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Saturday, September 26, 2020

How Amy Coney Barrett might rule


Amy Coney Barrett’s ascent to the Supreme Court is not yet assured — but it could have earth-shaking consequences for American law.

Democrats fear the 48-year-old Barrett will cement a conservative majority on the high court for a generation, rolling back
abortion rights, ending Obamacare and limiting the federal government’s power to fight climate change.

For President Donald Trump and his allies, her record over three years as a federal appeals court judge and a decade as a half as a law professor calms their fears that the current court doesn’t produce reliably conservative results — despite the presence of five GOP appointees, including two justices nominated by Trump himself.

Here’s POLITICO’s look at Barrett’s views on a series of contentious legal issues the court is expected to confront, starting within days after this fall’s presidential election:

Abortion

Barrett’s perceived hostility to Roe v. Wade has been the linchpin of media coverage of her nomination and is expected to take center stage at Barrett’s confirmation hearing next month. Indeed, while everyone on Trump’s shortlist is seen as skeptical on abortion rights, Barrett’s relatively explicit public views on the issue may well have given her the edge to receive the nomination.

A conservative Catholic and mother of seven children, Barrett has called abortion “always immoral,” although there are judges who have expressed similar personal views while ruling to uphold abortion rights.

Two years ago, in her position as a 7th Circuit judge, she voted with her colleagues who unsuccessfully urged the full appeals court to reconsider a decision striking down an Indiana law requiring burial of fetal remains.

But the confidence among social conservatives that Barrett would be a reliable voice on the court in favor of reining in abortion rights comes in large part from her approach to stare decisis — the principle that justices ought to respect the court’s past precedents regardless of whether they agree with them or consider them legally sound.

The approach brings a degree of predictability to American law, preventing fast vacillation depending on the makeup of the court, but Barrett has made clear she thinks the doctrine has been taken too far.

“If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging,” Barrett wrote in a 2013 law review article.

Many legal experts doubt that a decision overturning Roe is likely anytime soon. Indeed, it’s far from clear that either of Trump’s prior nominees—Justices Neil Gorsuch and Brett Kavanaugh—would favor such a step.

During a 2013 forum, Barrett seemed aligned with the view that Roe will endure in some form, as she declared that the landmark ruling’s “fundamental element, that the woman has a right to choose abortion,” will likely remain. “The controversy right now is about funding,” she added. “It’s a question of whether abortions will be publicly or privately funded.”

In the same forum, Barrett struck a pragmatic note: that policymakers should focus on supporting poor women in an effort to reduce the number of abortions.

Even if the court is unwilling to repudiate Roe, Barrett would likely accelerate the justices’ incremental retreat on abortion rights by voting to allow the federal government to cut off funding to groups like Planned Parenthood and by permitting a slew of additional state regulations on abortion. Those rules can dramatically limit availability of abortion by reducing the number of clinics and providers and by imposing other requirements that deter women from seeking abortions by increasing the cost and practical difficulty of receiving the procedure.

Pandemic response

With the coronavirus infections rising again in much of the country and fears high of a new winter wave of the pandemic in the U.S., states seem likely to reimpose at least some of the broad restrictions they placed on citizens, businesses and religious groups earlier this year. That, in turn, could trigger a new round of legal challenges reaching the high court.

“I think we’re in entirely new territory,” said Lawrence Gostin, a global health law professor at Georgetown University. “Covid-19 has proved to be so politically charged that we see a flood of litigation,” he added.

The court’s recent record in such cases indicates that Barrett could play a decisive role in the outcome, although where she would come down is far from clear.

Many of the lawsuits related to the pandemic are seeking emergency relief, meaning that they are coming before the justices in a matter of months, as opposed to the usual years-long timeline.

Although the court often bats away those emergency requests without comment or noted dissent, the justices divided 5-4 earlier this year as it turned aside challenges from churches in California and Nevada complaining that they were being unfairly targeted by lockdown orders.

In both cases, Roberts sided with the court’s liberals to grant broad leeway to state officials, while the rest of the court’s conservatives sharply dissented over what they viewed at second-class treatment for religion and the religious. With Ginsburg gone, the court could be divided 4-4 on such cases, making Barrett the deciding vote.

“If a justice was more inclined to read religious freedom more capaciously, that might well have come out a different way,” said Wendy Parmet, a health law professor at Northeastern University.

While Barrett’s record and her personal beliefs make clear she is sympathetic to religion, just how she would respond to lawsuits challenging stay-at-home orders isn’t clear. She hasn’t ruled in a case brought by churches or other religious groups, but she did cast a little-noticed vote in July in favor of a decision turning down a challenge Illinois Republicans brought to virus-related limits Democratic Gov. J.B. Pritzker placed on in-person political gatherings

It appears the GOP would have come up short in the case regardless of how Barrett viewed the issue, but her move to buck a Republican Party-backed suit related to the virus is worth noting.

