UC Davis professors and the Davis College Democrats and Republicans unpack Barrett’s confirmation as a Supreme Court justice and her possible stances on court cases
On Oct. 26, President Donald Trump’s Supreme Court Nominee, Amy Coney Barrett, was confirmed to be the next Supreme Court justice, filling former Justice Ruth Bader Ginsburg’s seat. This confirmation has brought controversy as Americans debate her confirmation and its possible impact on previous cases.
Many have discussed her confirmation process in the context of the 2016 Supreme Court nomination, where Senator Mitch McConnell denounced Merrick Garland’s nomination by former President Obama under Article II, Section 2 of the US Constitution, stating that the Senate is allowed to withhold consent. McConnell refuted the nomination due to the upcoming election in November and a difference in parties between the Senate majority and the President. This year, the precedent of delaying a judge’s confirmation due to an election year was not upheld with Barrett’s confirmation.
Ashutosh Bhagwat, a UC Davis professor of law specializing in constitutional law and the Supreme Court, clarified the legality of this situation.
“Mitch McConnell had no legal obligation to confirm Judge Garland in 2016,” Bhagwat said.
Ethically, according to Bhagwat, the deliberate attempts to ignore past precedent for party gains is questionable, yet it is in the Senate’s legal right to do so.
With Barrett’s confirmation, the Supreme Court has a 6-3 conservative supermajority. This new direction could allow for past cases to be overturned, and for tighter restrictions on previously set laws.
Brian Soucek, a UC Davis professor of law specializing in constitutional law, gender identity and sexual orientation, explained that though past cases often hold significance in court, if the Supreme Court finds them unlawful, they can be easily overturned with a 5-4 vote.
“There is doctrine and there is tradition and there are norms, and if you’re going to overturn a prior decision you need a better reason to do that, to go that direction, than you would need if you were deciding something for the first time,” Soucek said.
In terms of abortion, both Soucek and Bhagwat stated that the reversal of Roe v. Wade and the criminalization of abortion is a possibility. Soucek, however, argued that there is a greater likelihood that the Supreme Court will focus on chipping away at abortion rights and granting states the power to dictate abortion laws.
Even if Roe v. Wade is overturned, that does not equate with abortion being illegal. Rather, Bhagwat explained, this action would place the ultimate decision about abortion rights on individual states. California, for example, would be unaffected since its comprehensive abortion laws would permit unobstructed access, while conservative states are more likely to ban or severely restrict abortion and contraceptives.
As abortion rights are expected to become more restricted, Lisa Materson, a UC Davis women’s and gender history professor, explained this moment as part of a broader, ever-changing political movement. According to Materson, the introduction of Roe v. Wade influenced the New Right movement—formed out of opposition toward abortion rights. Barrett’s confirmation, she said, is not a trend but rather a continuation of this movement.
“If we were to go back every decade prior to now after Roe v. Wade, there would be lots of different examples,” Materson said, referring to moments in history where female rights were constrained.
It is also possible that Barrett’s confirmation will lead to the repeal of the Affordable Care Act (ACA). If the Supreme Court finds the ACA unconstitutional with the recent no tax mandate, then Congress will have to pass a new bipartisan health care bill as a replacement.
The removal of this act, according to Bhagwat, could bring serious consequences, as it limits the coverage for people with pre-existing conditions. It also may cause 18-year-olds to need to find separate healthcare plans and could limit access to contraceptives.
“Striking down [the] Affordable Care Act would severely undermine women’s access to insurance that pays for birth control,” Bhagwat said.
Similar to abortion, Soucek mentioned that the Supreme Court is less likely to overturn past cases regarding LGBTQ rights like Obergefell v. Hodges, but it may vote in favor of future cases that restrict these rights.
“The almost certain path is that the 6-3 court will greatly expand religious exemptions and accomodations for people that have religious objections to same-sex marriage and related LGBTQ issues” said Soucek.
In the case that the Supreme Court decides to overturn Obergefell v. Hodges, Soucek said it would be more impactful on California constituents than overturning Roe v. Wade.
“[If] Obergefell gets overturned, California goes back to Prop 8 which says marriage is between one man and one woman,” Soucek said.
With this new direction in court, Americans have formulated varying opinions toward Barrett and her potential impact on our country. Karan Brar, the chairman of the Davis College Republicans (DCR), stated that the entire nomination process by the Senate in 2016 should have been controlled differently.
“We do wish that in 2016 they would have at least voted on the nomination, just to not have set this precedent that we have to go back on,” Brar said.
Though DCR is mostly in favor of the nomination, Brar stated that the organization’s largest rejection of Barrett is her probable stance against same-sex marriage.
“All of us are absolutely against repealing same-sex marriage, but we also don’t think it will go up through the court,” Brar said. “We don’t think we are going to have an issue where a state tries to ban gay marriage.”
The Davis College Democrats (DCD), according to President Aurora Schünemann, oppose the confirmation of Barrett and her overarching ideals. Schünemann and Executive Director Evan Cragin both shared the same message that the confirmation of a new judge should have followed the 2016 precedent and been postponed until after the election.
Regardless of that decision, they disagree with Barrett’s probable stances on anti-abortion legislation, restrictions on same-sex marriage as well as the possible overturn of the ACA.
“Part of the conversation that has been lost about the ACA was that it was always supposed to be a stepping stone,” Schünemann said.
Schünemann and Cragin emphasized that President Obama introduced the ACA as an initial bill that would encourage citizens to obtain healthcare and pivot towards a publicized system. Though little can be done if the legislation that they support is overturned, both hope that more bills being passed in the House and the possible flipping of the Senate in 2022 would ensure stability within the courts as the concept of additional judges might become more realistic.
As Barrett adjusts to her new position, many have already retaliated by threatening to initiate impeachment. Bhagwat, however, clarified that the impeachment of a Supreme Court Justice has only occurred once in the history of the U.S.
“The standard for impeachment is high crime or misdemeanor,” Bhagwat said. “How you vote in specific cases is not a grounds for impeachment. [The] Supreme Court is supposed to be independent of the political process.”
Though it’s possible that Barrett might opt in favor of overturning past cases, it is more probable that she will play a role in curbing the influence of these cases to limit abortion and same-sex marriages. Despite her potential impact, Barrett has not confirmed her stance on many issues that could turn into Supreme Court cases; only time will tell.
Written by: Farrah Ballou — features@theaggie.org
