“I want you to use my words against me.”
These were the words of Republican Sen. Lindsey Graham during the 2016 Supreme Court confirmation hearings of Justice Merrick Garland. Graham, along with the Senate conservative majority, blocked Garland’s confirmation on the grounds that a Supreme Court Justice should never be appointed during an election year. Graham subsequently promised that even if the appointee were conservative, he would oppose their nomination for that same reason.
Four years later, Graham has proved his word to be meaningless.
Almost immediately after the tragic passing of former Supreme Court Justice Ruth Bader Ginsburg, President Donald Trump nominated Judge Amy Coney Barrett as the judicial nominee to fill the court’s vacancy. A mere month before the 2020 presidential election, Graham and many other Republican senators have enthusiastically endorsed Barrett’s confirmation.
This rushed nomination process, along with Barrett’s personal history, raises countless questions about Barrett’s ability to remain objective and the Republican Party’s underlying motives with her nomination. If confirmed, Barrett would solidify the court’s conservative majority in a 6-3 conservative to liberal split. Given the Republican agenda to strike down the Affordable Care Act and Barrett’s strong pro-life stance, many are concerned that her confirmation will result in millions of Americans losing access to healthcare and abortion.
These fears are in no way unfounded. But while Barrett may not appear to be an ideal candidate, her nomination may not be as destructive to American democracy as it may seem.
Firstly, Barrett is a strong believer in the judicial philosophies of stare decisis, textualism and originalism. Simply put, these terms mean that Barrett prefers to strictly interpret the Constitution and legal texts, as well as closely adhere to Supreme Court precedent — even if it collides with her personal beliefs.
In no way does her philosophy serve as a definitive indicator that she will truly remain objective when ruling on controversial issues such as the Affordable Care Act and abortion — especially considering that she provided virtually no insight on how she would rule during her confirmation hearings. However, her textualist approach gives Americans a morsel of hope that she may defer to precedent and set her personal beliefs aside in the interest of the American public.
Even if Barrett fails to set her views aside, this does not guarantee that citizens will instantly lose healthcare and abortion access.
In the case of abortion, conservative politicians have expressed a strong desire to overturn the Supreme Court case that legalized abortion — Roe v. Wade — with numerous Southern state governors passing bills to limit women’s access to reproductive care. Yet, to the relief of women, Roe has survived dozens of Supreme Court attempts to overturn the precedent, with pro-life and pro-choice justices alike frequently voting to strike down laws that sought to restrict abortions. Since Barrett is a firm believer in adhering to precedent, it is unlikely that she would vote to overturn Roe. Moreover, it is even less likely that abortion cases will reach the Supreme Court, given the myriad of cases that protect a woman’s right to choose.
Another controversial issue that Barrett will vote on if nominated is the Affordable Care Act, a healthcare law passed by former President Barack Obama. After years of failed efforts by Republican lawmakers to strike down the act in Congress, the Supreme Court will finally hear a case on Nov. 10 surrounding the constitutionality of Obamacare. Since Barrett is nominated by a president who is a staunch opponent of the law, there has been a lot of speculation that she would vote to overturn the Affordable Care Act, causing over 100 million Americans to lose their healthcare.
However, earlier this year, Barrett judged a moot court case about Obamacare, where she ruled to only strike down a small part of the act and leave the majority of the law intact. While this is merely a mock trial and may not truly reflect a Supreme Court case, it does indicate two key takeaways: that Barrett is open to the possibility of preserving Obamacare and that voting against the statute does not necessarily mean that it will be destroyed in its entirety.
Fears about Barrett’s controversial nomination are most certainly valid. Republican lawmakers’ hypocrisy and the rushed nomination process have made it clear that conservatives are desperate to secure a strong majority on the Supreme Court. Despite these questionable intentions, former Supreme Court rulings and Barrett’s textualist philosophy provide liberals with a glimmer of hope. While she may be a less than ideal replacement for the late Justice Ginsburg, Judge Barrett may not be as damaging to democracy after all.
Varshini Srikanthan is an Opinion Intern for the 2020 Fall Quarter. She can be reached at firstname.lastname@example.org.