Obamacare

If Barrett makes it to the high court before the election, she might barely have time to catch her breath before hearing arguments in what is viewed as the biggest case on the court’s docket for this term: a Trump administration-backed challenge aimed at taking down the Affordable Care Act.

Barrett hasn’t shied away from voicing how she feels about the law. She has critiqued Roberts’ 2012 compromise that preserved a key part of the Obamacare, declaring that the chief justice’s position pushed the language of the law “beyond its plausible meaning to save the statute.”

In the same article from 2017, she approvingly quotes the late Justice Antonin Scalia — whom she clerked for, noting his suggestion that Obamacare should be “renamed ‘SCOTUScare’ in honor of the court’s willingness to ‘rewrite’ the statute in order to keep it afloat.”

Barrett also signed a protest against Obamacare’s birth-control mandate on the grounds that it violated religious liberties. This summer, the justices greenlit a Trump administration regulation granting employers wide exemption not to comply with the law’s requirement for cost-free contraception for their workers. But the bench didn’t resolve all the legal questions raised by the polarizing case, and the policy is almost sure to come before the Supreme Court again.

Another Obamacare-related case where her ideas on religious liberty will come into play is the legal battle over enshrined guarantees that transgender people are entitled to gender transition surgeries and hormones and women are entitled to abortions — as is coverage through health plans and the provision of such care by doctors and hospitals. Justice Samuel Alito has already framed the issue starkly as a clash with religious freedoms.

An election showdown

If the November election turns out to be a squeaker, the Supreme Court might be asked to determine the result, just as played out in the 2000 contest between George W. Bush and Al Gore. How she and other justices would react to being pulled into the political fray is uncertain, and justices often recoil at being pigeonholed based on their political beliefs or those of the president who appointed them.

Still, past performance is some prediction of future results. And when that nightmare scenario played out two decades ago, every GOP-appointed justice sided with the ruling effectively declaring Bush the victor, while every Democratic appointee backed Gore’s stance to allow ballot counting to continue.

Of course, many other election-related issues regularly reach the court, including redistricting and voter identification laws. Barrett is a conservative who would be joining an already reliably conservative court on those issues and she’s unlikely to reach the bench in time to rule on a flurry of emergency petitions expected to arise in the coming weeks relating to changes various states have made to voting procedures as a response to Covid-19.

Climate change

Barrett’s skeptical view of stare decisis could have an impact beyond abortion rights, particularly in the area of the federal government’s power to use existing law to confront climate change.

Conservatives for years have sought to have a court revisit the limits of federal authority, preferably to rule that the current laws only allow the Environmental Protection Agency to take small regulatory steps rather than require the steep curbs scientists say are necessary to stave off the worst effects of climate change, including extreme weather and rapid sea level rise.

One potential target in a Supreme Court unfettered by its own past precedents is the 2007 ruling in Massachusetts v. EPA that found the Clean Air Act gave the agency the authority to regulate greenhouse gases. Only one of the justices in the majority in that 5-4 case, Stephen Breyer, remains on the court today, while three of the four dissenters still hold their seats.

At least two current justices have signaled interest in revisiting the climate ruling. In 2011, a unanimous court led by Ginsburg reiterated the findings of the Massachusetts ruling — but in a brief concurrence, Justices Samuel Alito and Clarence Thomas said they only voted that way because no one in the second case had challenged the underlying Massachusetts ruling, hinting at their interest in revisiting it.

They doubled down on their opposition in another side note to a 2014 ruling that again largely upheld EPA’s greenhouse gas regulatory authority. The Clean Air Act “was developed for use in regulating the emission of conventional pollutants and is simply not suited for use with respect to greenhouse gases,” they wrote.

Other members of the court’s conservative wing might prove to be allies for reconsidering the climate decision as well.

Roberts dissented from the original Massachusetts ruling. And when he considered legal challenges to the Obama administration’s Clean Power Plan in 2016 as a judge on the D.C. Circuit, Kavanaugh argued that Congress should be the branch to make sweeping climate policy, even while acknowledging the legislature failed to do so in 2010 under heavy Democratic control.

With a more conservative judge such as Barrett in Ginsburg’s seat, the court might choose to weaken Massachusetts without overturning it, said Jody Freeman, director of Harvard Law School's Environmental and Energy Law Program and a former Obama White House adviser.

“The court could more easily limit that landmark’s potential by reading EPA jurisdiction or standard-setting authority in a cramped way,” Freeman wrote in an email. That could include “interpreting provisions to require additional cost benefit analysis, taking a limited approach to the ‘co-benefits’ that come with climate rules, and otherwise making it harder for the agency to regulate greenhouse gases and other pollution.”

