With the recent election, Americans’ attention has been focused on the electoral college (and its legitimacy) and swing states (and the votes that make them up). And while this election is incredibly important, it is equally important not to fall into the cycle of forgetting about the news of yesterday in order to focus on the news of today. This is especially true in the context of Amy Coney Barrett’s appointment to the Supreme Court on October 27th, an appointment that will have consequences that reach far beyond the next four years. At age 48, she is the youngest justice and will likely serve on the court for years to come. And yet, the media seems to have already moved past this monumental fact; the original wave of articles following President Trump’s nomination of Barrett slowed to a trickle following her actual appointment. The media moved on and, as a result, Americans moved on. However, the impact of Barrett’s nomination will be far reaching and her appointment cannot be simply cast aside.
In the coming months, the court is expected to hear cases related to abortion, the Affordable Care Act, environmental policy, immigration, and LGBTQ rights, among others. On October 30th, the court reviewed and decided they would hear a case regarding a 15-week abortion ban in Mississippi. On November 4th, the court heard arguments for Fulton v City of Pennsylvania, a case in which the legality of denying services to the LGBTQ community was put into question. On November 10th, the court heard a case from California about the legality of the Affordable Care Act. All these cases could easily be overshadowed by a repeat of the 2000 presidential race, in which the court ultimately made the decision about the legality of votes in Florida. Their decision effectively granted George W. Bush the presidency. In the coming weeks, months, and years, many more cases will come before the court dealing with these same topics. Given Barrett’s recent appointment, we don’t know how she will vote on many of these cases or if she will recuse herself and choose not to participate. However, we can use Barrett’s previous voting record and her impact on the political beliefs of the court to make certain assumptions about her impact.
Barrett identifies as a constitutional originalist. In a recent NPR interview, constitutional law professor Randy Barnett defined originalism as “the philosophy that judges can’t change the meaning of the Constitution.” Essentially, an originalist philosophy means that you try to understand the constitution as the founders meant it to be understood. Barrett’s fellow Justices Thomas, Gorsuch, and Kavenagh also favor this approach, meaning it will likely need to become a key part of the arguments presented to the court. Professor Barnett believes that this may trickle down into how he teaches law, because “We might actually start having to teach students how to [use originalist arguments] so that they can litigate in the lower courts and in the Supreme Court.”
Originalism, also favored by Barrett’s mentor Antonin Scalia, has generally led to conservative calls; an outcome that is expected from Barrett. However, the style in which Barrett and Scalia use originalism is vastly different and could lead to major changes to the court. Scalia was brutal, critical, and ‘testy,’ unafraid to tear down his ideological opponents to prove his point. Barrett is far more diplomatic. According to her students, her colleagues, and her mentors, she is able to and interested in picking apart small legal arguments, acknowledging multiple sides of the case, and delivering her opinions in a polite manner. “She doesn’t like a bad argument,” one of her students said, but she will pick apart that argument in a polite way.
Liberal law professor Noah Feldman told Time magazine that Barrett’s “combination of smart and nice will be scary for liberals” and is distinctly different from Scalia. Scalia managed to alienate even his fellow conservative Justices; Feldman explained that over the years, tensions between Scalia and Justice Sandra Day O’Connor pushed O’Connor further to the left, resulting in far more liberal outcomes. Barrett won’t do that. Her politeness, her diplomacy, her niceness will likely unite the six other conservative justices and create a stronger than ever force for originalist arguments.
Importantly, Barrett’s identity as the sixth conservative justice will push the court further to the right and strengthen the conservative identity of that court. Currently, Chief Justice John Roberts acts as the swing vote in the court. Professor Barnett explains that if you’re the swing vote, “you start to give one to some side, give one to the other side.” However, with Barrett’s confirmation, the conservative coalition grows from five justices (including Chief Justice Roberts) to six. Given his role as both Chief Justice and the swing vote, Roberts will be more inclined to side with the majority of five conservative justices as opposed to the minority of three liberals. A 5-4 vote is far more contentious than a 6-3, and Chief Justice Roberts will want to side with both his fellow conservative justices as well as present a strong front as the Supreme Court. As a result, the Court will be far more likely to make conservative calls than it was previously.
Part of the concern about Barrett’s nomination is that we simply do not know how she will vote on many cases. Though Barrett has practiced law in smaller law firms and worked as a professor of law for many years, she has only served on a governmental court since 2017, where she worked on the U.S. Court of Appeals for the Seventh Circuit. This, in combination with her refusal to answer questions during her nomination hearing means that we have a sparse voting record for Barret. But, although we don’t yet have this record for Barrett, we can assume that the court will begin to lean more conservative given Barrett’s identity as an originalist and the impact she has on the divisions within the court.
Biden has stated that he will create a committee to review the number of seats in the court, given the fact that the court has “gotten out of whack.” However, this is a low-priority item compared to the Covid-19 pandemic, climate change, health care, and other factors that directly impact the American people. Additionally, there are 150 years of precedence against increasing the seats in the court, but the possibility remains that it may happen, a decision that would be driven by Justice Barrett’s appointment. However, it seems unlikely that Biden will make that a high priority during his first term in office.
What is clear and concerning about Barrett’s nomination, is that it will have an impact on the court and that impact will go on to affect the American people. Barrett’s appointment highlighted that the court has become a political entity, an identity that goes against the very purpose of the court. It is indicative of the growing divide between liberals and conservatives in the United States, and of the increasing hostility between those parties in the government. While it is true that there are larger priority items to address in the government, we should not just forget about Amy Coney Barrett’s nomination.
The Dissonance 