How Barrett rules on them should offer a window into just how radical the newest justice is likely to be.
These four cases represent some of the most extreme arguments before the Court, and there are others that could well be revelatory. To be sure, Democrats should not necessarily heave a sigh of relief even if Barrett rejects the conservative position in each of these lawsuits. The votes she casts in these cases, and the specific legal arguments that she signs onto, may show us just how hostile the Court’s newest member is to democracy, and whether she’s willing to embrace deeply radical legal arguments that undermine progressive policy or punish interest groups aligned with the Democratic Party. The four cases below will likely help us gain an understanding of whether Barrett is a right-wing outlier, even within an increasingly conservative federal judiciary. Almost immediately after joining the Court, Barrett will confront cases that seek to move the law dramatically to the right - often relying on arguments that even many leading conservatives view as ridiculous. We don’t know how much she’ll feel bound by precedent, or whether she’ll be moved by public opinion in cases where conservative “originalists” like herself read the law in ways that are wildly at odds with the public’s preferences.īut these are contentious times, and the Supreme Court has an unusually contentious docket. But we don’t yet know if she will embrace the radical, even nihilistic approach preferred by someone like Justice Clarence Thomas, who has suggested that federal child labor laws are unconstitutional. We know that Barrett will be a very conservative justice. Similarly, while Barrett’s record suggests that she agrees with the Republican Party’s opposition to abortion and Obamacare, much of her scholarship discusses legal theory at a very high level of generality and offers little insight into how she would decide specific cases.
Barrett, however, would only offer a vague promise of “ fully and faithfully applying the law of recusal” if asked to sit out an election case. The incoming justice has been coy about whether she would do so - or even whether she will hear cases involving the 2020 election in the first place.ĭuring her confirmation hearing, Democratic senators repeatedly asked Barrett whether she would commit to recuse from cases related to the 2020 election, due to the appearance of impropriety created by Trump’s comments. President Trump has been quite clear that he thinks “it’s very important that we have nine Justices” if we have a contested election, strongly suggesting that Trump expects Barrett to rule in his favor if the election ends up in front of the Court. Just over one month after Justice Ruth Bader Ginsburg’s passing, the Senate voted almost entirely along party lines to confirm Judge Amy Coney Barrett to fill the vacant seat on the Supreme Court.
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