Barrett Could Well Be the Decider in a 2020 Replay of “Bush v. Gore”

If Americans want transparency — as they should — they’ve got it. Judge Amy Coney Barrett’s record of attacks on civil rights, workers’ rights, anti-discrimination measures and consumer protections is crystal clear. Though she’s just 48 years old, she has a phenomenally large legal footprint. And, as Democratic senators repeatedly pointed out Monday, on day one of the Senate Judiciary Committee Hearings, her record does not bode well for the Affordable Care Act (ACA) and many of the rights won over the past half-century.

At the commencement of the confirmation hearings, Committee Chairman Sen. Lindsey Graham (R-South Carolina) started off with a strikingly honest statement: “I think I know how the vote’s going to come out…. This is probably not about persuading each other… All Republicans will vote yes, and all Democrats will vote no.”

The next five hours were a dazzling display of the senators’ alternate realities. The Democrats critiqued the Republicans’ rush to approve Barrett before the election, chiding them for ignoring the COVID-19 catastrophe — for which state and local governments, health care facilities and individuals need the Senate to send funds as they struggle to survive the economic fallout and physical assault on their lives.

Mainly, however, they focused on Barrett’s record, which, they argued, matters massively. Indeed, her vote may be the one that determines the outcome of the case the Supreme Court will hear November 10 (California v. Texas) which Republicans, with the president’s boost, have brought to repeal the ACA.

The truth, the Democrats insisted, is that President Trump picked Barrett because he believes she will overturn the ACA. As Sen. Dianne Feinstein (D-California) noted, “The president has promised to appoint justices who will vote to dismantle that law.”

Speaking directly to Barrett, Feinstein said, “You’ve been critical of Chief Justice Roberts for his decision, which upheld the ACA.” She and the other Democrats repeatedly described the benefits Americans stand to lose if the ACA is repealed.

For their part, the Republicans masterfully avoided all substantive issues. They did not respond to the charge that they were operating with a double standard, given their insistence in 2016 that picking a justice to replace Justice Antonin Scalia had to wait until after the presidential elections — to let Americans decide with their votes. Nor did they respond to the charge that the hearings were a charade, since they’d already decided to approve her.

Instead, they praised Barrett’s intellect, her competence, her faith, her family and her high approval ratings from her law students. Oddly, they insisted the Democrats were ignoring her record — although discussing her record is precisely what the Democrats were doing.

While the press has often focused on Barrett’s religious beliefs and her family’s membership in People of Praise (a small, conservative Catholic group that some call a cult), it’s her decisions and dissents, along with her articles and speeches that leave little doubt about Barrett’s future judgments.

Barrett has firm opinions about access to health care, worker and consumer protections, immigrant rights, gun laws and criminal legal reforms — positions that are 180 degrees away from the legal giant she seeks to replace (whom all the Republican senators took pains to praise). Barrett is even to the right of judges appointed by Presidents Ronald Reagan and George H.W. Bush, whose judicial decisions she has criticized. And while she hasn’t ruled on same-sex marriage or sexual identity, her thoughts on these subjects have surfaced in other venues.

It’s not surprising that Barrett said Scalia’s “judicial philosophy is mine” when accepting her nomination. She clerked for Scalia and refers to him repeatedly: In one talk at Jacksonville University in 2016, she mentioned his name at least 20 times.

So what will this mean? Let us count the ways in which Judge Barrett is primed to serve the agenda of Trump and the Republicans who parrot his positions. As Sen. Kamala Harris insisted, “President Trump is attempting to roll back American’s rights for decades to come. Every American must understand that with this nomination, equal justice under law is at stake. Our voting rights are at stake, workers’ rights are at stake, consumer rights are at stake, the right to safe and legal abortion is at stake and holding corporations accountable is at stake, and there’s so much more.”

Affordable Care Act

As he promised in June 2015, candidate Donald Trump said, “If I win the presidency, my judicial appointments will do the right thing, unlike Bush’s appointee John Roberts did, on Obamacare.” Eliminating the Affordable Care Act, Trump said, will be “a big win for the USA.”

