By Jess Jones
Upon her death on September 18th, Supreme Court legend, ‘The Notorious RBG’, left behind her a vacant seat that Trump was only too keen to fill. With no regard for the late justice’s memory, the President wasted little time in nominating conservative Amy Coney-Barrett.
Democrats were outraged at the blatant hypocrisy of the situation. For in 2016, another election year when a Supreme Court vacancy arose, Obama’s attempt at nominating Merrick Garland was downright rejected by the Republican majority in the Senate. Ironically, in an interview of Barrett in 2016, she suggested that Obama’s nomination during an election year should wait until the next term because it could “dramatically flip the balance of power”. Yet in 2020, a confirmation of Barrett could ensure decades of a firm conservative grip on the court as it would create a huge power imbalance of 6-3 in favour of conservative control.
In light of the recent news of President Trump’s positive test to Covid-19 and the embarrassment of the first presidential debate, the supreme court drama has seemed rather overshadowed. However, it is far from over. Republican control of both the White House and the Supreme Court has made it easy for them to hastily push through this nomination and October 12th saw the start of Barrett’s live hearings, which took place until 15th October in Washington, DC. There are two Republicans (Sens. Lisa Murkowski of Alaska and Susan Collins of Maine) who have publicly declared that they are opposed to confirming a nominee with the next election so close. Nevertheless, it seems more than likely that Mitch McConnell, Senate majority leader, will still have the bare majority needed to confirm Barrett.
Barrett is a rigorous constructionist, meaning she takes the constitution literally and as it was written in its original context. A lot of people are concerned that this could signal the overturn of several recent progressive victories, such as Roe v Wade, thereby reversing women’s reproductive rights, and possibly even Brown v Board of Education, which made it unconstitutional to allow racial segregation in schools. Lucinda Finely, a professor at the University at Buffalo School of Law stated that “it is a particularly painful irony that much of [Ginsburg’s] legacy is at great risk of being undone by another woman.”
If confirmed, Barrett will face two major cases almost immediately. One of them is a significant case on the Affordable Care Act, which, if lost, could prevent millions of Americans from accessing affordable healthcare. At a time when the health of many is so uncertain and at risk, this could have far-reaching implications. Barrett is a public critic of Chief Justice John Roberts’s ruling in the 2012 case where his deciding vote saved the ACA. House speaker Nancy Pelosi emphasised the blow that ending Obamacare could have on US citizens, saying “If you have a pre-existing medical condition, that benefit will be gone. If you are a woman, we’ll be back to a time where being a woman is a pre-existing medical condition. If your children are on your policy — say your adult children are on your policy — no longer will they be, and that in the time of a pandemic.”
During her live hearings Barrett refused to answer on several important matters: whether or not she would vote to reverse legal agreements that protect birth control and same-sex marriage rights, and even whether she accepted the science of climate change. Her confirmation is also of significance to Trump, who has said that all nine justices must be on the Supreme Court ahead of the November 3rd election in case there is a need for them to decide on any election challenges. Trump has thus far refused to promise a peaceful transfer of power and another Republican voice on the court would give him greater legal strength to dispute any outcome.
Although the Supreme Court is supposed to be non-partisan, in recent years it has become increasingly politicised. Democrats have responded to a nomination and probable confirmation that they view as deeply unfair with accusations of ‘defiling’ the Supreme Court and also by proposing a court-packing, a means of adding more justices to the court in order to swing rulings in an opposite direction. The contentious vying for power between Republican and Democratic parties sets a dangerous precedent for the future of the Supreme Court, and the effect of political games will doubtlessly be felt hardest by the most vulnerable and underprivileged citizens of America.
Image: The White House via Flickr