The confirmation of Supreme Court Justice Amy Coney Barrett has many progressives concerned about issues that affect families. Although Barrett has been identified as a “conservative” there is no clear indication of how she will rule as a Supreme Court Justice.
Does her confirmation really change the landscape of the Supreme Court, and which family-related issues may fall under scrutiny if it does?
What We Know So Far
Justice Barrett has been confirmed to a Supreme Court that already held a conservative majority. So, while her confirmation definitely reinforces that leaning, it doesn’t necessarily change it. However, because she is replacing a liberal judge in Ruth Bader Ginsburg it may result in the Supreme Court hearing more cases that might split the conservatives on the court.
There is no way to anticipate how Barrett will rule as a Justice, “Although she is likely to be a conservative judge, there may well be specific issues on which she too will depart from views of some of the other conservatives on the Court,” Keith E. Whittington, Professor of Politics at Princeton University tells Parentology.
The Supreme Court does not have the power to legislate, only the power to determine the constitutionality of existing statutes. While many cases are brought to the Court, the Court also has the ability to discern which cases it will hear. The issues that many liberals are watching include cases that involve marriage equality, abortion rights, and the Affordable Care Act.
While marriage equality is one of the newest issues decided by the Court, it’s doubtful that it will be revisited.
“It seems unlikely that the Court will take up a frontal challenge to the same-sex marriage decision, and even if such a law emerges out of a state legislature it seems doubtful that there is a majority on the Court that would be willing to reverse that decision,” according to Whittington. He goes on to explain that the Supreme Court does take into consideration the public sentiment and the view on marriage equality is vastly different than it was even when it was passed in 2015.
“ Families have been formed under the new legal regime, and public sentiment has shifted dramatically in favor of same-sex marriage,” he explains. “Most of the justices would probably be reluctant to try to undo that decision at this point.”
Roe v. Wade has been controversial since it was decided in 1973. Whittington does not expect that to change with the confirmation of Barrett.
“Unlike same-sex marriage, abortion rights continue to divide Americans, and the policies surrounding abortion have been more fluid over time,” he says.
There will likely be more challenges to abortion rights as individual states have historically tried to legislate restrictions and ultimately made their way to the Supreme Court. The Court has been reluctant to remove the right to an abortion but has seen fit to impose restrictions in recent years.
“Since the 1990s, the Court has accommodated more restrictions on abortion while declining to simply push abortion rights beyond the protections of the Constitution,” Whittington says.
The Affordable Care Act
The Affordable Care Act (ACA) may be the most prominent issue because its constitutionality is set to be reviewed again by the Supreme Court in California v. Texas on November 10, 2020. The ACA does not allow insurance companies to discriminate against consumers for pre-existing conditions, so many families could be affected if it no longer exists.
Again, Whittington says that is highly unlikely. “Most experts do not expect the Court to strike down the Affordable Care Act in the current round of litigation.”
This will not be the first time that Chief Justice Roberts and the Court have been asked to rule on the ACA. In 2012, it was brought before the Court and remained intact. Whittington believes that the upcoming case will be similar.
“It is extremely unlikely that a majority of the justices will determine that 2017 changes rendered the entire statute invalid,” he tells Parentology. He also cautions that something like the ACA is not an all or nothing sort of a proposition, so even if the Court rules that a portion of it is not constitutional, that doesn’t mean that Americans would be denied their existing healthcare. “Even if the Court were to conclude that the penalty provision was integral to the individual mandate and could not be severed, that would still leave most of the Affordable Care Act in place.”
How Will Amy Coney Barrett Rule?
Each Justice brings with them a unique perspective on the Constitution and how it should be interpreted. The confirmation of Justice Amy Coney Barrett will certainly impact the way the Supreme Court rules to some degree, as would the installation of any new Justice. While there are certainly issues that will be worth watching, there appear to be many factors that influence the way the Court rules that span far beyond any one Justice.
How Will Amy Coney Barrett Rule — Sources
Supreme Court Of The United States
Keith E. Whittington, Professor of Politics, Princeton University