Leaving no doubt about her thoughts on this matter, in a 2017 book review in a Notre Dame Law School journal, Barrett wrote that Chief Justice Roberts’ decision in NFIB v. Sebelius was wrong because he pushed the ACA “beyond its plausible meaning, to save it.” With Barrett on the Supreme Court, even if Roberts sticks to his earlier position, it’s safe to say that with the new 5 to 4 lineup (Barrett, Thomas, Alito, Gorsuch and Kavanaugh), the Affordable Care Act and the millions it has covered are in deep trouble.

Abortion Rights and Contraception

According to the Alliance for Justice (AFJ), a progressive judicial advocacy group founded in 1979 with over 120 organizations, “conservative activists have vocally promoted Barrett as a candidate who would be a certain vote to overturn Roe v. Wade.” Its 2020 report quotes from an Americans United for Life report, which claimed “we are confident that Judge Barrett, if appointed to the Supreme Court, would prove she a trusted caretaker of the Constitutional protections extended to every human person in America, including human lives in the womb.” The group is an anti-abortion public interest law firm that also opposes euthanasia, assisted suicide, embryonic stem cell research and certain contraceptive methods.

Then there’s contraception. The AFJ says that when Barrett was a law professor at Notre Dame, she signed onto a 2013 letter written by the Becket Fund (which the Southern Poverty Law Center calls a “hate group”), which called the Obama administration “morally obtuse.” Why? To accommodate employers with religious beliefs who wanted to exclude health insurance coverage for “abortion-inducing drugs, sterilization, and contraceptives,” the administration said they wouldn’t have to pay for these services or inform their employees that they were entitled to them. Miffed by this modification, the letter complained this tactic simply shifted the onus onto the insurance companies, which would be required to inform employees that they are “entitled to the embryo-destroying pill” which would also be included in their health plans.

LGBTQ Protections

In her 2016 Jacksonville University talk, Barrett stressed that the issue about LGBTQ rights is “who decides” — whether it will be the courts or state legislatures. And, she suggests, it is the latter that should decide on marriage equality. Since Republicans control 29 states (where they have both the governor and legislative majority), the AFJ says this gives “the states a license to sanction discrimination.” In the same talk, she also said that the issue of allowing transgender women to use bathrooms designated for females “strains the text of the statute to say federal law demands protections.”

From 2015 to 2017, Barrett served on the board of directors of the Trinity School (a small private Catholic school in South Bend, Indiana). According to a Politico article, the school described homosexual acts as “at odds with Scripture” and said marriage is between “one man and one woman” — years after the Supreme Court made same-sex marriage a national right.In October 2017, Lambda Legal (a civil rights organization that represents the LGBT community), opposed Trump’s nomination of Barrett to the Seventh Circuit Court of Appeals, because she signed onto a letter to the Synod Fathers “from Catholic Women.”It said “we give witness that the Church’s teachings…on marriage and family founded on the indissoluble commitment of a man and a woman….provide a sure guide to the Christian life.”

Age Discrimination

In the case where a 58-year-old man applied for a job but was turned down in favor of a 29-year-old employee with less experience, Judge Barrett, with two other Trump-appointed judges, said the Age Discrimination Employment Act did not protect him. Why? The Act would only apply if the man was already an employee, competing for a job against a younger employee. It did not apply, she said, to someone applying for a job for the first time. A dissenting judge called this “baffling,” since the Act’s main goal wasto prevent age discrimination in hiring. The AARP weighed in, saying the decision “takes us back to 1967” when age limits were common.

Workers’ Rights

In another case, Judge Barrett said a driver for a national delivery company who asked for overtime wages did not have the right to them since he didn’t drive his vehicle across state lines. Thus, he was not protected by the Federal Arbitration Act and would have to ply his case through an arbitration process (which notoriously favors firms over workers). The driver’s lawyer chided the Court: “Certainly when Congress enacted the Act, it never foresaw it would be used to stop drivers from challenging their employer’s systematic violation of wage laws.”

