Today, Explained - Amy Coney Barrett

Episode Date: September 29, 2020

President Trump’s Supreme Court nominee first garnered attention after being questioned about her Catholic faith. Vox’s Ian Millhiser says that attention likely motivated her nomination. Transcript at vox.com/todayexplained. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Visit connectsontario.ca. Last week, Ian Millhiser, who covers the Supreme Court for Vox, told me that President Trump would probably choose Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg on the Supreme Court. And over the weekend... Judge Amy Coney Barrett. That's exactly what happened. Ian, tell us who she is. Sure. So Judge Barrett is a young and very conservative judge. She's only been a judge for about three years. Three years?

Three years. Yeah. She was also a law professor for nearly two decades. And so she has a thick scholarly output. And when we look at the stuff that she wrote as a law professor, that confirms, you know, I don't want to go quite so far as to say that she would be the opposite of Ruth Bader Ginsburg. But it's going to be a very sharp right turn on the Supreme Court if she is confirmed. There's been a lot of focus on her religion. Why is that? Oh, boy. So this is a huge can of worms. Judge Barrett is Catholic. If you're asking whether I take my faith seriously and I'm a faithful Catholic, I am, although I would stress that my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge.

And I want to be clear, because if I am not absolutely clear about this, the Twitter trolls will come at me for it. There is nothing wrong with the fact that she is Catholic. And as far as I know, no one objects to the fact that she is Catholic. I mean, Joe Biden is a Catholic. Sonia Sotomayor, who was President Obama's first appointee to the Supreme Court, is Catholic. Some of my favorite parents are Catholic. Right. Like, there is no serious objection to Catholicism. But Judge Barrett often expresses her political views in explicitly religious terms.

You know, there's one document where she endorsed the Catholic Church's conservative views on abortion, on marriage, on sexuality. people, particularly Senator Dianne Feinstein, have not been careful enough in their rhetoric in the past in making it clear that they are objecting to her political views and not to her Catholic faith. What did Dye Fine do? Oh, boy. Did I just open up a can of worms in a can of worms? No, I mean, this is one of the worst examples of senatorial incompetence I have ever seen. So when Judge Barrett was up for confirmation to her current job, Dianne Feinstein, Senator Feinstein, who's the top Democrat on the Senate Judiciary Committee, was questioning her. Why is it that so many of us on this side have this very uncomfortable feeling. And in the course of the questioning,

Feinstein drew a distinction between the law and religious dogma. You know, dogma and law are two different things. And then she said to Judge Barrett, The dogma lives loudly within you. The dogma lives loudly within you. The dogma lives loudly in you. That's of concern. Wow. Yeah.

And so because of these very unfortunate words that Senator Feinstein used, it made her into a kind of persecuted martyr in Christian right circles. The left's hypocrisy on her is so thick you could choke on it. What conservative Catholics saw as an attack on their faith soon became a rallying cry. You can now buy t-shirts that read, the dogma lives loudly within me. There have been more editorials and op-eds than I can count, attacking Feinstein for that, presenting Barrett as someone who was unfairly persecuted.

And I suspect that this played a big role in why she's the Supreme Court nominee now. This should be a straightforward and prompt confirmation. It should be very easy. Good luck. It's going to be very quick. I'm sure it'll be extremely non-controversial. We said that the last time, didn't we? I mean, is there anything in her three-year judicial record that suggests that her Catholic faith is an important part of her jurisprudence? I mean, the specific fear that a lot of liberal groups expressed about Judge Barrett was that she would allow her Catholic faith to override her obligation to the law. And we have not seen that particular fear borne out. There was a case involving buffer zones around abortion clinics and basically whether going to strike this law down, even though the Supreme Court has said I must have held it. She joined an opinion that said, basically, this law is crap. If it were up to me, we'd strike it down. But the Supreme Court has

said that this is good and we have to follow the Supreme Court. So what that opinion shows is it shows a very conservative judge. It shows a very anti-abortion judge, but it does not show a judge who, like, whenever the outcome in a case conflicts with what the Catholic Church teaches, reflexively chooses what her religious beliefs would dictate. Okay, fair. Well, beyond being like a quasi symbol of someone who was persecuted for her religion, why pick someone with three years of experience on the bench to replace Ruth Bader Ginsburg, who was this wildly experienced litigator and law professor before becoming a judge for many, many years on the D.C. Court of Appeals, right? Right. I mean, some of it, I think, is that Trump hopes to gin up his base by playing into this line that she was somehow persecuted because of her faith. Some of it is that, you know, Trump's first two nominees were fairly early in his presidency. So he had to rely mostly on the people that George W. Bush put on the the federal bench in order to, you know, come up with a list of nominees.

