If it seems like only recently that US President Donald Trump nominated Judge Amy Coney Barrett to the US Supreme Court with a maskless Rose Garden party where a horde of prominent Republicans became infected with COVID, it’s because it was — that superspreader event was a month ago, on 26th September. Since then, Barrett has been hurried through an illegitimate and undemocratic confirmation process — one of the most rushed in modern history — with multiple polls showing that a majority of Americans believe it shouldn't be happening like this. They think that, instead, the winner of the 3rd November presidential election should fill the late Justice Ruth Bader Ginsburg’s seat, which is exactly what RBG asked for before her passing, as well.
But the people’s voice has been blatantly disregarded, and the late justice’s dying wish was ignored. After a procedural vote on Sunday and amid passionate arguments from Democratic senators such as Elizabeth Warren, the US Senate voted on Monday evening with a narrow 52-48 majority to confirm Amy Coney Barrett for a lifetime appointment to the Supreme Court. And it looked like Trump wanted to hold her swearing-in ceremony at the White House on Monday night.
It’s not hard to see why Republicans, who hold a majority in the Senate, would rush to confirm Barrett so quickly. Trump is trailing Democrat Joe Biden in the polls nationally and in key swing states, and the possibility of Democrats flipping the Senate is becoming ever-more real. Senate Majority Leader Mitch McConnell even acknowledged that he is using Barrett as a desperate last-ditch grasp at power.
“A lot of what we’ve done over the last four years will be undone, sooner or later, by the next election,” McConnell said on Sunday. “But they won’t be able to do much about this for a long time to come.”
Barrett’s confirmation to the court will certainly have a long-lasting impact. For one, it ensures a 6-3 conservative majority, which has been the GOP’s plan all along. She joins the youngest third of the nine-judge body, a cohort entirely appointed by Trump; at 48 years old, Barrett could ostensibly serve for four decades.
So, what happens now?
While much of the maelstrom around Barrett’s confirmation proceedings has focused on her personal views regarding abortion, and how those views could affect the landmark 1973 ruling Roe v. Wade, her influence on the court will extend far beyond reproductive rights. As soon as 4th November, the Supreme Court will begin hearing cases with potential ramifications regarding healthcare, immigrant rights, LGBTQ+ rights, and — perhaps most crucially in the immediate term — voting rights.
“We’re in the middle of a pandemic, we’re this close to an election, and Amy Coney Barrett’s record alone should be disqualifying,” Theresa Lau, Senior Counsel of Judges & Courts, Reproductive Rights and Health for the National Women’s Law Center (NWLC), told Refinery29. “Her record before even going into the hearings, what we knew about her [already], poses a grave threat to our constitutional rights.”
Ahead, what Barrett on the Supreme Court could mean for America.
On 4th November, just one day after the US Election Day, the Supreme Court is slated to hear Fulton v. Philadelphia. In this case, Catholic Social Services (CSS) sued Philadelphia after the city said CSS could no longer discriminate against LGBTQ+ couples when placing children in foster care. A lower court ruled in favour of the city, but CSS was granted its request for a Supreme Court hearing.
Following concerning comments made earlier this month by Supreme Court Justices Clarence Thomas and Samuel Alito about Obergefell v. Hodges, the 2015 marriage equality ruling, and “religious liberty,” Barrett’s influence in what will be one of the first cases she hears on the bench could have a big impact on LGBTQ+ rights.
“Given her background, given a lot of her academic writings, you would expect that she would fall on the side of trying to protect religious freedoms versus freedom from discrimination based on sexual orientation,” Kathryn Conway, president of the Women’s Bar Association of Illinois, told Refinery29. “So, it's concerning, to say the least. The case is very interesting because it pits freedom of religion, which is what Catholic Social Services is going to claim is being infringed upon, against freedom from discrimination based on sexual orientation, which the city of Philadelphia will say trumps its requirement to have to engage in a contract with Catholic Social Services.”
On 10th November, the Supreme Court is scheduled to hear the Affordable Care Act case, which was a recurring theme during Barrett’s confirmation hearings. Trump has repeatedly promised to appoint judges who will overturn the Affordable Care Act, and he got just that with Barrett. She criticised Chief Justice John Roberts’ opinion in support of the ACA when it was first challenged in the Supreme Court in 2012, saying that Roberts had “pushed the language of the law ‘beyond its plausible meaning to save the statute,’” according to a dossier on Barrett and the ACA released by the NWLC.
When the ACA was again challenged in the Supreme Court in 2015, Barrett said the dissent had “the better of the legal argument,” according to the NWLC fact sheet.
Conservatives have tripped over themselves in an effort to paint Barrett’s career and ascendance to the Supreme Court as a feminist victory, but her confirmation is hardly a win for women.
“There are dozens of cases on reproductive rights that are steps away from the Supreme Court, and we already know that President Trump had promised to nominate only justices who would overturn Roe v. Wade,” Lau said. “And so he's really delivered that with Amy Coney Barrett.”
Lau pointed to two parts of Barrett’s reproductive rights record that were not included in the materials she turned over to the Senate Judiciary Committee ahead of her hearings. One was an open group letter, published as a newspaper ad for an organisation now known as Right to Life Michiana, that she signed in 2006 asserting her opposition to “abortion on demand,” and “defend[ing] the right to life from fertilisation to natural death,” as reported by The New York Times.
The second was an anti-abortion ad Barrett signed, according to The Chicago Tribune, which ran in the Notre Dame student newspaper and was sponsored by the University Faculty for Life group that Barrett was a member of at the time. It was undated, though the 40th anniversary of Roe v. Wade (2013) was referenced in it.
“Those are two pieces that she did not disclose to the [Senate Judiciary] Committee and are really telling of her personal beliefs, [and] also how extreme these beliefs are,” Lau said.
