Democracy Dies in Darkness
Amy Coney Barrett wouldn’t transform the court more than any other justice
Opinion by Michael W. McConnell
September 29, 2020 at 12:42 p.m. PDT
Michael W. McConnell is the Richard and Frances Mallery professor of law and director of the Constitutional Law Center at Stanford Law School and a senior fellow at the Hoover Institution. He formerly served as a judge on the U.S. Court of Appeals for the 10th Circuit.
Americans have enough divisive matters to worry about — not least a potentially contested presidential election — without being driven crazy over a Supreme Court appointment. A little calm is in order. The appointment to replace the late Justice Ruth Bader Ginsburg is certainly important. And it’s easy to understand why most Americans think the choice should be made by whoever is elected in November, especially given what happened — or did not happen — with President Barack Obama’s nomination of Merrick Garland in 2016. But confirming Judge Amy Coney Barrett would not “transform the court for a generation.” It also would not end abortion rights or destroy the Affordable Care Act.
Justices come and go, and the balance of power on the Supreme Court shifts back and forth. It seldom stays the same for long. Ginsburg was the most left-progressive member of the court, close to Justice Sonia Sotomayor but certainly more liberal than Justices Stephen G. Breyer and Elena Kagan. Any Republican president’s appointee, however moderate, would therefore move the court toward the center or the right.
But the three oldest justices, and therefore the three most likely to leave the court in the coming years, are Breyer (82), Samuel Alito (70) and Clarence Thomas (72). Breyer is the most moderate of the Democratic appointees. Replacing him with a progressive Democrat would be like replacing Justice Sandra Day O’Connor with Alito (as happened in 2006). Thomas and Alito are the most conservative members of the court. Assuming that a Democrat is elected in the fall, the court could easily be dominated by its left wing again, in just a few years, even with Barrett on the bench.
This is not a reason for Barrett’s opponents to support her, but it is a reason for everyone to calm down.
Even the current court, with a solid majority of five conservative-seeming justices, has decided many of the most important cases over the past year in favor of the liberal position. Consider Bostock (interpreting Title VII to apply to same-sex and transgender discrimination), Regents (striking down Trump’s revocation of Deferred Action for Childhood Arrivals, or DACA) and Vance (allowing the New York district attorney to subpoena Trump’s financial records). This is because modern conservative legal theory is primarily about methodology rather than results.
What about abortion rights? Well, in confirmation battles going back to the 1980s, abortion rights advocates have predicted that every nominee by a Republican president, if confirmed, would mean the reversal of Roe v. Wade. Yet it / has never happened. Republican presidents have filled nine seats since Ronald Reagan was elected president; nine times the nation was warned that Roe was on the chopping block. Somehow, the blade never falls. Roe was reaffirmed this summer, in effect, by June Medical, with a majority opinion written by Chief Justice John G. Roberts Jr., an appointee of President George W. Bush. Roe is the Road Runner of all precedents. Wile E. Coyote just never catches up.
There are reasons Roe is so resilient — and one of them is not the legal persuasiveness of the opinion, which is nil. But the ruling is nearly a half-century old and has been reaffirmed multiple times by justices of both parties. Such a decision will not be lightly overruled. And whatever one may think of abortion, the practice is so widespread and ingrained, and the right to it so intensely defended by a significant minority of Americans, that trying to use the force of the state to end it would wrench the nation apart — while almost surely failing.
The politics would not be kind to pro-lifers. Right now, abortion-related disputes concern marginal cases (such as late- term abortions, parental consent, sex-selective abortion and disposal of fetal remains) where public opinion is divided and the majority might even support increased restrictions. If Roe were overruled, the debate would shift to out-and- out prohibitions, where public opinion is squarely on the side of abortion rights. Republican Party primaries would feature fights to the death between purists and compromisers, and a united pro-choice Democratic Party would gain the advantage.
The notion that a Barrett appointment will mean the invalidation of the Affordable Care Act is even more far-fetched. True, a case seeking the ACA’s end has reached the Supreme Court and will be decided in the coming term. But most legal observers — even conservatives with no affection for Obamacare — think the legal basis for the challenge is laughably weak, and wonder if even one justice (let alone five) will buy it.
That does not mean the Barrett nomination does not matter. A Justice Barrett is unlikely to lead the court in more progressive directions, and more likely to read statutes and the Constitution to mean what they say, and not what liberals want them to say. But that would be nothing more than the customary give-and-take of Supreme Court litigation. It is not sufficient reason to tear the country apart.
Read more:
Ruth Marcus: The bombshell consequences of Amy Coney Barrett
George Will: A useful litmus test for the next Supreme Court justice
The Post’s View: The Senate should ignore Amy Coney Barrett’s nomination
David Cole: This is the Supreme Court’s tipping point
John Garvey: I taught and worked with Amy Coney Barrett. Here’s what people get wrong about her faith.
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