Consumer Protection

The AFJ report says that while on the Seventh Circuit Court, Barrett has “consistently ruled in favor of wealthy and powerful businesses over the rights of American consumers.”

It cites a Federal Trade Commission (FTC) law that had long been used to protect consumers who had been duped by fraudulent ads (which claim that people can get their money back). Moreover, it points out that “nine different courts of appeals, including the Seventh Circuit, had agreed that the law empowers the FTC to force schemers to pay back the money they swindle.” But a Seventh Circuit panel of judges overruled lower court decisions and said the FTC did not have this power. Judge Barrett agreed with the panel.

Three other Seventh Circuit judges dissented. Chief Judge Diane Wood said “no court has ever tied the hands of a government agency in the way that the majority has done here.” Wood argued that the decision tossed out the status quo of 30 years and granted “a needless measure of impunity to brazen scammers, as in this case.”

For its part, the FTC insisted that “without the ability to pursue restitution, the law would be reduced to a stop sign and would effectively reward fraudsters for their illegal conduct.”

In another case that involved the Fair Debt Collection Practices Act, Judge Barrett said a woman could not dispute her debt with a collection agency because she had not put her claim against the company in writing. Thus, she could not be protected against “abusive debt collection practices.”

Immigration

In one case appealed to the Seventh Circuit, a majority of the judges ruled against a Trump attempt to deny immigrants the right to become residents if they had received public assistance or food stamps for a total of 12 months over a previous 36-month period— even though the benefits were approved by law. Judge Barrett dissented, siding with the Trump administration.

In a different immigration case, Barrett said the Trump administration was right when it denied a woman a visa because the consular officer claimed she tried to smuggle in two children who were not her own. However, the woman — who was the wife of an American citizen — proved that the children were, in fact, hers.

The AFJ report noted that other judges on the Seventh Circuit Court “condemned Barrett’s ruling.” A Reagan-appointed judge, Kenneth Ripple, noted that, “the consular officer may have operated on a “stereotypical assumption” when concluding the woman was smuggling children.” Even worse, he said, “We have the responsibility to ensure that such decisions, when born of laziness, prejudice or bureaucratic inertia, do not stand.” Judge Wood again disagreed with Barrett’s ruling, saying her opinion was a “dangerous abdication of judicial responsibility” and immigration officials could thus deny visas on the basis of their biases. Interestingly, this judge’s assessment contradicted the Republican senators who claimed at the Monday hearings that Barrett had earned the respect of the entire judicial community.

Gun Control

In yet another case before the Seventh Circuit Court, Judge Barrett dissented from the majority ruling, which said people with felony convictions could not buy guns. The case involved a man who’d committed mail fraud, cheating Medicare out of $400,000 — and later wanted to purchase a gun. The AFJ report said that the majority included two Reagan appointees, who said that, “Barrett’s position was in conflict with every appeals court that addressed the issue.”

In criminal cases, the AFJ says Barrett has ruled against both Fifth Amendment due process rights and Sixth Amendment rights to counsel. Also, she has attacked Miranda rights’ laws (which protect people from coercive police tactics that cause suspects to incriminate themselves), violating the Fifth Amendment. And in other cases, she has upheld police and prison guards’ use of force. Finally, the AFJ says she has tried to weaken criminal legal reforms that aim to reduce mandatory prison sentences.

To say Barrett’s judicial decisions do not bode well for tens of millions of Americans is a dramatic understatement. For the next few days, the Democratic senators on the Judiciary Committee will try to expose her biases. But in the end, the vote will rest on the Republicans’ majority. In that case, the senators’ (and much of the country’s) worst nightmare will be if Trump loses and contests the election, Barrett could well be the decider in a replay of Bush v. Gore — which would almost certainly mean four more years of Donald Trump.