The Top Contender for RBG’s Seat Has a Fundamentally Cruel Vision of the Law
Here’s what we can expect if Trump fills the late justice’s seat.
She is a hardcore conservative, but that description doesn’t quite capture how radically her jurisprudence differs from Ginsburg’s. The justice viewed the Bill of Rights and civil rights acts as generous guarantees of human dignity that must be read expansively to achieve their purpose. By contrast, Barrett’s view of the law is fundamentally cruel. During her three years on the 7th Circuit Court of Appeals, Barrett has either written or joined a remarkable number of opinions that harm unpopular and powerless individuals who rely on the judiciary to safeguard their rights.
Faced with two plausible readings of a law, fact, or precedent, Barrett always seems to choose the harsher, stingier interpretation. Can job applicants sue employers whose policies have a disproportionately deleterious impact on older people? Barrett said no. Should courts halt the deportation of an immigrant who faced torture at home? Barrett said no. Should they protect refugees denied asylum on the basis of xenophobic prejudice? Barrett said no. Should they shield prisoners from unjustified violence by correctional officers? Barrett said no. Should minors be allowed to terminate a pregnancy without telling their parents if a judge has found that they’re mature enough to make the decision? Barrett said no. Should women be permitted to obtain an abortion upon discovering a severe fetal abnormality? Barrett said no.
There is no question that, if confirmed, Barrett would cast the fifth vote to either hollow out Roe v. Wade or overturn it altogether. Similarly, there is no doubt that Barrett would dramatically expand the Second Amendment, invalidating gun control measures around the country. It’s quite possible, perhaps even likely, that within a year of her confirmation, Americans will be forbidden from terminating a pregnancy in 21 states—but permitted to purchase assault weapons and carry firearms in public in every state.
Abortion and guns, however, are just the beginning. Barrett’s confirmation would heighten the odds that the Supreme Court will eradicate the entire Affordable Care Act in 2021, stripping health insurance from more than 20 million people. Red states challenged the law after Congress zeroed out the penalty for those who forgo health insurance in 2017, a frivolous challenge that nonetheless found support among conservative judges in the lower courts. Chief Justice John Roberts, who twice saved the ACA, seems unlikely to kill it now. Barrett has criticized Roberts’ 2012 opinion saving the law, suggesting she would join the other four conservatives to destroy it root and branch. That decision would reverse Medicaid expansion, abolish the exchanges and federal subsidies for insurance, end protections for preexisting conditions, erase what’s left of the contraceptive mandate, allow insurers to kick young adults off their parents’ plans, and much more. All available data indicates that people will die as a result of such a ruling.
