Professor: Barrett could put Roe at risk

Press-Republican (Plattsburgh, NY)

Sep. 29--PLATTSBURGH -- A solidly conservative-leaning U.S. Supreme Court featuring Judge Amy Coney Barrett on its roster would likely revisit or take a different approach on several hot-button issues.

Numbering among those are reproductive rights, health care access, LGBTQ rights, religious freedom, immigration and gun restrictions, says SUNY Plattsburgh political science professor Dr. Raymond Carman, whose research focuses include the courts and the Constitution.

On Saturday, President Donald Trump announced his nomination of Barrett -- a U.S. Court of Appeals for the Seventh Circuit judge and former clerk for late Supreme Court Justice Antonin Scalia -- to the seat left open by Justice Ruth Bader Ginsburg's passing on Sept. 18.

POTENTIAL IMPACTS

On case law and decisions that could be impacted by Trump's pick, Carman noted the potential further erosion or complete overruling of Roe v. Wade, and the possibility that, when the court takes up another challenge to the Affordable Care Act shortly after the election, it could declare the statute unconstitutional.

A Supreme Court with six justices on the ideological right could uphold a repeal of Deferred Action for Childhood Arrivals (DACA) and/or a new travel ban, expand Burwell v. Hobby Lobby to allow for even more exceptions to providing reproductive health care, or rule "that any given number of gun restrictions violate the Second Amendment," he added.

Furthermore, marriage equality could be under threat if the court were to overrule Obergefell v. Hodges, in which the body held that clauses in the Fourteenth Amendment guaranteed same sex couples' right to marry.

"More likely, individuals could be given religious exemptions from state civil rights and public accommodation laws that would otherwise bar same-sex couples from being discriminated against," Carman said.

As indicators of where Barrett might lean in such arguments, Carman pointed to a letter she signed expressing very conservative views on abortion and LGBTQIA+ rights, an article she penned criticizing the court's rulings on the ACA's constitutionality and her dissents in abortion and gun rights cases heard by the Seventh Circuit.

ELECTION POLITICS

Dr. Harvey Schantz -- also a SUNY Plattsburgh political science professor -- said the upcoming presidential election would affect politics surrounding Barrett's nomination by further heightening the current extreme partisanship.

Additionally, it could provide tangible electoral payoff for Trump and California Sen. Kamala Harris, the Democratic vice presidential nominee who raised her profile during Justice Brett Kavanaugh's 2018 confirmation hearings.

"President Trump is eager to have Barrett confirmed so that he can further tout his 'promises made, promises kept' theme and cement his conservative bona fides among wavering Republicans who are turned off by his style but nevertheless like his policies," Schantz said.

"Harris can use her Judiciary Committee perch to elevate her role in the presidential campaign by being a power player and not just a vice presidential candidate."

BALANCE

Presidents typically use their power to nominate Supreme Court justices during election years, like how then-President Barack Obama selected Judge Merrick Garland in 2016, Schantz said.

They tend to take into account compatible political ideologies, relative youth, and gender and race considerations.

Similar to how President George H.W. Bush selected Clarence Thomas to fill Thurgood Marshall's seat, Trump is looking to replace Ginsburg with Barrett, he pointed out.

"In both instances, the Republican president nominated a conservative but was careful not to upset the racial or gender balance of the court in doing so."

SHIFT THE MEDIAN

If confirmed, Barrett's voting pattern would make her the Supreme Court's third most conservative justice, and change the entity's ideological median from Chief Justice John Roberts Jr. to Justice Brett Kavanaugh, Carman said.

Kavanaugh has almost never agreed with justices to the left of him in a 6-3 decision, and in the few times he has, none have been prominent cases, he said.

"Meanwhile, Chief Justice Roberts has voted with a bit of regularity with a liberal 5-4 decision -- and several of them were in salient cases," Carman continued.

"This means that, if Judge Barrett is more conservative than Chief Justice Roberts -- which almost certainly she will be -- the likelihood of a liberal outcome coming out of the Supreme Court in a salient case until a conservative justice is replaced is very low."

PUBLIC OPINION

While there is little Democrats could do to stop Senate Majority Leader Mitch McConnell (R-Kentucky) from moving forward, given his sufficient senatorial support, public opinion may have some influence over when he initiates Barrett's confirmation proceedings, Carman said.

On average, the number of days from nomination to final Senate vote since 1975 has been 67 days. Barrett's nomination came fewer than 40 days before Election Day.

Carman added that the former figure includes many confirmations that were unanimous, or close to it.

"This one will not be. If the public feels that the process is not legitimate, maybe the Republicans will wait until after the election."

But he is still not sure that would make a difference, since a Biden victory would put pressure on Republicans to leave the seat vacant until after inauguration.

"Therefore, since they have chosen to exercise this power, they are best served by doing so quickly."

CHANGES TO THE COURT

In the wake Ginsburg's death and the announcement of Barrett's nomination, Carman has heard three proposals floated that could change the Supreme Court or how it operates.

He believes the most likely would be increasing the size of the entity, a move that would only take a bill passed by both houses and signed by the president.

"This might go a long way to appeasing those who think that the Supreme Court has lost legitimacy (its only real tool) by recent appointments."

The idea of imposing term limits on Supreme Court justices has also been put forward. That could happen via a constitutional amendment -- highly unlikely, Carman said -- or legislation that imposes 18-year terms, after which justices move to "senior justice" positions and only sit in on hearings if there is an unexpected vacancy.

"A new justice would join the court for that 18-year term every two years, the hope being to make judicial vacancies predictable and regular and thus deescalate the process," he added.

Lastly, Congress could limit the court's appellate jurisdiction.

Carman pointed to how there is a small list of cases in which the body has original jurisdiction. All others fall under its appellate jurisdiction, which Congress can make exceptions to.

"Therefore, Congress could remove a particular type of case or type of issue from the Supreme Court's appellate jurisdiction, and the court would be unable to hear that type of dispute."

Email Cara Chapman:

[email protected]

Twitter: @PPR_carachapman

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