PITTSFIELD — Soon after Justice Amy Coney Barrett takes her seat on the Supreme Court, she will find herself hearing and deciding two major cases that involve the striking down of the Affordable Care Act and the overruling of the Roe v. Wade decision.
If she votes as expected for these outcomes along with Justices Neil Gorsuch and Brett Kavanaugh, this will signal the likelihood of a new court era, from an era of a moderate majority to one in which a solid majority will side with the conservative policies of Republican members of Congress and presidents for a long time. That is, unless Barrett will surprise President Donald Trump, Republican Senate Majority Leader Mitch McConnell, R-Ky., and their congressional supporters by voting against such outcomes.
There have been a number of such surprises. One involved former Chief Justice Earl Warren. He had a conservative background, but as a member of the court he led it to decide cases like Brown v. The Board of Education, to end segregation in public schools, to cases like Miranda v. Arizona, to reform criminal justice by creating a right of criminal suspects to remain silent while being interrogated. He was appointed by former Republican President Dwight Eisenhower, who was greatly surprised by the Warren court.
Another former justice, Henry Blackmun, who was considered a good conservative, was labeled a liberal judicial activist for writing the majority opinion in the Roe case. He surprised then-President Richard Nixon, who appointed him to the court. Another former Republican, President George H.W. Bush, felt so bad about being surprised by his court appointee, former Justice David Souter, that he was compelled to atone for that appointment with his fellow Republicans by later appointing Justice Clarence Thomas to the court.
Souter had what appeared to be a solid conservative background, but on the court he sided with his liberal colleagues. I am not sanguine that Barrett is likely to cause any such surprise.
Alexander Hamilton, in his Essay No. 78 in The Federalist Papers, noted a high bar for members of the Supreme Court to carry out the intention of the Founding Fathers. He observed that there would be a very small number of individuals that would be qualified to sit on the court because of the necessary qualifications of a requisite, competent knowledge of the law and integrity to decide cases. But, instead of serious attempts to find such individuals, presidents and members of the Senate who nominate, confirm and appoint these judges now seek to only find partisan individuals who will decide cases based on the legislative policies of their choosers.
Trump has clearly demonstrated his intent to find somebody to sit on the court to principally strike down the ACA and overrule the Roe case. In my opinion, his intent to do this seems clear. He has no detailed proposal to substitute for the elimination of the ACA despite the grave health consequences for some 20 million Americans losing their health insurance coverage, including coverage for preexisting conditions and young people allowed to stay on their parents’ coverage.
Also, the overruling of the Roe case will cause further chaos by putting America back into the situation on this issue that existed before that case was decided. Each state will be able to decide whether to ban and criminalize abortion. A number of state legislatures have enacted laws to do this in anticipation of such a ruling by the Supreme Court to overrule the Roe case. The high courts in each state will also have the authority to decide whether women have a state constitutional right to an abortion.
Meanwhile, Barrett has complicated the matter by sticking to her repetitious statements, as apparently she had been instructed by her White House handlers, by pretending she cannot answer any questions about how she might rule in these two cases because she will have to decide them.
There is no sacrosanct reason, legal or otherwise, for her to refuse to tell Congress and the American people how she would vote to decide cases to be heard by the court. The Founding Fathers of this nation would be shocked by such an erosion of their separation-of-power system by having the Supreme Court side with the politically partisan policies of a party that holds both the White House and a Senate majority.