Amid a contentious election season, a Court of Appeals judge has been nominated to the Supreme Court in the wake of Associate Justice Ruth Bader Ginsburg’s death on Sept. 18. The decision of whether to nominate a new Justice in such close proximity to an election is split starkly across party lines. Amy Coney Barrett, President Donald Trump’s third and current nomination for the Court, has been undergoing hearings for her appointment this past week, and so far she has provided limited information regarding her stances on critical issues.
In a speech on Sept. 26, Trump officially nominated Barrett and discussed her accomplishments, of which there are many. She received a full academic scholarship from Notre Dame Law School, where she graduated first in her class. Afterward, she received a position as a clerk on the Supreme Court for Associate Justice Antonin Scalia. In addition, she is the mother of seven children, including, as Trump mentioned in his nomination speech, two adopted Haitian children and one son with Down Syndrome. Trump has said she has received support across party lines, and that “Amy Coney Barrett will decide cases based on the text of the Constitution as written.” As Barrett herself has said, “Being a judge takes courage. You are not there to decide cases as you may prefer. You are there to do your duty and to follow the law wherever it may take you.”
Nevertheless, her appointment has stirred up controversy. After the death of Antonin Scalia in 2016, President Barack Obama was barred from appointing a new Justice seven months before the Presidential election. Republicans stated that this appointment would be unfair to voters during an election year. Now, the view of Republicans has shifted. Senator Lindsey Graham, Republican of South Carolina and chairman of the Senate Judiciary Committee, has pushed forward the voting date for Barrett’s nomination to Oct. 22, which is only two weeks before the election. Democrats worry that Barrett, a devout Catholic with ties to anti-abortion groups and a past member of the Christian group “People of Praise,” will radically shift the balance of the Court. According to a poll by Washington Post-ABC News, “38 percent of Americans think Trump and the current Senate should confirm a new Supreme Court justice, while 57 percent say the decision should be left to the winner of the presidential election and the incoming Senate.” Currently, there are five Republican-appointed and three Democrat-appointed justices; Barrett would change that alignment to 6-3 by replacing progressive Justice Ginsburg.
Some of Democrats’ primary concerns with Barrett’s potential confirmation are rulings against abortion, government health care and insurance, election integrity and protection of the environment. During the hearings this week, there has been little to no clarification on Barrett’s stance on these issues. Her approach has been one of caution thus far, which is not without precedent (Justice Ginsburg herself advocated for this approach). Barrett responded, “I would need to hear arguments from the litigants and read briefs and consult with my law clerks and talk to my colleagues and go through the opinion-writing process.” She continued, “If I give off-the-cuff answers, then I would be basically a legal pundit, and I don’t think we want judges to be legal pundits. I think we want judges to approach cases thoughtfully and with an open mind.”
Based on the hearings, here is what we do know. Barrett expressed sympathy for George Floyd, as she recounted crying with one of her daughters over his death.. On climate change, she replied that it is a matter up for debate and one that remains contentious. This comment sparked backlash from activist Greta Thunberg, who responded, “To be fair, I don’t have any ‘views on climate change’ either. Just like I don’t have any ‘views’ on gravity, the fact that the earth is round, photosynthesis nor evolution.” In regard to health care, Barrett suggested that she will allow certain policies to remain, contradicting the wishes of Trump. Barrett refused to comment on cases such as Roe v. Wade (which legalized abortion), Obergefell v. Hodges (which recognized gay marriage) and Griswold v. Connecticut (which legalized contraceptives). Furthermore, according to the New York Times, Barrett refused to comment on whether separation of immigrant children was morally wrong and if Trump could delay the election. A concern created by this appointment is whether Trump will declare the election rigged if he loses and whether the Supreme Court would support this argument. However, it is worth noting that justices have not always voted according to party lines, and it is unclear whether this will hold true for Barrett.
In order to balance the Supreme Court, some Democrats have looked toward packing the Court, which entails appointing more than nine justices. Although there have been nine justices since 1869, this is not necessarily an unprecedented idea, as presidents throughout history have altered the number of justices: John Adams reduced the number of justices from six to five to prevent Thomas Jefferson from receiving a majority vote in the Court, and Abraham Lincoln temporarily expanded the court to 10 justices. The most famous attempt at court-packing is Franklin D. Roosevelt’s Judicial Procedures Reform Bill of 1937, which he proposed amid the Great Depression. The bill stated that the President could appoint up to six additional justices to the Supreme Court for every justice older than 70 years and six months who had served 10 years or more. Roosevelt suggested this after receiving numerous vetoes on his New Deal plans, hoping the bill would shift the balance of power to favor his policies. However, this received backlash from his own party, including his Vice President John Nance Garner. Today, Joe Biden and Kamala Harris have refrained from answering as to whether they will attempt a similar feat. In the past, Biden staunchly opposed packing the court, but he has refused to share his opinions in the wake of the appointment of Barrett. When asked about his position, he replied, “You will know my opinion on court-packing when the election is over…This election has begun. There’s never been a court appointment once the election has begun.” Harris stated, “We have to take this challenge head on, and everything is on the table to do that.” Senator Elizabeth Warren, Democrat of Massachusetts, has added that this is “not just about expansion, it’s about depoliticizing the Supreme Court.” It seems that voters will not gain clarity any time soon.