Trump’s legacy is now the Supreme Court
Nominating three people to the court joins impeachment
and his criticized coronavirus response as the events that will define Trump's
first term.
By ANITA
KUMAR
09/26/2020
08:41 PM EDT
https://www.politico.com/news/2020/09/26/trump-legacy-supreme-court-422058
Years from
now, President Donald Trump’s divisive rhetoric, his haphazard hirings and
firings, even his tweets, will all eventually fade into memory. Other
presidents will erase his executive orders.
His Supreme
Court picks, however, will stay.
They will
likely outlive Trump. They will likely ensure a conservative tilt for decades
to come. And they will likely mark one of the most dramatic ideological
turnarounds the court has seen in such a short timespan in generations.
With his
selection of Judge Amy Coney Barrett to fill a vacancy on the Supreme Court
Saturday, Trump has made his third nomination to the high court in just under
four years. If Barrett is confirmed, Trump will have nominated the most
justices on the court in one term since President Richard Nixon. She would join
Trump’s other appointments, Neil Gorsuch and Brett Kavanaugh, to form a 6-3
conservative majority.
It’s a fact
Trump is likely to love. He’s known to obsess over legacy — both eroding that
of his predecessor, President Barack Obama, and establishing his own. With the
Supreme Court, he’s just happened to be able to achieve both. At a White House
Rose Garden ceremony introducing Barrett on Saturday, Trump appeared to relish
that piece of his legacy as he stood alongside Barrett, gazing out on hundreds
of invited guests. American flags were positioned along the colonnade.
“This is my
third such nomination,” he said, “and it is a very proud moment indeed.”
Presidential
historian Douglas Brinkley said that with the Barrett nomination, the reshaping
of the Supreme Court joins two other events that have already defined his first
term: his impeachment and his sluggish response to the coronavirus. And since
Trump hasn’t faced a major foreign policy crisis — unlike many other presidents
— those issues are even more prominent.
“There’s no
question that three Supreme Court justices is Donald Trump’s most tangible
accomplishment,” Brinkley said. “These are appointments that will change the
future of America for decades to come. It’s going to be indisputable.”
Barrett,
who has served on the 7th U.S. Circuit Court of Appeals since late 2017, would
replace a liberal icon, Justice Ruth Bader Ginsburg, who died last week.
Carrie
Severino, president of the Judicial Crisis Network, a conservative advocacy
group that has worked closely with the administration on judicial appointments,
said Trump has “arguably done more than any president in memory to restore
constitutionalism to the court.”
Democrats
acknowledged the seismic shift that is poised to come to the court. When Trump
entered office, the court was ideologically split down the middle, after Senate
Majority Leader Mitch McConnell blocked Obama’s nominee — who would have
ensured a progressive majority — during his final year in office.
“Everything
hangs in the balance with this nomination,” House Speaker Nancy Pelosi said in
a statement. She ticked off a laundry list of issues central to progressives:
“A woman’s constitutional right to make her own medical decisions about her own
body, the right of LGBTQ Americans to marry who they love, the right of workers
to organize and collectively bargain for fair wages, the future of our planet
and environmental protections, voting rights and the right of every American to
have a voice in our democracy.”
Trump is
pushing the Republican-controlled Senate to swiftly confirm Barrett before
Election Day, hoping to energize a presidential reelection campaign that has
struggled in a year ravaged by a recession and pandemic. Lagging far behind
Democratic nominee Joe Biden in both national and battleground states, he hopes
the Supreme Court will help bring skeptical social conservatives into his camp.
In a call
Saturday night after the announcement, Trump campaign leaders stressed to
staffers how important the nomination was to the race, citing 2016 exit polls
that show three out of four conservatives naming the Supreme Court as one of
their top priorities. Campaign officials said they planned to use the
nomination in mailers and in scripts to be used to persuade voters at doors and
on phones.
“This is
big,” Trump campaign political director Chris Carr said on a recording of the
call obtained by POLITICO. “This is big for our voters and our base and we’re
going to capitalize on that.’’
That plan
was visible just hours later. Trump flew to a rally in Pennsylvania, where the
campaign had erected a massive digital banner that read: "FILL THAT
SEAT." The phrase has even become a chant at recent Trump rallies.
