Amy Coney Barrett. A conservative judge who studied law and taught at Notre Dame. The mainstream narrative is that on Sept. 26, she was appointed to help overturn Roe v. Wade, remove the Affordable Care Act and create a path forward for the Supreme Court to decide the 2020 presidential election.
I disagree with the presumed impact of disappointment. I do not doubt her conservative leanings or evidence that suggests her position on hot-button issues. However, the Supreme Court has a way of forcing those on the bench to moderate their views. A 6-3 conservative majority is not always set in stone along party lines.
The first example comes from one of President Trump’s recent appointees, Neil Gorsuch, who has dissented from the conservatives on the bench in multiple cases. In May, Justice Gorsuch wrote the court’s opinion in Bostock v. Clayton County and stated that the 1964 Civil Rights Act’s discrimination protections applied to LGBTQ+ individuals.
Gorsuch also wrote the opinion for McGirt v. Oklahoma. This decision prevents states from charging Native Americans with crimes that violate state laws if those violations occur on historic Native American reservations. It ultimately preserved some form of autonomy for the Creek, Cherokee, Choctaw and Chickasaw nation and cemented the eastern half of Oklahoma as Native American territory.
Trump’s other appointee, Justice Brett Kavanaugh, voted with liberal-leaning justices on the Supreme Court in Apple v. Pepper. This gives consumers the right to sue Apple over potentially inflating the prices of applications on cell phones, a rare win for consumer rights against large and influential corporations like Apple.
Before Trump appointed Justices Gorsuch and Kavanaugh, it was Chief Justice John Roberts and Justice Anthony Kennedy who were the deciding votes in historical decisions on social justice and health care. In a landmark civil rights case, Obergefell v. Hodges (2015), Kennedy ruled with Ginsburg, Breyer, Sotomayor and Kagan to guarantee marriage as a fundamental right. This decision solidified gay marriage as legal on a federal level.
Justice Roberts made his mark on landmark cases as well. In National Federation of Business v. Sebelius (2012), Roberts sided with the liberal-leaning justices in upholding the Affordable Care Act. They stated that the mandate forcing those with no coverage to purchase insurance provided by the government was a legal, constitutional exercise of Congress’ taxing power.
With that being said, these four Justices voting with the liberal bloc is more of an exception than a normal occurrence. However, their occasional re-aligning proves these Justices do not necessarily hold to a strict political agenda. They are dedicated to reading, analyzing and interpreting the Constitution through their own perspective.
All previous evidence leads to the question about Amy Coney Barrett’s personal views and how they have come under strict scrutiny by progressives for good reason. In a Notre Dame magazine, Barrett wrote that “life begins at conception” and publicly supported an organization that believes in vitro fertilization, whereby an egg is fertilized by sperm outside the body, should be criminalized.
Barrett is also part of a very strict Christian organization called “People of Praise,” where members swear lifelong loyalty to their “covenant.” This puts her independence as a judge into question. As a protege of the late Antonin Scalia, she is also a staunch originalist and does not weigh the importance of recent precedents in deciding cases.
Despite all the criticism and evidence against Barrett’s record, her presence is less likely to dramatically transform the Supreme Court than many progressive voters fear. First, some of the oldest and most conservative members of the court are Samuel Alito and Clarence Thomas. If a Democrat is elected in November, there is the possibility that one or both of these Justices will make the decision to retire, leaving the opportunity for more moderate jurists to be appointed to the Court.
As for abortion, the optics of removing a right established 47 years ago and supported by a sizable majority of the American population is highly problematic. It could lead to Democratic-led states maintaining legal access to abortion care while Republican-led states criminalize the identical care. The amount of chaos and conflict that would result from the overturn Roe v. Wade should be enough of a deterrent for the court not to do so. Previously, this has been why Republican presidents who have sent their choices to the Supreme Court have never been able to prohibit abortion.
Of all the things that can tear this country apart, this Supreme Court nominee should not be voters’ highest priority. We have one of the most crucial and unorthodox elections coming in a month. Instead of spending energy on this temporary issue, spend time on getting out the vote and making sure that our democracy remains intact.
