Doing some commentary over the weekend about President Trump’s nomination of Judge Amy Coney Barrett to the Supreme Court, I was struck by not just the emptiness but the outright deceptiveness of the three main Democratic lines of attack against her. These are early days, so perhaps Barrett’s opposition will find something of substance that gains some traction. For now, the main salvos against her are frivolous:
(1) President Trump has a litmus test for nominees, who must take predetermined positions that support his policy agenda; (2) Relatedly, Judge Barrett will “destroy” the Affordable Care Act, consideration of which comes up on the Supreme Court’s oral-argument docket the week after Election Day; and (3) Barrett, a devout Catholic, is on a crusade to overturn Roe v. Wade (1973).
I will take these in order.
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1. Litmus Test
There is no evidence that President Trump has imposed a litmus test on judges whom he would nominate to the Supreme Court. That Democrats say there is a litmus test, tirelessly, on every media platform available to them, is not proof of anything other than a campaign to drive a fact-free political narrative into the public’s consciousness. Specifically, there is no evidence that Judge Barrett, in order to be nominated, had to agree to take the Trump administration’s position of staunch opposition to Obamacare and abortion. As I noted on the Corner earlier today, it is not unusual for Trump-appointed judges to rule against the administration.
Nor is there any indication that Judge Barrett would be amenable to a litmus test. Consistent with her personal character, scholarship, and jurisprudence, as well as the example of her mentor, Justice Scalia, Barrett emphatically rejects the premise that it is the judge’s role to impose policy preferences — whether the judge’s or anyone else’s — on the nation. She has demonstrated that she believes the judge’s task is to decide issues that arise in litigation based on the applicable law as it was understood at the time of its adoption, guided by the law’s text and judicial precedent. If Barrett is confirmed, she will confine herself, as she has done on the Seventh Circuit, to resolving the cases that come before her in such a manner. That is a hard enough job to do faithfully without looking for dragons to slay.
2. Eradicating Obamacare
The notion that Judge Barrett, or for that matter the other Trump appointees to the Supreme Court, are on the warpath against the Affordable Care Act is laughable. The ACA issue is being contorted into a convenient political talking point in the stretch-run of a presidential campaign because President Trump, foolishly and reportedly against the advice of Attorney General Barr, has supported a weak legal challenge to the law. The case is California v. Texas, and the justices are scheduled to hear arguments about it on November 10.
In my view, this is a rare case of conservative judicial activism, which itself is very unconservative. That is, Texas federal district judge Reed O’Connor, who is a fine judge, erred in this case by doing what conservatives properly fault liberal judges for doing: He imposed a policy preference, rather than deciding the case in accordance with the law and leaving policymaking to Congress.
In 2017, with Republicans controlling the House and Senate and with President Trump’s support, Congress zeroed out the penalty for non-compliance with the Obamacare individual mandate. Notwithstanding scores of proposals to “repeal and replace” the ACA, Congress did not do so; lawmakers left the remainder of the complex legislative scheme in place.
Even so, 18 attorneys general from red states, aping the destructive practice of their blue state counterparts, filed a lawsuit theorizing that Congress had implicitly done what it had actually declined to do, namely, repeal the ACA. Essentially, the red-state AGs (a) pointed out that the Supreme Court (thanks to the legerdemain of Chief Justice Roberts) had upheld the ACA as a tax in the 2012 case of National Federation of Independent Businesses v. Sebelius (NFIB); (b) asserted that this rationale for upholding the ACA is no longer valid because Congress’s 2017 zeroing out of the penalty (in the Tax Cuts and Jobs Act) means the mandate cannot be a tax, there being no tax without a penalty; and (c) therefore argued that, since the mandate was so central to the ACA, the entire ACA must fall. For standing purposes, the 18 states were joined by two individuals alleging concrete harm, and were supported by the Trump Justice Department (under then-attorney general Jeff Sessions).
In late 2018, Judge O’Connor, a George W. Bush appointee, agreed with the Republican AGs that the mandate could no longer be construed as an exercise of Congress’s taxing power. Thus, he reasoned, since the tax construction was what saved the ACA from constitutional infirmity in NFIB, and since that construction is no longer justifiable after the 2017 legislation, the mandate is perforce unconstitutional. Moreover, because the mandate is inextricably tied to key components of Obamacare (including coverage of people with preexisting conditions), O’Connor deduced that it is not severable from the rest of the ACA, meaning the ACA is unconstitutional in toto.
Subsequently, the Fifth Circuit U.S. Court of Appeals affirmed Judge O’Connor’s decision that the mandate is unconstitutional. But the appellate court did not uphold O’Connor’s inseverability finding, reasoning that the issue called for a more “granular” analysis. It therefore remanded the case to O’Connor for a more exacting inquiry. California — leading a coalition of 19 states plus the District of Columbia that support the ACA — pressed for an immediate Supreme Court review, arguing that the implications for public health care were too important to abide further doubt and delay. The Supreme Court agreed to hear the case.
It takes more effort to provide that description of the litigation than to tackle the bottom line. To my mind, the only question about the Supreme Court’s resolution of California v. Texas is whether a single justice will vote to hold the whole of the ACA unconstitutional. I doubt it.
Indeed, I am skeptical that a majority of the Court will even agree with Judge O’Connor and the Fifth Circuit that the mere zeroing out of a tax is the functional equivalent of repealing it, such that the mandate, technically, is no longer a tax. Regardless, though, the Court is not going to hold that the mandate is inseverable from the rest of Obamacare. You can take that to the bank.