During Barrett’s hearings, she had the opportunity to quell Americans’ fears about how her personal beliefs might impact her interpretation of the law, but she continuously deflected on these questions instead. She deflected when asked about reproductive rights. She even deflected when asked about Griswold v. Connecticut, the case that established the right to birth control. Her choice to evade provides a fairly strong indication as to how she will rule on dozens of upcoming cases regarding reproductive rights.
“There are a lot of different ways that she can attack access to abortion and birth control,” Lau said. “She can basically chip away at Roe until it becomes meaningless. I think that is also a great danger that we have with her being on the court.”
Ratifying the ERA
The Court is likely to see a case in the near future dealing with the Trump administration’s effort to block the recently ratified Equal Rights Amendment, which would add explicit protections on the basis of sex into the US Constitution. The US is still one of the few countries in the world without this type of protection. While Barrett has not made explicit statements on the ERA, experts predict she’ll go the anti-feminist way of Phyllis Schlafly.
After Virginia became the 38th state to ratify the ERA in January, the state’s attorney general filed a lawsuit in the US District Court for the District of Columbia against the Archivist of the United States, asking the court to direct the archivist to certify the ERA as the US Constitution’s 28th Amendment.
Attorneys General in Illinois and Nevada joined in on Virginia’s lawsuit. The Women’s Bar Association of Illinois took up the cause as well.
“We joined in an amicus brief to support the attorneys’ general lawsuit trying to ratify the amendment,” said Conway. “I think if and when there is involvement at the Supreme Court level, I don't expect that Justice Barrett will be in favour of ratification. We'll see.”
This is actually the second time Trump has nominated Barrett to a presidentially appointed judicial position — and the second time he did so in a questionable way. In early 2016, President Barack Obama nominated former Indiana Supreme Court Justice Myra Selby to a vacant position on the Seventh Circuit Court of Appeals. If she’d been confirmed, she would have been only the second Black woman to serve on the Seventh Circuit.
But the Republican-majority Senate denied Selby a hearing for more than a year, leaving the spot vacant for Trump to fill — which he did with Barrett in 2017. Once appointed to the Seventh Circuit, which comprises areas of Illinois, Indiana, and Wisconsin, Barrett oversaw a case that has received relatively little coverage.
In the 2019 Doe v. Purdue, a male student who was suspended after being found guilty of sexual assault of a classmate countersued Purdue University for what he claimed was a violation of his constitutional due process rights and his contention that Purdue was motivated to discipline him because of anti-male bias, which would constitute as a violation of Title IX of the Education Amendments of 1972.
After a lower court dismissed Doe’s case in full, the Seventh Circuit, in an opinion authored by Barrett, reversed the lower court’s decision and allowed Doe to proceed with his case in full.
“One thing to flag that isn’t really addressed in Doe v. Purdue is the asymmetry that an opinion like this creates, because student victims of sexual harassment are held to a really remarkably high standard in the court,” Alexandra Brodsky, a staff attorney at Public Justice, who litigates civil rights cases concerning harassment and other forms of discrimination against students, the criminalisation of poverty, and qualified immunity, told Refinery29.
“Little procedural errors that their schools make are never going to be enough to win the lawsuit. They have to show that their school was deliberately indifferent to severe and pervasive harassment of which the school had actual knowledge. And with Doe v. Purdue, by making it so easy for specifically male students accused of sexual harassment to make out a claim, it has — I think — really warped the incentives for schools. I think a school could reasonably look at the lay of the land right now, see [Barrett] confirmed to the Supreme Court, and say, in almost every case, the best way to avoid the lawsuit is going to be to find that the complainant was false, regardless of what the actual evidence says.”
Furthermore, Brodsky said she worries that Barrett’s decision in Doe v. Purdue has disturbing implications for civil rights in general, because it takes evidence of civil rights agencies doing their jobs, and enforcing civil rights law, as evidence of discrimination against the discriminators, which demonstrates a skepticism of and hostility to the protection of civil rights, and the project of federal enforcement of civil rights, that can be so important for victims of discrimination, including sexual assault survivors.
“I worry that if...the Supreme Court were to publish an opinion like Doe v. Purdue, federal agencies could reasonably worry that whatever steps they make to stop discrimination are actually going to give a free pass to discriminators,” Brodsky said.
Many election-related lawsuits could make their way to the Supreme Court in the coming weeks, and Barrett could help decide issues including how ballots are counted in critical swing states.
“I think that's why a lot of senators were trying to focus on that issue in their questioning of her, about whether she would recuse herself from [deciding an election contested by Trump],” said Conway. “I expect that she'll definitely side with the more conservative members of the court and not be looking to expand voter protection or an ability to vote, but likely be in favour of laws that basically create hurdles to exercising one's right to vote, like some of these voter ID laws that we see in certain states.”
“The fact that this nomination has been the closest to an election in history is noteworthy,” Lau said.
Noteworthy, yes. Unforgettable and unforgivable, as well.
Republicans negotiated in bad faith when they blocked Merrick Garland’s confirmation process in 2016, and the threat of Democrats packing the courts in retaliation is one the GOP has engineered as a smokescreen to their own usurping of precedent. With Barrett’s confirmation today, the GOP has packed the court with yet one more judge who is simply out of step with most Americans’ views, but who now has the authority to shape their lives, perhaps irrevocably.
“It's actually very scary what could happen with her on the court for an additional 40 years...with a 6-3 conservative slant,” Lau said. “I think people are really starting to see the importance of the courts and of the Supreme Court in everyone’s everyday lives. I am hopeful that that is something that has come out of this fight, and the battle over the control of the courts in general — that is something that everyday people can understand and really connect to, and that is a powerful thing.”