By Andrew C. McCarthy
Tuesday, September 29, 2020
Doing some commentary over the weekend about President
Trump’s nomination of Judge Amy Coney Barrett to the Supreme Court, I was
struck by not just the emptiness but the outright deceptiveness of the three
main Democratic lines of attack against her. These are early days, so perhaps
Barrett’s opposition will find something of substance that gains some traction.
For now, the main salvos against her are frivolous:
(1) President Trump has a litmus test for nominees, who
must take predetermined positions that support his policy agenda; (2)
Relatedly, Judge Barrett will “destroy” the Affordable Care Act, consideration
of which comes up on the Supreme Court’s oral-argument docket the week after
Election Day; and (3) Barrett, a devout Catholic, is on a crusade to overturn Roe
v. Wade (1973).
I will take these in order.
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*
1. Litmus Test
There is no evidence that President Trump has imposed a
litmus test on judges whom he would nominate to the Supreme Court. That
Democrats say there is a litmus test, tirelessly, on every media platform
available to them, is not proof of anything other than a campaign to drive a
fact-free political narrative into the public’s consciousness. Specifically,
there is no evidence that Judge Barrett, in order to be nominated, had to agree
to take the Trump administration’s position of staunch opposition to Obamacare
and abortion. As I
noted on the Corner earlier today, it is not unusual for Trump-appointed
judges to rule against the administration.
Nor is there any indication that Judge Barrett would be
amenable to a litmus test. Consistent with her personal character, scholarship,
and jurisprudence, as well as the example of her mentor, Justice Scalia,
Barrett emphatically rejects the premise that it is the judge’s role to impose
policy preferences — whether the judge’s or anyone else’s — on the nation. She
has demonstrated that she believes the judge’s task is to decide issues that
arise in litigation based on the applicable law as it was understood at the
time of its adoption, guided by the law’s text and judicial precedent. If Barrett
is confirmed, she will confine herself, as she has done on the Seventh Circuit,
to resolving the cases that come before her in such a manner. That is a hard
enough job to do faithfully without looking for dragons to slay.
2. Eradicating
Obamacare
The notion that Judge Barrett, or for that matter the
other Trump appointees to the Supreme Court, are on the warpath against the
Affordable Care Act is laughable. The ACA issue is being contorted into a
convenient political talking point in the stretch-run of a presidential
campaign because President Trump, foolishly and reportedly
against the advice of Attorney General Barr, has supported a weak legal
challenge to the law. The case is California v. Texas, and the justices
are scheduled to hear arguments about it on November 10.
In my view, this is a rare case of conservative judicial
activism, which itself is very unconservative. That is, Texas federal district
judge Reed O’Connor, who is a fine judge, erred in this case by doing what
conservatives properly fault liberal judges for doing: He imposed a policy
preference, rather than deciding the case in accordance with the law and
leaving policymaking to Congress.
In 2017, with Republicans controlling the House and
Senate and with President Trump’s support, Congress zeroed out the penalty for
non-compliance with the Obamacare individual mandate. Notwithstanding scores of
proposals to “repeal and replace” the ACA, Congress did not do so; lawmakers
left the remainder of the complex legislative scheme in place.
Even so, 18 attorneys general from red states, aping the
destructive practice of their blue state counterparts, filed a lawsuit
theorizing that Congress had implicitly done what it had actually declined to
do, namely, repeal the ACA. Essentially, the red-state AGs (a) pointed out that
the Supreme Court (thanks to the legerdemain of Chief Justice Roberts) had
upheld the ACA as a tax in the 2012 case of National Federation
of Independent Businesses v. Sebelius (NFIB); (b) asserted that this
rationale for upholding the ACA is no longer valid because Congress’s 2017
zeroing out of the penalty (in the Tax Cuts and Jobs Act) means the mandate
cannot be a tax, there being no tax without a penalty; and (c) therefore argued
that, since the mandate was so central to the ACA, the entire ACA must fall.
