A Sea Change For The Supreme Court
Bloomberg Businessweek|October 05, 2020
The Sept. 18 death of Justice Ruth Bader Ginsburg set up a political fight over the future of the high court, with Republicans determined to seat her replacement before Election Day over Democrats’ objections.
By Amanda Kolson Hurley

If Donald Trump’s nominee, Amy Coney Barrett, is confirmed, it would mean a profound change no matter who wins on Nov. 3: The court’s 5-4 conservative majority before Ginsburg died would become a 6-3 supermajority. Here’s a primer on the transition and what to expect from a new court.

THE NOMINEE

Amy Coney Barrett could be the most conservative new justice to join the U.S. Supreme Court since Clarence Thomas, a dream addition for many Republicans.

Nominated on Sept. 26 by President Trump, Barrett champions the “originalist” approach that has become conservative orthodoxy for interpreting the text of the Constitution. She is an acolyte of the late Justice Antonin Scalia and a devout Catholic.

Should she win Senate confirmation to succeed Ginsburg, as expected, Barrett could bring about the biggest legal shift in decades— and at 48, she could serve on the high court for decades. Her vote would make the court under Chief Justice John Roberts more likely to overturn Obamacare, disable federal regulatory agencies, and expand gun rights. She might even give conservatives their long-pursued goal of toppling the 1973 Roe v. Wade ruling.

Speaking in the White House Rose Garden after being introduced by Trump, she vowed to emulate Scalia, for whom she clerked in the court’s 1998-99 term. “His judicial philosophy is mine, too,” Barrett said. “A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.”

Barrett rates as more conservative than either of Trump’s first two nominees, Neil Gorsuch and Brett Kavanaugh, according to a predictive scale developed by academic experts. Gorsuch and Kavanaugh have been generally reliable votes for conservative causes, though Gorsuch disappointed many backers in June with his majority opinion extending federal anti-discrimination law to LGBTQ workers.

Barrett has voiced skepticism about the Affordable Care Act, also known as Obamacare. In a 2017 law review article, she criticized Roberts’s opinion upholding the law as pushing the text “beyond its plausible meaning.” The Supreme Court will take up a new constitutional challenge to the health-care law on Nov. 10.

Her record, says Adam Winkler, a UCLA School of Law professor, suggests she’d be even more supportive of gun rights than Scalia, who wrote the landmark 2008 decision that said the Second Amendment protects individual freedoms.

Barrett grew up in a New Orleans suburb and attended a Catholic girls’ high school before graduating from Rhodes College and then Notre Dame Law School in 1997. She clerked for conservative Washington, D.C., federal appeals court judge Laurence Silberman before Scalia. She returned to Notre Dame as a professor in 2002 and taught there full time until Trump appointed her to the federal appeals court in Chicago in 2017. Barrett and her husband, Jesse Barrett, a federal prosecutor, have seven children, including two adopted from Haiti.

Religion plays a central role in Barrett's life. In a 2006 Notre Dame Law School commencement speech, she urged graduates to direct their legal careers toward “building the Kingdom of God.” She has served as a trustee of a school run by a small Christian group called People of Praise that combines Catholic teachings with charismatic practices.

Barrett made her personal opposition to abortion clear in a 1998 law review article about Catholicism and judging. She wrote that abortion and euthanasia “take away innocent life” and that abortion is “always immoral.”

But Jonathan Adler, a Case Western Reserve University law professor who is friendly with Barrett, says no one should assume she will vote to overturn Roe. “She thinks Roe was incorrectly decided as an original matter,” Adler says. “But that’s different from the question of whether or not it should be overturned.” —Greg Stohr and David Yaffe-Bellany, with Bill Allison, Perry Cooper, and Josh Wingrove

THE CONFIRMATION TIMELINE

Senate Republicans plan to start Barrett’s confirmation process on Oct. 12. It will begin with hearings in the Judiciary Committee (where Democratic vice presidential nominee Kamala Harris is a member). A full Senate vote is tentatively planned for the week of Oct. 26, the week before the election.

This timeline is unusually fast. Trump announced Barrett as his nominee on Sept. 26, less than 40 days before the Nov. 3 election. Only twice since 1975 has the chamber been able to confirm a Supreme Court pick in less time: In 1975, the late John Paul Stevens’s confirmation took just 19 days, while former Justice Sandra Day O’Connor was confirmed 33 days after she was nominated in 1981.

Continue reading your story on the app

Continue reading your story in the magazine

MORE STORIES FROM BLOOMBERG BUSINESSWEEKView All

Changpeng Zhao – “I don't really care much about money”

Critics say Changpeng Zhao became the wealthiest man in crypto by operating the equivalent of an unlicensed casino. He says that’s all in the past

10+ mins read
Bloomberg Businessweek US
June 27, 2022

Where Ultrafast Delivery Still Zooms

India’s so-called quick commerce is soaring, but high cash burn may clip the startups’ wings

6 mins read
Bloomberg Businessweek US
June 27, 2022

The Other NBA Draft

League officials, investors, and Barack Obama are betting they can make basketball Africa’s second-biggest sport—and Africa basketball’s most valuable growth market

10+ mins read
Bloomberg Businessweek US
June 27, 2022

TikTok Turns On the Money Machine

The ad revenue is already flowing, and e-commerce is next

5 mins read
Bloomberg Businessweek US
June 27, 2022

The Scuffle Over Your Stock Trades

The SEC’s ideas to change how markets work could shake up the brokerage business

5 mins read
Bloomberg Businessweek US
June 27, 2022

The Global Currency War Begins

Desperate to tame inflation, central bankers are vying for more buying power

5 mins read
Bloomberg Businessweek US
June 27, 2022

Spotify's Long, Winding, and Pricey Journey Into Podcasting Is Very Much Not Over Yet

The company spent $1 billion on studios and top-tier talent. Now it wants to be podcaster for the everyman

10+ mins read
Bloomberg Businessweek US
June 27, 2022

Is China At Peak Property?

An extended slump in home sales may be a bigger drag on growth this year than lockdowns

4 mins read
Bloomberg Businessweek US
June 27, 2022

FLUBBED

Inflation blunders have strained the trust that anchored the dollar and other currencies for decades

6 mins read
Bloomberg Businessweek US
June 27, 2022

Elon Musk's Sober Outlook

The billionaire Tesla chief cast a shadow over prospects for the US economy and the Twitter deal

4 mins read
Bloomberg Businessweek US
June 27, 2022