Justice Amy Coney Barrett confirmed by divided Senate

On Oct. 26, Judge Amy Coney Barrett was confirmed by a 52-48 vote in the U.S. Senate to become the next Associate Justice of the U.S. Supreme Court. Sen. Susan Collins of Maine was the only Republican senator to join with Democratic senators in voting against Barrett.

At 48 years old, Barrett is the youngest justice on the court. She is the fifth woman to sit on the Supreme Court, and the second female justice nominated by a Republican president.

Her confirmation comes after a week of public hearings in the Senate Judiciary Committee where senators, including Democratic vice presidential nominee Sen. Kamala Harris, questioned Barrett about her experience and how she would rule on issues that reach the Supreme Court.

Barrett was reluctant to answer questions about her views on Supreme Court precedents surrounding issues like abortion, LGBTQ+ protections and voting rights. Notably, Barrett refused to say how she would rule on California v. Texas, a case that will be heard by the court shortly after the election and will decide the fate of the Affordable Care Act.

Strategic silence on controversial issues in confirmation hearings has become the standard after Judge Robert Bork, nominated for the Supreme Court by former President Ronald Reagan in 1987, was rejected by the Senate after being candid in his hearings about his conservative interpretation of the Constitution.

Even outside the relative normalcy of Barrett’s answering strategy, Dr. Robert B. Pamplin Jr. Associate Professor of Government Todd Lochner said that what Americans saw in Barrett’s confirmation hearings was nothing new.

“(The hearings were) normal in that they really don’t matter,” Lochner said. “That is, confirmation hearings at this point have become theater. It’s exceptionally unlikely that what goes on in a confirmation hearing is ever going to swing the opinion of a senator.”

However, the fact that Barrett’s confirmation hearings occurred so close to the 2020 presidential election allowed for Democratic senators to use their questions to highlight issues important to Democratic presidential nominee Joe Biden’s campaign platform.

“One thing that is slightly unusual, slightly different than in the past is because this has been so close to the election, the Democrats really made an effort to focus their presentations on the Affordable Care Act and healthcare more generally to basically dovetail with Biden’s presidential messaging,” Lochner said. “So there’s a symmetry there that you normally wouldn’t find if you were having a confirmation hearing, say, in an off-year.”

Barrett’s confirmation to the Supreme Court cements its conservative majority, with six justices who tend to support rulings that align with conservatives and three who tend to support liberal outcomes. This makeup of the court will have a significant impact for the next several decades.

“It would mean a lot, particularly because the new conservative justices are fairly young, so I would expect that they would have a lasting influence for at least the next 30 years,” Lochner said. “Also, when you kind of look at the people who are most likely to retire from the court coming up, it’s going to be (Associate Justices Clarence Thomas and Stephen Breyer), so that’s kind of a trade-off there, essentially one conservative and one liberal.”

Even if Biden were president in this scenario and was able to replace both Thomas and Breyer with liberal justices, the Supreme Court would still have a 5-4 conservative majority.

According to Amelia Thomson-DeVeaux, a senior writer for FiveThirtyEight, Martin-Quinn scores that use Supreme Court justices’ decisions to place them on a liberal-conservative spectrum show that Barrett’s replacement of Associate Justice Ruth Bader Ginsburg is the third-biggest shift in the court’s modern history. The last comparable shift occurred when Associate Justice Thurgood Marshall, the most liberal justice on the court at the time of his retirement in 1991, was replaced by Thomas, who is now the most conservative justice.

While nobody can say with certainty how much Barrett’s personal religious and political beliefs will influence her rulings, there are questions about the fate of same-sex marriage and abortion rights under a court with six conservative justices.

In a recent statement, Thomas and Associate Justice Samuel Alito signaled that they would both be in favor of overturning Obergefell v. Hodges, the landmark case that established marriage equality in the United States in 2015.

When asked if Barrett’s confirmation to the court puts marriage equality in danger, Lochner had a one-word answer: yes.

Although Chief Justice John Roberts voted against marriage equality in Obergefell, Lochner said he would likely refuse to hear a case regarding same-sex marriage in order to protect the court’s legitimacy. However, only four justices must approve of hearing a case for it to come before the court, and with five conservative justices besides Roberts, Lochner said that the end of marriage equality is likely.

“(As) long as four of them voted to take the case, at that point it forces Chief Justice Roberts’ hand and he has to reach the merits of the case, and there’s only one way he can answer that because he’s already answered that question,” Lochner said. “So yeah, politically they might not do it in the first year, but I would expect Obergefell to be overturned.”

Before Barrett’s confirmation, LC’s Queer Student Union (QSU) submitted an email statement to The Pioneer Log regarding its opinion of Barrett.

“As QSU coordinators and members of the queer community ourselves, it is disgusting and saddening that our rights continue to be contested on a legal level,” QSU said. “Judge Barrett’s future plans and past statements against marriage equality and transgender rights serve only to harm our community to the greatest extent, and the possibility of her confirmation speaks to the tragic state of the country under the Trump administration. This being said, we urge the (Lewis & Clark) community to continue having conversations with those around you and encouraging them to vote for an administration whose policies will celebrate and support LGBTQIA+ rights.”

As for reproductive rights, many opponents of Barrett worry that she might vote to overturn the 1973 case Roe v. Wade, which first established the constitutional right to have an abortion.

Lochner said that abortion regulations are likely to become stricter regardless of whether the Supreme Court officially overturns Roe.

“A lot of people are debating whether Roe would be explicitly overturned, and it’s symbolically important, but the reality is you can essentially overturn Roe by just chipping away at it to the point where it’s still technically the law, but so many anti-abortion regulations are allowed that you can shut down clinics in the state, and that’s kind of what I expect to see happen,” Lochner said.

When asked whether LC students should care about the Supreme Court, Lochner had a sarcastic answer that highlighted a long list of the potential social, economic and political impacts of court decisions.

“Well, except for the abolition of reproductive rights, abolition of gay marriage, possible reimposition of anti-sodomy laws, gutting of environmental regulations and the regulatory state more generally, weakening of labor unions, erosion of the constitutional rights of criminal defendants, further retrenchment of the Voting Rights Act and subsequent efforts of voter suppression, short of those, no, I can’t think of any reasons they’d want to care about the Court,” Lochner said.