Now he has his own list. He has people that he's picked himself. And so I think that plays into it as well. And the other thing I'll say is that in the case of Judge Barrett, I mean, three years is not a long judicial record, but I think it's enough to get a pretty clear read on her. You know, she has two opinions where that she's joined, which signals fairly clearly that she opposes abortion rights. She has a Second Amendment opinion where she dissented to the right of two conservative Reagan appointees. She wrote a book review in 2017 that seems to suggest that she would have struck down the Affordable Care Act if she'd been on the court when two cases seeking to undermine the Affordable Care Act were before it.

What record she has is enough to verify this is going to be a very, very conservative justice if she is confirmed. The cases a Justice Amy Coney Barrett could very soon hear on the Supreme Court after a break. Support for Today Explained comes from Aura. Aura believes that sharing pictures is a great way to keep up with family, and Aura says it's never been easier thanks to their digital picture frames. They were named the number one digital photo frame by Wirecutter. Aura frames make it easy to share unlimited photos and videos directly from your phone to the frame. When you give an Aura frame as a gift, you can personalize it, you can preload it with a thoughtful message, maybe your favorite photos. Our colleague Andrew tried an Aura frame for himself.

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I am truly humbled by the prospect of serving on the Supreme Court. Ian, how soon could Amy Coney Barrett be on the Supreme Court? Republicans have been talking as soon as October 29 for a confirmation. And what's important about that October 29 date is that would be a few days before the election. I think this will end up in the Supreme Court. And I think it's very important that we have nine justices. Several Republicans, including Trump, have been very clear that they want Barrett on the court in time for any election-related disputes,

which I think has raised very real fears that they want her on the court because they think that if there's a contested election, she will throw the election to Trump. But just in case it would be more political than it should be, I think it's very important to have a ninth justice. And when did the Supreme Court start hearing cases again? So the new term begins October 5th on the first Monday of October. So really, really soon. Really soon. Yeah, the court's going to be back very soon.

Well, before we go to the election, let's talk about the cases Justice Amy Coney Barrett would hear in her first term on the court. So there's two cases that I think are worth highlighting. One is the latest attack on Obamacare. The U.S. Supreme Court will take up a legal challenge to the Affordable Care Act. The issue at hand is regarding the constitutionality of the law's individual mandate. This is the third time that Republican lawyers have been in the Supreme Court trying to get the Supreme Court to demolish the Affordable Care Act. And it is the stupidest legal argument I have ever seen. It's awful. So like,

essentially, they argue that when Congress reduced the penalty for not having health insurance to zero dollars, they effectively eliminated the individual mandate, that what Congress secretly did when it repealed just the individual mandate is it actually repealed the entire Affordable Care Act. And so now the Supreme Court has to go in and, like, realize this secret thing has happened and dismantle the whole law. I mean, I could go into more detail, but if I spend an hour explaining their legal theory to you, it would just sound stupider. It's really dumb.

And so, you know, the hope is that even someone like Amy Coney Barrett, who's very, very conservative, would look at this and say, oh, hell no, that's too dumb. But three Republican judges have already largely signed on to this legal theory. You know, in order for Obamacare to survive, Democrats have to pick up not just Chief Justice Roberts, who I think was likely to do so, but one other Republican. And I think there's a real question as to whether there is a second Republican vote who will say, you know, this is too partisan. This is too silly. This legal argument is too stupid. You know, I think that there is going to be a temptation here to put their politics before the law. So on Obamacare's third go in front of the Supreme Court, it could potentially die. Yes.

And that would be a doozy. That would. I mean, the number that gets thrown around a lot is 20 million people would lose their health care. But that 20 million figures from before the pandemic and before millions of people lost their jobs and with it, their employer provided insurance. So I don't know what the number is now, but it could be, you know, $25 or $30 million when you account for all of these people who

are now depending on Obamacare because they no longer have a job that they can use to get employer-provided insurance. Well, it's hard to think of anything that could be more consequential than that. But what else is on the docket for the Supreme Court in this fall term? So the second case that I'm keeping a very close eye on is this case called Fulton. Fulton involves this issue that keeps coming up about whether or not people with religious objections to LGBT people are allowed to discriminate against them when the law says that they aren't. Didn't they just hear a case like this in the last term? In 2017, they heard a case called Masterpiece Cake Shop that involved a baker who didn't want to provide a wedding cake to a same-sex couple. There are other cakes I know you don't create on religious grounds, such as?