Trump
frequently boasts about the hundreds of federal judges, including Gorsuch and
Kavanaugh, that have been confirmed during his tenure, even if he often
inflates the total number.
He has
appointed roughly a quarter of all active federal judges in the country and
more federal appeals court judges than any recent president at the same point
in a first term.
The Senate
has confirmed 218 of Trump’s nominations, including 53 judges for court of
appeals, 161 judges for the district courts and two judges for the Court of
International Trade. Another 34 nominations are awaiting action.
The Senate
Judiciary Committee expects to hold a confirmation hearing for Barrett the week
of Oct. 12. Both Trump and some Republican senators have said the Supreme Court
needs to have all nine justices on the court ahead of the election, in case
they need to step in to decide the result.
In 2016,
the Republican-led Senate refused to hold a vote on Obama’s nominee for a
vacancy, Merrick Garland, claiming it was because it was an election year. This
time around, McConnell has vowed to hold a vote on Trump’s nominee, arguing
it’s different this time because the White House and Senate are controlled by
the same party.
“With the
appointment of a Justice Barrett as his third Supreme Court pick, President
Trump will transform the 5-4 John Roberts court to the 6-3 Clarence Thomas
court,” said Mike Davis, who worked on the Gorsuch and Kavanaugh confirmations
as a Senate Republican staffer and now is president of the Article III Project,
a group pushing to confirm Trump’s judicial nominees.
SUPREME
COURT
How Amy Coney Barrett might rule
A rundown of the Supreme Court pick's record on 8
major issues suggests she could dramatically alter America's legal landscape
for years to come.
By JOSH
GERSTEIN
09/26/2020
07:12 PM EDT
https://www.politico.com/news/2020/09/26/how-amy-coney-barrett-might-rule-422055
Amy Coney
Barrett’s ascent to the Supreme Court is not yet assured — but it could have
earth-shaking consequences for American law.
Democrats
fear the 48-year-old Barrett will cement a conservative majority on the high
court for a generation, rolling back
abortion
rights, ending Obamacare and limiting the federal government’s power to fight
climate change.
For
President Donald Trump and his allies, her record over three years as a federal
appeals court judge and a decade as a half as a law professor calms their fears
that the current court doesn’t produce reliably conservative results — despite
the presence of five GOP appointees, including two justices nominated by Trump
himself.
Here’s
POLITICO’s look at Barrett’s views on a series of contentious legal issues the
court is expected to confront, starting within days after this fall’s
presidential election:
Abortion
Barrett’s
perceived hostility to Roe v. Wade has been the linchpin of media coverage of
her nomination and is expected to take center stage at Barrett’s confirmation
hearing next month. Indeed, while everyone on Trump’s shortlist is seen as
skeptical on abortion rights, Barrett’s relatively explicit public views on the
issue may well have given her the edge to receive the nomination.
A
conservative Catholic and mother of seven children, Barrett has called abortion
“always immoral,” although there are judges who have expressed similar personal
views while ruling to uphold abortion rights.
Two years
ago, in her position as a 7th Circuit judge, she voted with her colleagues who
unsuccessfully urged the full appeals court to reconsider a decision striking
down an Indiana law requiring burial of fetal remains.
But the
confidence among social conservatives that Barrett would be a reliable voice on
the court in favor of reining in abortion rights comes in large part from her
approach to stare decisis — the principle that justices ought to respect the
court’s past precedents regardless of whether they agree with them or consider
them legally sound.
The
approach brings a degree of predictability to American law, preventing fast
vacillation depending on the makeup of the court, but Barrett has made clear
she thinks the doctrine has been taken too far.
“If
anything, the public response to controversial cases like Roe reflects public
rejection of the proposition that stare decisis can declare a permanent victor
in a divisive constitutional struggle rather than desire that precedent remain
forever unchanging,” Barrett wrote in a 2013 law review article.
Many legal
experts doubt that a decision overturning Roe is likely anytime soon. Indeed,
it’s far from clear that either of Trump’s prior nominees—Justices Neil Gorsuch
and Brett Kavanaugh—would favor such a step.
