Implications of a Majority Conservative Supreme Court of the United States

By Esther Lee
Esther Lee is a sophomore, studying Philosophy, Politics, and Economics in the College of Arts and Sciences and Finance & Operations in The Wharton School at the University of Pennsylvania.

With the recent confirmation hearings of Judge Amy Coney Barrett to the Supreme Court of the United States, there is undoubtedly a question of whether her presence on the bench could mark an enormous shift for future holdings. If confirmed, Barrett will give the court’s conservative wing a solid 6-3 majority. Currently, Chief Justice John Roberts is the court’s median [1]. Barrett is a self-proclaimed originalist, meaning she believes that constitutional text should be interpreted as “what it did at the time it was ratified and that this original public meaning is authoritative” [2]. One estimate of her ideological leanings is that Barrett will be the third-most conservative justice on the court, to the right of Trump’s previous nominees, Justices Neil Gorsuch and Brett Kavanaugh, and just to the left of Justices Samuel Alito and Clarence Thomas. Using Alito’s career as a guide, it is expected that Barrett will reach conservative decisions in 84% of non-unanimous decisions and 71% of all cases [3]. Though these predictions are not always correct — as several of the court’s most liberal justices were appointed by Republican presidents — the conservative legal movement has been able to bring to prominence potential justices, like Barrett, who are consistent ideological conservatives [1]. 

Barrett’s addition to the court will provide a strong continuation for the following of three subtle doctrinal tools that the conservative Court have developed: willful ignorance of political reality, the presumption of legislative good faith, and animus laundering. Such results may depress minority voting and block nonpartisan election reform, as seen in racial gerrymandering cases, where the Court has held that predominant racial motivations in redistricting is impermissible, yet partisan motivations are permissible. These three doctrines could likely hurt minority voting rights, and demonstrate the power of the Court to move doctrine subtly without evoking the controversy proceeding forthright judicial declarations [5]. In addition, is predicted that Barrett will be a reliable conservative vote to uphold restrictions on abortion, apply originalist methodology on post-Heller second amendment cases, limit gay rights, and invalidate affirmative action programs and campaign finance regulations [4].

Several recent examples demonstrate the three doctrinal tools mentioned above. According to a recent paper published in the Georgetown Law Journal Online, Chief Justice Roberts has demonstrated false naivete about what social scientists and courts can know about voters’ political behavior. In the 2013 Shelby County v. Holder case, Roberts decided with the majority to sever a key part of the Voting Rights Act that “things have changed in the South. The presumption of good faith has favored legislative self-interest and against findings of minority vote dilution. As seen in the decision of Abbott v. Perez, lower courts have to assume good faith even when self-interested legislators enact laws or policies which preserve their own power. The Court has stretched the realm of good faith to include “constitutional political gerrymandering.” Furthermore, by deriving nondiscriminatory reasons to support discriminatory laws, the Court has allowed government actors to reenact laws only slightly different from the original. Amicus laundering can be seen in cases such as the Abbott v. Perez and a fifth circuit case on Texas’s voter identification law [5].

Barrett replacing Ginsburg will be one of the largest swings on the court since 1953. She is a favorite of conservative Christians, as she is perceived to be a justice who will significantly expand states’ ability to restrict abortion access, possibly even consider to overturn Roe v. Wade [1]. In contrast to the late Justice Ginsburg, who stated that “legal challenges to undue restrictions on abortion procedures . . . center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizen statute,” Barrett has an anti-abortion record. Though Barrett has recognized that a woman’s right to abortion is unlikely to change, the Court can give states the ability to place restrictions on clinics, making abortion more difficult [6]. As an appeals court judge, Barrett joined a dissent in 2018, where the Indiana Law that would have outlawed abortions that were based on the race, sex or disability of a fetus was struck down. She joined with Judge Frank Easterbrook, who referred to the Indiana statute as “an anti-eugenics law.”