I don't create cakes for Halloween. I wouldn't create a cake that would be anti-American or disparaging against anybody for any reason. Even cakes that would disparage people who identify as LGBT. Just cakes have a message, and this is one that I can't create. But that case kind of was resolved without much of an answer. The baker won, but on extraordinarily narrow grounds, and the broader question of whether people of faith can ignore civil rights laws is still open. And last term, there was a case called Bostock. The Supreme Court ruled the 1964 Federal Civil Rights Act

protects employees from being fired for being gay or transgender. Bostock didn't deal with the religion issue at all. Bostock dealt with whether or not a current law banning employment discrimination specifically bans discrimination on the basis of sexual orientation and gender identity. The Supreme Court said, yes, it does. So in theory, it's illegal to fire someone because they're gay or they're bi or they're trans. In practice, however, if the Supreme Court says that religion is a license to disobey an anti-discrimination law, Bostock might not wind up meaning very much in the long run. Okay. And the reason why is all of these past cases like Masterpiece Cake Shop dealt with a private business owner and the private business owner wanted to be able to discriminate within the sphere of his own

property, within the sphere of his own business. Fulton involves a government contractor. The city of Philadelphia contracts out certain services dealing with foster children to private entities, including in this case, Catholic Social Services. And Catholic Social Services says that it wants to be able to discriminate against same-sex couples when it's providing these foster services for the government. It would be really extraordinary if the Supreme Court were to say that the government is not allowed to say that it won't discriminate and it's not allowed to order its employees and its contractors not to discriminate. You might remember the Kim Davis case a while back where there was a local clerk who refused to provide marriage licenses to same-sex couples. To affix my name or authoritative title on a certificate that authorizes marriage that conflicts with God's definition of marriage as a union between one man and one woman violates my deeply held religious convictions and conscience.

And so if Fulton says that government contractors have a religious right to discriminate, the next step would be they could say that government employees have a religious right to discriminate. And it would really just be extraordinary. You know, again, it's one thing to say that private business owners can operate their own business according to their religious beliefs. It's another thing altogether to say that a religious organization can effectively force the government to operate according to the religious beliefs of that private organization. OK, so Fulton, Obamacare, huge cases coming up on this fall docket. And then of course, there's the election, which you alluded to. How might the confirmation of Justice Amy Coney Barrett have an effect on this election? So the short answer is we don't know. You know, the question is whether we're going to be in a Bush v. Gore situation where you have five justices who just think they would rather have the Republican in the White House or whether she's capable of saying, look, if we do this, like there could be civil unrest and it could lead to an illegitimacy crisis or worse.

We do not want that. And I'm sure the Supreme Court is hoping to not have to decide this election. And I'm also sure much of the country would prefer the Supreme Court not decide this election. But barring that, I mean, what does Amy Coney Barrett's potential confirmation to the Supreme Court mean for the next generation of this bench? Barring court packing, unless Democrats win such an enormous victory in November that they have the votes to add additional seats to the Supreme Court and fill them with Democrats,

Amy Coney Barrett's going to, I mean, she's 48 years old, so she's going to be with us for 30, 40, you know, many, many years to come. This is the culmination of a project that has gone on probably for the last several decades to entrench minority rule in this country. And, you know, and here's what I mean by this. Donald Trump lost the popular vote by nearly three million votes. Republicans control the majority in the Senate, but the Republican majority actually represents 15 million fewer people than the Democratic minority. It's only because the Senate is so malapportioned that Republicans control a majority.

The first Supreme Court justice in American history to be nominated by a president who lost the popular vote and confirmed by a block of senators that represent less than half the country was Trump's first appointee, Neil Gorsuch. The second was his second appointee, Brett Kavanaugh. And the third is likely to be Amy Coney Barrett. I fully understand that this is a momentous decision for a president. And if the Senate does me the honor of confirming me, I pledge to discharge the responsibilities of this job to the very best of my ability. So this has never happened before Donald Trump. We're now likely to have a third of the Supreme Court controlled by justices who have no democratic legitimacy. And that's, I think, very frightening. You know, most Americans think that they live in a democracy. But because of the pathology of how

we pick our presidents, how we pick our senators, and ultimately how we pick our judges, it means that a body that lacks democratic legitimacy is going to be striking down laws potentially for the next 30 or 40 years. Ian Millhiser covers the Supreme Court for Vox. You can find all of his writing at vox.com. I'm Sean Ramos-Furham. This is Today Explained. Thank you.