For standing purposes, the 18 states were joined by two individuals alleging
concrete harm, and were supported by the Trump Justice Department (under
then-attorney general Jeff Sessions).
In late 2018, Judge O’Connor, a George W. Bush appointee,
agreed with the Republican AGs that the mandate could no longer be construed as
an exercise of Congress’s taxing power. Thus, he reasoned, since the tax construction
was what saved the ACA from constitutional infirmity in NFIB, and since
that construction is no longer justifiable after the 2017 legislation, the
mandate is perforce unconstitutional. Moreover, because the mandate is
inextricably tied to key components of Obamacare (including coverage of people
with preexisting conditions), O’Connor deduced that it is not severable from
the rest of the ACA, meaning the ACA is unconstitutional in toto.
Subsequently, the Fifth Circuit U.S. Court of Appeals
affirmed Judge O’Connor’s decision that the mandate is unconstitutional. But
the appellate court did not uphold O’Connor’s inseverability finding, reasoning
that the issue called for a more “granular” analysis. It therefore remanded the
case to O’Connor for a more exacting inquiry. California — leading a coalition
of 19 states plus the District of Columbia that support the ACA — pressed for
an immediate Supreme Court review, arguing that the implications for public
health care were too important to abide further doubt and delay. The Supreme
Court agreed to hear the case.
It takes more effort to provide that description of the
litigation than to tackle the bottom line. To my mind, the only question about
the Supreme Court’s resolution of California v. Texas is whether a
single justice will vote to hold the whole of the ACA unconstitutional. I doubt
it.
Indeed, I am skeptical that a majority of the Court will
even agree with Judge O’Connor and the Fifth Circuit that the mere zeroing
out of a tax is the functional equivalent of repealing it, such that
the mandate, technically, is no longer a tax. Regardless, though, the Court is
not going to hold that the mandate is inseverable from the rest of Obamacare.
You can take that to the bank.
We can be confident that there are at least five, and
probably six, solid votes for severability. Chief Justice Roberts and Justice
Kavanaugh emphatically endorsed the presumption in favor of severability just
last term (here
and here).
Justice Alito agreed with them, as did the three liberal justices remaining on
the Court after Justice Ginsburg’s death — Justices Breyer, Sotomayor, and
Kagan — who will surely vote to preserve as much of the ACA as possible.
Furthermore, I suspect Justices Thomas and Gorsuch will side with this majority
— and if they don’t, their position is apt to be even more deferential to
Congress. They have each suggested that the Court get out of the business of
analyzing severability and simply refuse to uphold any portions of a statute
found to be invalid, leaving the rest up to lawmakers. In addition, they would
be very stingy about who has standing to challenge statutes based on alleged
harms.
Contrary to the claim that there is a Trump litmus test
that requires killing Obamacare, there is actually no reason to assume that the
Trump appointees already on the Supreme Court (Gorsuch and Kavanaugh) are going
to vote to invalidate the ACA. The best bet on what a Justice Barrett would do
is that she would either (a) agree to follow the presumption in favor of
severability that the Court has recently reaffirmed; or (b) question whether
the plaintiffs challenging the ACA have standing and whether the Court should
do any severability analysis relating to parts of the ACA that are not properly
before the Court.
Of course, I could be wrong. Judge Barrett is very smart,
and she could have an analysis that none of us Court-watchers have thought of.
Still, there is no basis to believe that she is on a mission to eradicate the
ACA. This is an unfounded political talking point.
Politically speaking, President Trump shot himself in the
foot by ordering the Justice Department to support the red-state lawsuit. It
has little or no chance of prevailing, and it makes him vulnerable to the false
charge that he favors eliminating coverage for pre-existing conditions at a
time when COVID-19 and high unemployment have intensified voter concerns about
access to health insurance. Naturally, since one of the Democrats’ main
campaign themes is that Trump is bent on eliminating Obamacare, they are telling
people that getting Judge Barrett on the Court is part of that plan.
