United States | Against the flow

Amy Coney Barrett will be asked to rule on election disputes and much more

The newest Supreme Court justice cements a conservative majority even as America appears to be moving left

|NEW YORK

EVERY APPOINTMENT to America’s Supreme Court ushers in “a new court”, observed Byron White, a justice who welcomed 15 new colleagues in his 31 years on the bench. But rarely does the arrival of a justice herald a transformation as dramatic as that promised by the confirmation on October 26th of Amy Coney Barrett, a deeply conservative judge, to take the seat of Ruth Bader Ginsburg, a hero of the progressive legal movement. This watershed moment recalls the rightward shift in 1991 when the arch-conservative Clarence Thomas succeeded a civil-rights icon, Thurgood Marshall. Like Justice Thomas, Justice Barrett could skew the ideological balance on the court for decades.

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A mere 38 days after Ms Ginsburg’s death, Justice Barrett took up her seat amid an election tinged by resurgent coronavirus. The Senate voted to confirm her as Donald Trump’s third appointee to America’s highest court by 52-48—a tally mirroring America’s polarisation far outside the Senate chamber. Neil Gorsuch and Brett Kavanaugh had bitter confirmations, too, but they each received crossover votes (three and one, respectively). Justice Barrett had no Democrats on her side and one Republican—Susan Collins of Maine—opposed her confirmation. With a 6-3 conservative majority, the court could dial back liberal victories won during the past few decades. Recent rulings on the rights of gay, lesbian and transgender people appear vulnerable, as are decades-old precedents protecting abortion rights. With a new colleague friendly to gun rights, Justice Thomas may have another partner for his mission to muscle up the Second Amendment.

Now that she has been confirmed, the views Justice Barrett kept shrouded in her confirmation hearing will begin to come to light. On November 4th, the morning after election day, she will join her eight new colleagues to hear a conflict between religious liberty and LGBT rights in Fulton v City of Philadelphia. The case pits a Catholic foster agency that places children only with straight couples against a rule barring discrimination on the basis of sexual orientation. Fulton gives Justice Barrett the chance to reconsider Employment Division v Smith, a precedent written 30 years ago by Antonin Scalia, her mentor and one-time boss, that makes it difficult for plaintiffs to claim laws are unconstitutional if they impinge only incidentally on their religious lives.

Six days later, the court will hear California v Texas, a lawsuit about the Affordable Care Act (ACA), also known as Obamacare. Democrats made much of this case in Justice Barrett’s confirmation hearings because she has spoken ill of Chief Justice John Roberts’s reasoning in two previous challenges to the ACA. Yet the legal claims this time are weaker, despite the full support of the Trump administration, and there is no guarantee they will spur her to jettison a law that provides some 23m Americans with health insurance.

The first potential abortion battle of Justice Barrett’s tenure involves a ban in Mississippi on abortions after 15 weeks’ gestation. An appeals court had blocked this as inconsistent with Supreme Court rulings barring such bans before fetal viability (about 24 weeks). In their latest filing, supporters of the ban point out a split among lower courts on how to read Chief Justice Roberts’s Delphic opinion from June striking down a clinic regulation in Louisiana. The justices seem to have been awaiting Justice Barrett’s arrival to decide whether to take Dobbs v Jackson Women’s Health Organisation: they have put off discussing it three times since Justice Ginsburg’s death. If they opt to hear the case, the core of Roe could soon be on the docket.

Battles also loom involving Mr Trump’s tax returns, “remain-in-Mexico” asylum policy and plans to exclude undocumented immigrants from the census count to determine apportionment in the House of Representatives. But the most immediate questions facing Justice Barrett involve the re-election effort of the president who appointed her. As the gears turned on her confirmation, the justices considered several lawsuits shaping how the torrent of mail-in ballots in several states would be processed and counted. Moments before Justice Barrett was confirmed by the Senate, the court rejected, by a 5-3 vote, Democrats’ call to restore an extended deadline for mail-in ballots in Wisconsin. In dissent, Justice Elena Kagan said the decision “will disenfranchise large numbers of responsible voters in the midst of hazardous pandemic conditions”.

A week earlier, however, Chief Justice Roberts joined his three liberal colleagues in rebuffing a request from Pennsylvania Republicans to block a state-court ruling that extended the deadline for mail-in ballots. Federal courts should not meddle with state elections, he later explained, but neither should the Supreme Court tell state courts how to interpret their own laws. Undeterred, and in apparent hopes that Justice Barrett might tip the balance away from the chief’s position and set the deadline at November 3rd, the same plaintiffs renewed their plea on October 24th.

They were disappointed: on October 28th, the 115th justice sat out the case (she said she did not have time to review the filings) and the court unanimously rejected the Republicans’ last-ditch effort. (In a divided vote, they also turned back a similar request out of North Carolina.) Yet in a move that seems bound to flummox voters, Justice Samuel Alito, joined by Justice Gorsuch, noted that the court might just reconsider the Pennsylvania matter post-election—and hinted it could toss late-arriving ballots then. Would Justice Barrett join in such a Bush v Gore redux? She has not committed herself to sitting out these cases, but now that she is in robes, and given Mr Trump’s insistence that his nominee be seated before the election, she may be swayed by the norm that “appearance of impropriety” is reason enough for recusal.

Once the election is behind her, Justice Barrett’s rightward influence on the court may be more gradual than conservatives hope and progressives fear. Although the court is not shy about reversing itself on occasion, there is no precedent for erasing a constitutional right it has previously recognised. It would be a stunning about-face for the court to tell gay and lesbian couples that their marriages—blessed by a 5-4 majority in 2015—are now null and void. Likewise, fully reneging on abortion rights when half of the country is pro-choice—and tens of millions of women have relied on Roe v Wade, the 1973 ruling that legalised abortion on privacy grounds, over nearly half a century—could ignite a firestorm of protest and calls to rebalance a bench that is far out of step with society.

Still, there is little doubt Justice Barrett and her conservative colleagues will uphold restrictions on abortion, narrow LGBT rights in the name of religious freedom, strengthen the right to bear arms and curtail the autonomy of administrative agencies. With a tenure that could easily stretch past 2050, she has plenty of time for that.

Editor’s note (October 26th 2020): This article has been updated since it was first published.

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This article appeared in the United States section of the print edition under the headline "Against the flow"

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