Activist Conservative on the Bench

Update 482 – ACB Stands For…
Activist Conservative on the Bench

Observers of this week’s hearings in Senate Judiciary on the Supreme Court nomination of Judge Amy Coney Barrett could not have missed the raging tax law question confronting the Court. Economic policy hides on the Court’s docket but that’s the ACA’s constitutionality on the line November 10, just in time for Barrett to hear.

What does Amy Coney Barrett stand for?  This, you could have missed. Amy Coney Barrett claims to be apolitical, an originalist, strict constructionist, not policy-driven. But these terms are a smokescreen, hiding the conservative activist behind the curtain. She demonstrates this more clearly than she wants, e.g., as the lone dissenter in Kanter v. Barr, see below. 

What are the economic policy stakes and implications of another conservative activist on the bench?

Good weekends, all….

Dana

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President Trump nominated Judge Amy Coney Barrett to fill the vacancy left by the death of Justice Ruth Bader Ginsburg. But Ginsburg was a progressive juggernaut, Barrett is the inverse: a staunchly conservative activist set to tear down the Affordable Care Act, progressive taxation, and voting rights. During this week’s Senate Judiciary Committee hearing on Barrett’s nomination, Barrett evaded questions about how she might rule on the bench. Judiciary Chair Lindsey Graham has set Barrett’s confirmation vote for next week. 

Below, we assess the economic and democratic ramifications of Barrett’s impending confirmation and the absurdity that is the conservative judicial philosophy of originalism.

Economic Implications

Barrett’s presumed confirmation will have profound economic and public health implications for the country. Her record demonstrates a clear preference for companies over workers and consumers. While at the 7th Circuit Court of Appeals, Barrett sided with corporations over individuals and employees an astounding 76 percent of the time. Her record is worrisome on many major issues: 

  • Healthcare: Oral arguments for a case that will decide the future of the Affordable Care Act (ACA) will begin on November 10, and Barrett’s opposition to the legislation is clear. In a 2017 essay, Barrett argued that in his majority opinion in NFIB v. Sebelius (2012), Chief Justice John Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” Roberts’s decision rested on interpreting the ACA individual mandate penalty as constitutional under Congress’s taxing power. Barrett also praised Scalia’s 2015 dissent in another case that challenged the ACA when he called the majority’s defense of the law “pure applesauce.” 

    Based on Barrett’s history, it’s almost certain that she will cast a deciding vote in favor of dismantling the ACA. If the ACA is repealed, approximately 29.8 million Americans will be left without health insurance amid a pandemic. Repeal would also be a tax windfall for the wealthy, decreasing taxes for the top 0.1 percent by an average of $198,000 per year. 
  • Consumer Protections: Barrett’s record on consumer protections is abysmal. In Cheryl Dalton v. Teva North America, et al (2018), Barrett sided with a pharmaceutical company when it was sued by a woman forced to undergo a hysterectomy due to damage from a faulty IUD. In another case, Barrett declined to reconsider a case that ruled that the Federal Trade Commission could not seek restitution for victims of consumer fraud, overturning precedent and weakening the agency.
  • Employment Discrimination Protections: In Dale E. Kleber v. CareFusion Corporation (2019), Barrett ruled that protections against age discrimination that apply to employees did not apply to job applicants. In another case, Barrett upheld a policy of racially segregating employees. 
  • Worker’s Rights: Barrett sided against workers suing for overtime pay and ruled that gig workers would need to go through mandatory arbitration in wage disputes. The nominee also ruled in Bigger v. Facebook Inc. (2019) that employees covered by arbitration agreements would be blocked from receiving notice of class action suits against their employers. 
  • Antitrust: Barrett’s record on antitrust law is not as clear. The nominee has ruled on six appellate panels that have decided antitrust cases, but she wrote none of those opinions — nor did she dissent or concur in any of them. Wednesday’s confirmation proceedings offered a little insight; in an exchange with Sen. Klobuchar, Barrett said that the text of the Sherman Act is broad and that antitrust law is consequently “controlled by precedent.” Precedent thus far has overwhelming favored companies, expanding immunity protections for companies. 

Democratic Process

President Trump’s strategy to steal the 2020 election is clear: if mail-in votes start to push Biden towards victory, Trump and the Republicans will go to the courts and attempt to disqualify millions of ballots. Barrett could cast a deciding vote in a case before SCOTUS and determine the election result, overturning the will of the people. On Tuesday, Barrett declined to say whether she would recuse herself from any case involving a dispute over the November election.

Barrett was asked by Sens. Feinstein and Durbin if the president had the power to unilaterally delay the election and, refusing to answer, claimed that she couldn’t answer hypothetical questions without making herself a “legal pundit.” But Article II of the Constitution clearly empowers Congress to choose the timing of the general election, a date previously set by an 1845 federal law. In her exchange with Sen. Durbin, Barrett had no difficulty in answering a similarly clear-cut question regarding the constitutionality of rescinding an individual’s right to vote based on race. Barrett’s non-answer on Constitutional issues when they pertain to presidential authority is a major cause for concern. 

Barrett’s record on voting rights is sparse, but her decision in Kanter v. Barr (2019) sheds some light on her views on the right to vote. In her lone dissent, Barrett argued that, unlike owning a gun, the right to vote was not an “individual” right. Her dissent expressed the view that only “virtuous citizens” truly possessed the right to vote, an assertion that has no precedent in the Constitution and openly violates the 14th Amendment. 

Originalism

Like many of the conservative justices on the Supreme Court, Judge Barrett abides by originalism, the doctrine which purports to interpret the Constitution only as the Founders intended. Originalists claim that their judicial philosophy avoids the activism of liberal justices, who bend the law to justify their progressive agenda. But originalism is neither consistent nor objective; the Founders themselves fiercely disagreed on the meaning of the Constitution. 

Barrett is a conservative activist who has broken with originalism to forward her conservative agenda on issues like gun rights. On Wednesday, Sen. Durbin brought up Barrett’s decision in Kanter in which Barrett was the lone dissenter. Barrett argued that the plaintiff’s felony conviction for Medicare fraud should not legally prevent him from owning a firearm, even though Wisconsin law states that anyone with a felony conviction is barred from gun ownership. Barrett further argued that because the plaintiff’s conviction was not for a violent crime, Wisconsin’s law was unconstitutional. Yet, Barrett’s reading of the Second Amendment distorted the Founders’ meaning, which was intended to apply only to militia members. There is also no legal precedent that distinguishes between violent and nonviolent criminals for the purposes of gun ownership. 

Barrett shares her originalist principles with the late Justice Antonin Scalia, for whom she clerked. Fittingly, Scalia also broke with originalism to support his conservative gun rights agenda in the case District of Columbia v. Heller (2008) when he rebuked 200 years of precedent to reinterpret the Second Amendment as an individual rather than a civic right. 

Although Barrett’s record on economic policy is sparse, Scalia’s and other originalists may offer some foresight into how Barrett may rule on such issues. Justice Scalia’s originalism led to his siding with the majority in the disastrous Citizens United v. FEC (2010) decision, which opened the floodgates for elite domineering of the political process. In his concurring opinion, Scalia stated that unlimited corporate donations were something to be celebrated. If we take Barrett at her word (and her slim record), a SCOTUS with Barrett would promote the same agenda.

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