Reining in the administrative state

Barrett’s penchant for originalism could also drive interest on the Supreme Court of revisiting, limiting or even doing away with a controversial legal doctrine that critics contend unconstitutionally empowers regulators and federal bureaucrats — a concept known as Chevron deference.

Chevron deference seems unlikely to prompt street protests anytime soon, but demolishing the concept has become a cri de coeur for legal conservatives in recent years. Named after the court’s 1984 ruling in a case called Chevron v. Natural Resources Defense Council, the doctrine holds that when a statute about an agency’s power is ambiguous, judges should defer to the agency’s reasonable interpretation of the law.

Opponents of the doctrine argue that it ceded the authority to interpret laws from the judicial branch to the executive, including on key environmental regulations. Justices Clarence Thomas and Neil Gorsuch have both criticized the doctrine, as did Anthony Kennedy before retiring in 2018. Kavanaugh is also thought to be open to limiting it as well.

If Joe Biden wins the presidency, the issue could become a legal flashpoint as federal agencies will likely seek to push the envelope on their regulatory power.

During her time on the bench, Barrett has weighed in on just a few environmental cases. None presented the sort of broad ideological questions that offer much insight into potential Supreme Court decisions in this area.

For example, in 2018, Barrett joined a panel that found that the Army Corps of Engineers did not provide enough evidence for its decision that 13 acres of wetlands in Illinois fell under federal jurisdiction and thus blocked from development. The judges sent the issue back to the Corps to reconsider. Also that year, Barrett wrote for a panel that found a company that burns old railroad ties for electricity production is liable to pay a $100,000 fee for not offloading ties from a rail shipment fast enough.

Sexual violence/due process on campus

Barrett has staked out a fairly clear position on one contentious issue that has spurred a growing wave of litigation in lower courts: whether universities owe accused students due process protections in disciplinary proceedings related to allegations of rape or sexual assault.

In a ruling last year, Barrett found that an accused male Purdue University student should be allowed to proceed with his lawsuit alleging the school illegally discriminated against him on the basis of his gender by subjecting him to a process that effectively assumed his guilt. The judge noted that the university failed to allow the male student to present witnesses, including a roommate of his who disputed the alleged victim’s account, and that two of the three members of the school’s panel deciding punishment in the case acknowledged not reading an investigative report about the episode.

Barrett said the unnamed male student had laid out a plausible claim of sex discrimination under federal law requiring gender equity in education, Title IX. She also said he might have a viable constitutional claim that the state-run school denied him due process through procedures that violated his right to mount a defense.

The decision has been championed by lawyers for accused students, who are typically men, and regarded with suspicion by some women’s rights advocates who fear it will prompt universities to return to past practices that often gave short shrift to women’s complaints about sexual assault and sexual harassment on campus.

Criminal justice/qualified immunity

Cases involving criminal justice and police abuse tend to divide conservatives, occasionally producing strange-bedfellow alliances with liberals to limit the use of government power, rein in criminal statutes or allow recourse for alleged victims of police violence.

Barrett’s record in this area is murky, but an opinion she wrote last year gives some civil libertarians that she would be a vote to pare back the legal doctrine of qualified immunity, which is often used to toss out cases against police officers and other government officials facing civil lawsuits for alleged abuses.

Under the theory, a suit over an incident where a person’s rights were violated can nonetheless be dismissed if the actions were not “clearly established” as a constitutional violation at the time of the event. Since no two episodes are identical, the doctrine sometimes gives police and others the ability to escape legal liability based on fine distinctions between the incident and prior episodes ruled unconstitutional by the courts.

The opinion Barrett issued last year rejected a qualified immunity claim by an Indianapolis police detective accused of fabricating claims and presenting a skewed picture of a murder suspect in an application for an arrest warrant. “The unlawfulness of using deliberately falsified allegations to establish probable cause could not be clearer,” she wrote, allowing the lawsuit to proceed.

If Barrett proves more open to rulings for criminal defendants or those accusing police of abusive tactics, that could produce a significant shift on the high court, since a couple of the court’s conservatives—namely Alito and Thomas—almost always side with the police or government in such cases, while Justice Neil Gorsuch’s stance is less predictable. In addition, liberal justices like Stephen Breyer and Elena Kagan are relatively moderate in this area, making it difficult for those seeking to impose limits on the police.

If Barrett emerges on the court as a conservative open to such arguments, she’d be following in the footsteps of her mentor at the court, Justice Antonin Scalia, who occasionally joined the court’s liberals in such rulings.

Susannah Luthi, Alex Guillen and Renuka Rayasam contributed to this report.



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