We can be confident that there are at least five, and probably six, solid votes for severability. Chief Justice Roberts and Justice Kavanaugh emphatically endorsed the presumption in favor of severability just last term (here and here). Justice Alito agreed with them, as did the three liberal justices remaining on the Court after Justice Ginsburg’s death — Justices Breyer, Sotomayor, and Kagan — who will surely vote to preserve as much of the ACA as possible. Furthermore, I suspect Justices Thomas and Gorsuch will side with this majority — and if they don’t, their position is apt to be even more deferential to Congress. They have each suggested that the Court get out of the business of analyzing severability and simply refuse to uphold any portions of a statute found to be invalid, leaving the rest up to lawmakers. In addition, they would be very stingy about who has standing to challenge statutes based on alleged harms.
Contrary to the claim that there is a Trump litmus test that requires killing Obamacare, there is actually no reason to assume that the Trump appointees already on the Supreme Court (Gorsuch and Kavanaugh) are going to vote to invalidate the ACA. The best bet on what a Justice Barrett would do is that she would either (a) agree to follow the presumption in favor of severability that the Court has recently reaffirmed; or (b) question whether the plaintiffs challenging the ACA have standing and whether the Court should do any severability analysis relating to parts of the ACA that are not properly before the Court.
Of course, I could be wrong. Judge Barrett is very smart, and she could have an analysis that none of us Court-watchers have thought of. Still, there is no basis to believe that she is on a mission to eradicate the ACA. This is an unfounded political talking point.
Politically speaking, President Trump shot himself in the foot by ordering the Justice Department to support the red-state lawsuit. It has little or no chance of prevailing, and it makes him vulnerable to the false charge that he favors eliminating coverage for pre-existing conditions at a time when COVID-19 and high unemployment have intensified voter concerns about access to health insurance. Naturally, since one of the Democrats’ main campaign themes is that Trump is bent on eliminating Obamacare, they are telling people that getting Judge Barrett on the Court is part of that plan.
To the contrary, Barrett does not believe it is the federal judiciary’s role to make health-care policy. There is scant reason to presume that she would invalidate the ACA, and every reason to suspect she’d point out that doing so is up to Congress, which could have repealed it but opted not to.
3. Overruling Roe v. Wade
No Supreme Court appointment by a Republican president would be complete without the Left’s obligatory hysteria about the purportedly imminent demise of Roe v. Wade, that indefensible exercise in judicial lawlessness whose atrocious consequences include the deaths of millions of unborn children. Once again, it’s a political narrative with little foothold in the real world.
As I pointed out when then-judge Kavanaugh was nominated, the Roe argument is ill-founded. For over a quarter-century, we have been under the sway not of Roe but of Planned Parenthood v. Casey (1992). Casey gutted Roe’s reasoning, but left the judicially manufactured right to abortion intact. It also dramatically altered the arc of abortion litigation by acknowledging the interest of states in protecting public health and unborn life. Consequently, the legal fights over abortion now tend to center on regulation — i.e., does a regulation of abortion that a state enacts further the state’s legitimate interests, and does it so interfere with the availability of abortion that the woman’s right of access to the procedure is rendered illusory? The core “right” posited by Roe is not threatened by such challenges.
If a state were to try to ban abortion, that would immediately prompt a federal lawsuit challenging the law. The federal district court, being bound to apply Roe regardless of the judge’s own moral or legal views on the subject, would instantly invalidate the state provision (contrary to liberal caricature, conservative judges do not refuse to apply binding precedent, regardless of their personal feelings about it). If there were an appeal, the relevant federal appellate court would uphold Roe, and the Supreme Court would almost certainly decline to review the case. This is not a sure thing, but I suspect it is close to sure, much as I personally wish it were not.
On the other hand, in the more likely event that a state enacted a regulation that made abortion access more difficult, there would quickly be a federal lawsuit challenging the provision under Casey, not Roe. The Supreme Court decided such a case this past term, prioritizing access to abortion over state public-health regulation. Even if one assumed that a Justice Barrett would look sympathetically on state regulation of abortion, as Justice Scalia did, that would not eradicate the Roe abortion right.
Finally, let’s explore what the Left never mentions. Let’s assume, for argument’s sake and against all indicia to the contrary, the unlikely event that the Supreme Court went out of its way to overturn Roe, after nearly half a century and despite its recent emphasis on the supposed centrality of stare decisis (the doctrine of adhering to precedent). Doing so would not criminalize, much less end, abortion in the United States.
As Justice Scalia repeatedly explained, “The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so.” If Roe were overturned, the matter would be returned to the states, where it should have been in the first place — and would have been had the justices not presumptuously intervened in 1973, to the great detriment of the Court’s reputation as a non-political judicial institution and of the judicial-confirmation process.
If Roe were overruled, some very left-leaning states, such as New York and California, would enact a regime of abortion-on-demand. Some very conservative states, such as Alabama and Mississippi, would enact significant limitations on abortion or perhaps even ban it outright. But access to abortion, while more limited in some places, would not cease to exist. Would the increased burden seem intolerable to pro-abortion activists? Of course it would. Just as for those of us on the other side, who believe that abortion is the taking of innocent human life, the continued availability of abortion would seem intolerable. That is how democracy in a federalist republic is supposed to work.
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There is no Trump litmus test for Supreme Court appointees. The Court is not poised to invalidate the Affordable Care Act, with or without Judge Barrett. Roe survived 30 years of searing dissents by Justice Scalia; it will likely survive a Justice Amy Coney Barrett. And regrettably, abortion will survive no matter what happens.