Eight days before the presidential election in the US, Donald Trump swore in Judge Barrett after a swift nomination process that secures another seat in favour of strong right views.
I couldn’t not publish an election day article in respect of the newly elected Supreme Court Judge, Amy Coney Barrett. There are various aspects relating to the legal process and candidate that in my view aren’t right much of the attention has been removed from this very contentious decision.
As lawyers, we talk about the separation of powers as a legal doctrine to safeguard decision making; independently and freely at government level. It’s the preservation of the legislature (for the US this is Congress), the executive (the President) and the judiciary (the Supreme Court).
The time and process by which Judge Barrett was elected seriously undermines the separation of powers. Essentially, a Judge appointed by Trump will hear the case in the event of an election dispute and make a ruling that will impact every US citizen. Where is the independence in the highest court of the judiciary? Why wouldn’t you select a like minded individual who you know is likely to favour your own position and views when the time comes to establish the law?
Unconvincingly too I should add. It was a very divided vote in the Senate with 52-48 in favour that tipped the scales. Apparently, this was the late Judge Ginsberg’s fear before she died and as such she requested that the selection was deferred until after the election. As mentioned in my earlier post, once a Judge is elected to the Supreme Court in the US it is a life position.
Some may argue though she ticks boxes; she’s female, a mother of seven no less, a sibling to 6 others and a devout Catholic. It’s great to see a working mother on the bench. When the media was raising Barrett’s profile there was so much narrative on her being a Mum it clouded the question on her credibility for the job.
The Affordable Care Act
Now with Judge Barrett on the bench, she will face in the immediate future, the critical case being California v Texas aka the Affordable Care Act (ACA), Obamacare.
The ACA which became law in 2010 aimed to provide affordable health insurance coverage for all Americans. There are many benefits to the ACA:
- More than 16 million Americans obtained health insurance coverage within the first five years of the ACA.
- While not completely free, health insurance is much more affordable and insurance companies must now spend at least 80 percent of insurance premiums on medical care and improvements.
- Before the ACA, insurance companies would often set upper value thresholds for care making it impossible for those requiring serious acute care to afford the treatment. The ACA removed the cap.
- Prescription drugs are more affordable.
In 2018, two individuals and 20 US States led by Texas sued to invalidate the ACA, a law strongly supported by the late Ruth Ginsberg. The case itself is too complex for this blog and it has been litigated several times but the key question is whether or not the Act is unconstitutional (in whole or in part) on the grounds that the government had no right to force people to purchase something they didn’t want. The challenge relates to imposing a tax on US citizens even though the penalty for not taking out the health insurance is now zero.
The arguments being heard in the Supreme Court next week are clearly an effort for the Republicans to dismantle the law and the big question is what are Judge Barrett’s view on the ACA? This is one of a variety of topics Judge Barrett has declined to give a clear answer on when questioned during the nomination process about her political views.
The Second Amendment
Globally we have all seen some of the devastating consequences of the US laws which permit citizens to ‘keep and bear Arms’ established by the Second Amendment of the Constitution. While she admits to her family owning a gun Amy Coney Barrett claims she would fairly hear any case in the Supreme Court relating to the Second Amendment. She also claims she can separate her professional opinion from her own personal views which seems to be one of the biggest concerns. That is a tall order for the best of us, we are all guilty at times of an unconscious bias or allowing the emotion to creep in to difficult or pressurised work environments. We are human.
Climate Change
The running theme throughout the nomination process with Amy Coney Barrett was that she dodged so many questions and gave such inadequate answers. So far, she is not convincing or compelling. She also has the science and environment community up in arms as she refused to give her views or agree that climate change even exists. Like she said, she’s not a scientist well nor are the majority of us, however it’s not difficult to see the evidence in support of climate change and global warming.
There are several aspects of the new Supreme Court Judge, the nomination process and the inability to persuade, compel and inspire that I find disappointing. Even with a Democratic win in the US Election, the Supreme Court is at threat of conservative ideology and distorted views that plainly are not proportionate of the US citizens.
Look out for the ACA hearing on 10 November, though the opinion is not likely to be handed down before Spring 2021. Another one to watch…
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