to abortion would change. I think some of the restrictions would change … The question is how much freedom the court is willing to let states have in regulating abortion.” — 2016 remarks on how a conservative Supreme Court could alter current law on abortion, saying it wasn’t likely to try and overturn Roe v. Wade. She said the questions the high court would be willing to address would be states’ restrictions on abortions, including how abortion clinics operate.

The high court has continuously sided with states that wish to restrict abortion. While recognizing the right to get an abortion, courts have also recognized the right of states to regulate the practice. That won’t change under Barrett. On abortion, she is a realist who sees the enormous body of law that has been built on the Roe edifice and doesn’t see how it’s possible to destroy Roe without bringing down all the law that has been made based on that decision — much of it has little or nothing to do with abortion, but rather the right to privacy.

“I think it is very unlikely at this point that the court is going to overturn (Roe v. Wade). … The fundamental element, that the woman has a right to choose abortion, will probably stand.” — 2013 lecture at Notre Dame on the 40th anniversary of the Roe v. Wade ruling.

Barrett’s legal philosophy includes the belief that following precedent serves a practical purpose as well as a legal one.

“If the Court’s opinions change with its membership, public confidence in the Court as an institution might decline. Its members might be seen as partisan rather than impartial and case law as fueled by power rather than reason.” — Texas Law Review.

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A justice must “think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach. If she is not sure enough, the preference for continuity trumps.” — Texas Law Review.

This is not good news for those wishing to get rid of Obamacare. The law has been with us for 10 years and there have been dozens of decisions by the courts that have upheld the basic character of the ACA. While opponents have successfully stripped Obamacare of its individual mandate, the attempt to overturn the entire law is problematic.

The argument is relevant because the high court will hear a case challenging Obamacare’s existence shortly after the election. It’s widely believed that the case being made by several GOP states is weak and could be tossed out by the court. At the very least, justices may choose not to rule on the efficacy of the plaintiff’s argument but rather throw the case out claiming they have no standing to bring an Obamacare suit in the first place.

Amy Coney Barrett will be a fine Supreme Court justice. How she will be received by social conservatives after a few key opinions isn’t clear.

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