When proceeding with the Second Amendment cases, Barrett might join with the other conservative justices for a broad view of gun rights under the 2nd Amendment [7]. A recent study assessing fifty of the most significant Second Amendment cases across the federal circuit courts showed that while there is near unanimous national consensus within the federal circuit courts on applying the methodology to such cases — a framework for deciding cases known as the “two-step test” or the “two-part test” — there are important unresolved methodological issues that have an impact on how such cases are analyzed and decided. The issues allow judges to influence the ultimate decision in a case while appearing to be objective [8].

Judge Barrett is a devout Catholic and member of the religious network People of Praise, suggesting that she may be sympathetic towards Christian groups. Barrett may be consistent with her late mentor Justice Antonin Scalia’s belief that the law superseding religious objections “must be preferred to a system in which each conscience is a law unto itself.” For example, in Employment Division v. Smith in 1990, the Court ruled that laws violate the First Amendment only if they target a specific religious practice, not if they simply contradict them. A recent law suit specifically asks the court to reconsider the precedent established in Employment Division v. Smith. Some worry that if the precedent is overturned, it could leave LGBTQ individuals unprotected, allowing anyone who has a religious basis for discriminating to claim exemption from the application of civil rights laws [9].

If Barrett is confirmed, she will be the youngest justice on the Court, allowing her to reshape the law for decades to come. She comments on her late mentor, Justice Antonin Scalia, “His judicial philosophy is mine, too — a judge must apply the law as written.” 

References
[1] Thomson-Deveaux, A. (2020, September 25). How Amy Coney Barrett Could Change The Supreme Court. Retrieved October 19, 2020, from https://fivethirtyeight.com/features/how-amy-coney-barrett-could-change-the-supreme-court/
[2] Millhiser, I. (2020, October 12). Originalism, Amy Coney Barrett's approach to the Constitution, explained. Retrieved October 19, 2020, from https://www.vox.com/21497317/originalism-amy-coney-barrett-constitution-supreme-court
[3] Epstein, L., Martin, A. D., & Quinn, K. (2020, September 21). Replacing Justice Ginsburg. Retrieved October 19, 2020, from http://epstein.wustl.edu/research/ReplacingJusticeGinsburg.pdf
[4] Judge Amy Coney Barrett: Her Jurisprudence and Potential ... (2020, October 6). Retrieved October 19, 2020, from https://crsreports.congress.gov/product/pdf/R/R46562
[5] Hasen, Richard L., The Supreme Court’s Pro-Partisanship Turn (March 4, 2020). Georgetown Law Journal Online,Vol.109, 2020, UC Irvine School of Law Research Paper No. 2020-07, Available at SSRN: https://ssrn.com/abstract=3548858
[6] O’Leary, Erin, Raising the Stakes: When a Supreme Court Justice Dies During an Election Year (September 30, 2020). Saint Louis University School of Law Journal Online, Available at: https://scholarship.law.slu.edu/cgi/viewcontent.cgi?article=1046&context=lawjournalonline
[7] Savage, D. G. (2020, September 26). In Amy Coney Barrett, conservatives see the Supreme Court champion they've longed for. Retrieved October 18, 2020, from https://www.latimes.com/politics/story/2020-09-26/with-amy-barrett-conservatives-get-the-supreme-court-champion-theyve-been-seeking
[8] Frassetto, Mark, Judging History: How Judicial Discretion in Applying Originalist Methodology Affects the Outcome of Post-Heller Second Amendment Cases (April 25, 2020). 21 William and Mary Bill of Rights J., Forthcoming, Available at SSRN: https://ssrn.com/abstract=3584897
[9] O'Connell, R. (2020, October 08). The Barrett factor: How would the new justice rule on religious freedom and gay rights? Retrieved October 18, 2020, from
https://www.deseret.com/indepth/2020/10/8/21502913/trump-supreme-court-scotus-pick-barrett-rbg-ginsburg-gay-rights-lqbt-scalia-discrimination

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