Supreme Court & Obamacare: Barrett Will Not Strike Down ACA

Ever since Ted Kennedy’s “Robert Bork’s America” speech in 1987, Democrats have talked about the Supreme Court as if it were a legislature that should be judged solely on whether or not it gives their desired policy outcomes. The actual written Constitution and laws that the Court interprets are, to them, merely window-dressing. Their latest argument, which we should expect to hear a lot of at Amy Coney Barrett’s confirmation hearings, is that Judge Barrett should not be confirmed because she will strike down Obamacare in the middle of a pandemic.

This is a pretense. I discussed previously why Democrats want to turn the conversation in this direction. But everyone involved in the process also knows that it is exceptionally unlikely to happen. The current Obamacare lawsuit, California v. Texas, will be heard by the Supreme Court shortly after the election. The challengers might score some victories, but the case is almost certain to leave the operational provisions of the Affordable Care Act intact. The Trump administration has not helped itself by the solicitor general telling the Supreme Court that the suit should invalidate the entire statute, but there is no reason to think the justices will bite. The little evidence we have of Judge Barrett’s thinking on the case suggests that she is unlikely to change that.

About the Author

Dan McLaughlin

Dan McLaughlin is a senior writer at National Review Online and a fellow at National Review Institute.

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Ever since Ted Kennedy’s “Robert Bork’s America” speech in 1987, Democrats have talked about the Supreme Court as if it were a legislature that should be judged solely on whether or not it gives their desired policy outcomes. The actual written Constitution and laws that the Court interprets are, to them, merely window-dressing. Their latest argument, which we should expect to hear a lot of at Amy Coney Barrett’s confirmation hearings, is that Judge Barrett should not be confirmed because she will strike down Obamacare in the middle of a pandemic.

This is a pretense. I discussed previously why Democrats want to turn the conversation in this direction. But everyone involved in the process also knows that it is exceptionally unlikely to happen. The current Obamacare lawsuit, California v. Texas, will be heard by the Supreme Court shortly after the election. The challengers might score some victories, but the case is almost certain to leave the operational provisions of the Affordable Care Act intact. The Trump administration has not helped itself by the solicitor general telling the Supreme Court that the suit should invalidate the entire statute, but there is no reason to think the justices will bite. The little evidence we have of Judge Barrett’s thinking on the case suggests that she is unlikely to change that.