During a
2013 forum, Barrett seemed aligned with the view that Roe will endure in some
form, as she declared that the landmark ruling’s “fundamental element, that the
woman has a right to choose abortion,” will likely remain. “The controversy
right now is about funding,” she added. “It’s a question of whether abortions
will be publicly or privately funded.”
In the same
forum, Barrett struck a pragmatic note: that policymakers should focus on
supporting poor women in an effort to reduce the number of abortions.
Even if the
court is unwilling to repudiate Roe, Barrett would likely accelerate the
justices’ incremental retreat on abortion rights by voting to allow the federal
government to cut off funding to groups like Planned Parenthood and by
permitting a slew of additional state regulations on abortion. Those rules can
dramatically limit availability of abortion by reducing the number of clinics
and providers and by imposing other requirements that deter women from seeking
abortions by increasing the cost and practical difficulty of receiving the procedure.
Pandemic
response
With the
coronavirus infections rising again in much of the country and fears high of a
new winter wave of the pandemic in the U.S., states seem likely to reimpose at
least some of the broad restrictions they placed on citizens, businesses and
religious groups earlier this year. That, in turn, could trigger a new round of
legal challenges reaching the high court.
“I think
we’re in entirely new territory,” said Lawrence Gostin, a global health law
professor at Georgetown University. “Covid-19 has proved to be so politically
charged that we see a flood of litigation,” he added.
The court’s
recent record in such cases indicates that Barrett could play a decisive role
in the outcome, although where she would come down is far from clear.
Many of the
lawsuits related to the pandemic are seeking emergency relief, meaning that
they are coming before the justices in a matter of months, as opposed to the
usual years-long timeline.
Although
the court often bats away those emergency requests without comment or noted
dissent, the justices divided 5-4 earlier this year as it turned aside
challenges from churches in California and Nevada complaining that they were
being unfairly targeted by lockdown orders.
In both
cases, Roberts sided with the court’s liberals to grant broad leeway to state
officials, while the rest of the court’s conservatives sharply dissented over
what they viewed at second-class treatment for religion and the religious. With
Ginsburg gone, the court could be divided 4-4 on such cases, making Barrett the
deciding vote.
“If a
justice was more inclined to read religious freedom more capaciously, that
might well have come out a different way,” said Wendy Parmet, a health law
professor at Northeastern University.
While
Barrett’s record and her personal beliefs make clear she is sympathetic to
religion, just how she would respond to lawsuits challenging stay-at-home
orders isn’t clear. She hasn’t ruled in a case brought by churches or other
religious groups, but she did cast a little-noticed vote in July in favor of a
decision turning down a challenge Illinois Republicans brought to virus-related
limits Democratic Gov. J.B. Pritzker placed on in-person political gatherings
It appears
the GOP would have come up short in the case regardless of how Barrett viewed
the issue, but her move to buck a Republican Party-backed suit related to the
virus is worth noting.
Obamacare
If Barrett
makes it to the high court before the election, she might barely have time to
catch her breath before hearing arguments in what is viewed as the biggest case
on the court’s docket for this term: a Trump administration-backed challenge
aimed at taking down the Affordable Care Act.
Barrett
hasn’t shied away from voicing how she feels about the law. She has critiqued
Roberts’ 2012 compromise that preserved a key part of the Obamacare, declaring
that the chief justice’s position pushed the language of the law “beyond its
plausible meaning to save the statute.”
In the same
article from 2017, she approvingly quotes the late Justice Antonin Scalia —
whom she clerked for, noting his suggestion that Obamacare should be “renamed
‘SCOTUScare’ in honor of the court’s willingness to ‘rewrite’ the statute in
order to keep it afloat.”
Barrett
also signed a protest against Obamacare’s birth-control mandate on the grounds
that it violated religious liberties. This summer, the justices greenlit a
Trump administration regulation granting employers wide exemption not to comply
with the law’s requirement for cost-free contraception for their workers. But
the bench didn’t resolve all the legal questions raised by the polarizing case,
and the policy is almost sure to come before the Supreme Court again.
Another
Obamacare-related case where her ideas on religious liberty will come into play
is the legal battle over enshrined guarantees that transgender people are
entitled to gender transition surgeries and hormones and women are entitled to
abortions — as is coverage through health plans and the provision of such care
by doctors and hospitals. Justice Samuel Alito has already framed the issue
starkly as a clash with religious freedoms.