To the contrary, Barrett does not believe it is the
federal judiciary’s role to make health-care policy. There is scant reason to
presume that she would invalidate the ACA, and every reason to suspect she’d
point out that doing so is up to Congress, which could have repealed it but
opted not to.
3. Overruling Roe v.
Wade
No Supreme Court appointment by a Republican president
would be complete without the Left’s obligatory hysteria about the purportedly
imminent demise of Roe v. Wade, that indefensible exercise in judicial
lawlessness whose atrocious consequences include the deaths of millions of
unborn children. Once again, it’s a political narrative with little foothold in
the real world.
As
I pointed out when then-judge Kavanaugh was nominated, the Roe
argument is ill-founded. For over a quarter-century, we have been under the
sway not of Roe but of Planned Parenthood
v. Casey (1992). Casey gutted Roe’s reasoning, but left
the judicially manufactured right to abortion intact. It also dramatically
altered the arc of abortion litigation by acknowledging the interest of states
in protecting public health and unborn life. Consequently, the legal fights
over abortion now tend to center on regulation — i.e., does a regulation
of abortion that a state enacts further the state’s legitimate interests, and
does it so interfere with the availability of abortion that the woman’s right
of access to the procedure is rendered illusory? The core “right” posited by Roe
is not threatened by such challenges.
If a state were to try to ban abortion, that would
immediately prompt a federal lawsuit challenging the law. The federal district
court, being bound to apply Roe regardless of the judge’s own moral or
legal views on the subject, would instantly invalidate the state provision
(contrary to liberal caricature, conservative judges do not refuse to apply
binding precedent, regardless of their personal feelings about it). If there
were an appeal, the relevant federal appellate court would uphold Roe,
and the Supreme Court would almost certainly decline to review the case. This
is not a sure thing, but I suspect it is close to sure, much as I personally
wish it were not.
On the other hand, in the more likely event that a state
enacted a regulation that made abortion access more difficult, there would
quickly be a federal lawsuit challenging the provision under Casey, not Roe.
The Supreme
Court decided such a case this past term, prioritizing access to abortion
over state public-health regulation. Even if one assumed that a Justice Barrett
would look sympathetically on state regulation of abortion, as Justice Scalia
did, that would not eradicate the Roe abortion right.
Finally, let’s explore what the Left never mentions.
Let’s assume, for argument’s sake and against all indicia to the contrary, the
unlikely event that the Supreme Court went out of its way to overturn Roe,
after nearly half a century and despite its recent
emphasis on the supposed centrality of stare decisis (the doctrine
of adhering to precedent). Doing so would not criminalize, much less end,
abortion in the United States.
As Justice Scalia repeatedly explained,
“The States may, if they wish, permit abortion on demand, but the Constitution
does not require them to do so.” If Roe were overturned, the matter
would be returned to the states, where it should have been in the first place —
and would have been had the justices not presumptuously intervened in 1973, to
the great detriment of the Court’s reputation as a non-political judicial
institution and of the judicial-confirmation process.
If Roe were overruled, some very left-leaning
states, such as New York and California, would enact a regime of abortion-on-demand.
Some very conservative states, such as Alabama and Mississippi, would enact
significant limitations on abortion or perhaps even ban it outright. But access
to abortion, while more limited in some places, would not cease to exist. Would
the increased burden seem intolerable to pro-abortion activists? Of course it
would. Just as for those of us on the other side, who believe that abortion is
the taking of innocent human life, the continued availability of abortion would
seem intolerable. That is how democracy in a federalist republic is supposed to
work.
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*
There is no Trump litmus test for Supreme Court
appointees. The Court is not poised to invalidate the Affordable Care Act, with
or without Judge Barrett. Roe survived 30 years of searing dissents by
Justice Scalia; it will likely survive a Justice Amy Coney Barrett. And
regrettably, abortion will survive no matter what happens.
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