Supreme Court Justice Amy Coney Barrett will help conservatives strip away rights

What difference will it make in the law and in people’s lives to replace liberal United States Supreme Court Justice Ruth Bader Ginsburg with someone from the opposite end of the political spectrum, Judge Amy Coney Barrett?

The overall effect in the short-term will be less than it might seem. That’s because there already are five conservative justices on the Supreme Court. But there are some areas where her presence will make an enormous difference. In the long-term, Barrett, who is 48, likely will keep this seat in conservative hands for decades to come.

Barrett’s confirmation seems a certainty as Republican senators, with stunning hypocrisy, have made clear that they will vote in favor of her nomination. Four years ago, Senator Majority Leader Mitch McConnell refused to hold hearings or a vote on the nomination, declaring, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

Many Republican senators echoed the idea that in an election year it should be for the people to decide who will fill a seat on the Supreme Court by who they choose to be president.

But just hours after the announcement of the death of Justice Ginsburg, Senator McConnell declared that “President Trump’s nominee will receive a vote on the floor of the United States Senate.”

Within a few days of Ginsburg’s death, with only two exceptions, Republican Senators announced that they would vote to confirm Trump’s pick. With 53 Republicans in the Senate, Barrett is a shoo-in to have a lifetime appointment on the Supreme Court.

Barrett would join a Court where there already are five conservative justices who were appointed by Republican presidents: John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.

In the overwhelming majority of cases, these five justices vote together and Barrett’s presence will mean that the decisions will be 6-3 rather than 5-4. Last term, there were 14 5-4 decisions. In 10 of them, the majority was Roberts, Thomas, Alito, Gorsuch and Kavanaugh. In just two of them was the majority Roberts, Ginsburg, Breyer, Sotomayor, and Kagan.

But there are occasional, important cases where Roberts has sided with the liberals, and these would come out differently with Barrett rather than Ginsburg on the bench. Last term, for example, Roberts joined with the liberals to strike down a Louisiana law that required doctors performing an abortion to have admitting privileges at a hospital within 30 miles.

Also last term, Roberts, joined by the four liberal justices, held that President Trump violated federal law in rescinding the Deferred Action for Childhood Arrivals Program, which allowed 800,000 Dreamers to remain in the United States.

More generally, with Barrett on the court, Roberts no longer will be the swing justice. In some areas, this is going to matter enormously. There is no doubt that there will be five votes to overrule Roe v. Wade. No one questions that Justices Thomas, Alito, Gorsuch and Kavanaugh are ready, willing, and eager to do so. Now there is a sure fifth vote.

In 2012, the Supreme Court upheld the Patient Protection and Affordable Care Act in a 5-4 decision with Chief Justice Roberts joining the four liberal justices. Barrett was sharply critical of Roberts and the decision. This November, the Court will hear another constitutional challenge to the Affordable Care Act and Barrett could possibly join with the four most conservative justices to strike it down, leaving 21 million people without health insurance.

Barrett is a strong opponent of protecting the constitutional rights of gay and lesbian individuals. I predict with her on the bench, the Court will expand the ability of people, based on their religious beliefs, to discriminate against others, especially against gay, lesbian, and transgender individuals. I fear the Court will say that bakers and florists and photographers can refuse to serve same-sex weddings. Employers who claim a religious basis will be able to discriminate on the basis of sexual orientation and gender identity.

There are enormous long-term consequences of Barrett’s confirmation. She is 48 years old. If she remains on the Court until she is 87, the age of Justice Ginsburg when she died, Barrett will be a justice for 39 years, until the year 2059. Indeed, she will be part of a solid conservative majority likely for years to come. Consider the age of the conservative justices: Neil Gorsuch, 52; Brett Kavanaugh, 54; John Roberts, 65; Samuel Alito, 70; Clarence Thomas, 72.

Conservatives certainly can rejoice that they have captured the Supreme Court. But it is a court far further to the right than the American people, and it is going to take away from Americans some rights that we have long come to expect and assume.

This story was originally published October 2, 2020 at 5:00 AM with the headline "Supreme Court Justice Amy Coney Barrett will help conservatives strip away rights."