An election
showdown
If the
November election turns out to be a squeaker, the Supreme Court might be asked
to determine the result, just as played out in the 2000 contest between George
W. Bush and Al Gore. How she and other justices would react to being pulled
into the political fray is uncertain, and justices often recoil at being
pigeonholed based on their political beliefs or those of the president who
appointed them.
Still, past
performance is some prediction of future results. And when that nightmare
scenario played out two decades ago, the court essentially split along
ideological lines, with the conservatives siding with the ruling effectively
declaring Bush the victor, while more liberal justices (two GOP appointees then
among them) backed Gore’s stance to allow ballot counting to continue.
Of course,
many other election-related issues regularly reach the court, including
redistricting and voter identification laws. Barrett is a conservative who
would be joining an already reliably conservative court on those issues and
she’s unlikely to reach the bench in time to rule on a flurry of emergency petitions
expected to arise in the coming weeks relating to changes various states have
made to voting procedures as a response to Covid-19.
Climate
change
Barrett’s
skeptical view of stare decisis could have an impact beyond abortion rights,
particularly in the area of the federal government’s power to use existing law
to confront climate change.
Conservatives
for years have sought to have a court revisit the limits of federal authority,
preferably to rule that the current laws only allow the Environmental
Protection Agency to take small regulatory steps rather than require the steep
curbs scientists say are necessary to stave off the worst effects of climate
change, including extreme weather and rapid sea level rise.
One
potential target in a Supreme Court unfettered by its own past precedents is
the 2007 ruling in Massachusetts v. EPA that found the Clean Air Act gave the
agency the authority to regulate greenhouse gases. Only one of the justices in
the majority in that 5-4 case, Stephen Breyer, remains on the court today,
while three of the four dissenters still hold their seats.
At least
two current justices have signaled interest in revisiting the climate ruling.
In 2011, a unanimous court led by Ginsburg reiterated the findings of the
Massachusetts ruling — but in a brief concurrence, Justices Samuel Alito and
Clarence Thomas said they only voted that way because no one in the second case
had challenged the underlying Massachusetts ruling, hinting at their interest
in revisiting it.
They
doubled down on their opposition in another side note to a 2014 ruling that
again largely upheld EPA’s greenhouse gas regulatory authority. The Clean Air
Act “was developed for use in regulating the emission of conventional
pollutants and is simply not suited for use with respect to greenhouse gases,”
they wrote.
Other
members of the court’s conservative wing might prove to be allies for
reconsidering the climate decision as well.
Roberts
dissented from the original Massachusetts ruling. And when he considered legal
challenges to the Obama administration’s Clean Power Plan in 2016 as a judge on
the D.C. Circuit, Kavanaugh argued that Congress should be the branch to make
sweeping climate policy, even while acknowledging the legislature failed to do
so in 2010 under heavy Democratic control.
With a more
conservative judge such as Barrett in Ginsburg’s seat, the court might choose
to weaken Massachusetts without overturning it, said Jody Freeman, director of
Harvard Law School's Environmental and Energy Law Program and a former Obama
White House adviser.
“The court
could more easily limit that landmark’s potential by reading EPA jurisdiction
or standard-setting authority in a cramped way,” Freeman wrote in an email.
That could include “interpreting provisions to require additional cost benefit
analysis, taking a limited approach to the ‘co-benefits’ that come with climate
rules, and otherwise making it harder for the agency to regulate greenhouse
gases and other pollution.”
Reining in
the administrative state
Barrett’s
penchant for originalism could also drive interest on the Supreme Court of
revisiting, limiting or even doing away with a controversial legal doctrine
that critics contend unconstitutionally empowers regulators and federal
bureaucrats — a concept known as Chevron deference.
Chevron
deference seems unlikely to prompt street protests anytime soon, but
demolishing the concept has become a cri de coeur for legal conservatives in
recent years. Named after the court’s 1984 ruling in a case called Chevron v.
Natural Resources Defense Council, the doctrine holds that when a statute about
an agency’s power is ambiguous, judges should defer to the agency’s reasonable
interpretation of the law.
Opponents
of the doctrine argue that it ceded the authority to interpret laws from the
judicial branch to the executive, including on key environmental regulations.
Justices Clarence Thomas and Neil Gorsuch have both criticized the doctrine, as
did Anthony Kennedy before retiring in 2018. Kavanaugh is also thought to be
open to limiting it as well.
If Joe
Biden wins the presidency, the issue could become a legal flashpoint as federal
agencies will likely seek to push the envelope on their regulatory power.
During her
time on the bench, Barrett has weighed in on just a few environmental cases.
None presented the sort of broad ideological questions that offer much insight
into potential Supreme Court decisions in this area.
For
example, in 2018, Barrett joined a panel that found that the Army Corps of
Engineers did not provide enough evidence for its decision that 13 acres of
wetlands in Illinois fell under federal jurisdiction and thus blocked from
development. The judges sent the issue back to the Corps to reconsider. Also
that year, Barrett wrote for a panel that found a company that burns old railroad
ties for electricity production is liable to pay a $100,000 fee for not
offloading ties from a rail shipment fast enough.
Sexual
violence/due process on campus
Barrett has
staked out a fairly clear position on one contentious issue that has spurred a growing
wave of litigation in lower courts: whether universities owe accused students
due process protections in disciplinary proceedings related to allegations of
rape or sexual assault.
In a ruling
last year, Barrett found that an accused male Purdue University student should
be allowed to proceed with his lawsuit alleging the school illegally
discriminated against him on the basis of his gender by subjecting him to a
process that effectively assumed his guilt. The judge noted that the university
failed to allow the male student to present witnesses, including a roommate of
his who disputed the alleged victim’s account, and that two of the three
members of the school’s panel deciding punishment in the case acknowledged not
reading an investigative report about the episode.
Barrett
said the unnamed male student had laid out a plausible claim of sex
discrimination under federal law requiring gender equity in education, Title
IX. She also said he might have a viable constitutional claim that the
state-run school denied him due process through procedures that violated his
right to mount a defense.
The
decision has been championed by lawyers for accused students, who are typically
men, and regarded with suspicion by some women’s rights advocates who fear it
will prompt universities to return to past practices that often gave short
shrift to women’s complaints about sexual assault and sexual harassment on
campus.
Criminal
justice/qualified immunity
Cases
involving criminal justice and police abuse tend to divide conservatives,
occasionally producing strange-bedfellow alliances with liberals to limit the
use of government power, rein in criminal statutes or allow recourse for
alleged victims of police violence.
Barrett’s
record in this area is murky, but an opinion she wrote last year gives some
civil libertarians that she would be a vote to pare back the legal doctrine of
qualified immunity, which is often used to toss out cases against police
officers and other government officials facing civil lawsuits for alleged
abuses.
Under the
theory, a suit over an incident where a person’s rights were violated can
nonetheless be dismissed if the actions were not “clearly established” as a
constitutional violation at the time of the event. Since no two episodes are
identical, the doctrine sometimes gives police and others the ability to escape
legal liability based on fine distinctions between the incident and prior
episodes ruled unconstitutional by the courts.
The opinion
Barrett issued last year rejected a qualified immunity claim by an Indianapolis
police detective accused of fabricating claims and presenting a skewed picture
of a murder suspect in an application for an arrest warrant. “The unlawfulness
of using deliberately falsified allegations to establish probable cause could
not be clearer,” she wrote, allowing the lawsuit to proceed.
If Barrett
proves more open to rulings for criminal defendants or those accusing police of
abusive tactics, that could produce a significant shift on the high court,
since a couple of the court’s conservatives—namely Alito and Thomas—almost
always side with the police or government in such cases, while Justice Neil
Gorsuch’s stance is less predictable. In addition, liberal justices like
Stephen Breyer and Elena Kagan are relatively moderate in this area, making it
difficult for those seeking to impose limits on the police.
If Barrett
emerges on the court as a conservative open to such arguments, she’d be
following in the footsteps of her mentor at the court, Justice Antonin Scalia,
who occasionally joined the court’s liberals in such rulings.
Susannah
Luthi, Alex Guillen and Renuka Rayasam contributed to this report.
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