Amy Coney Barrett 2, Liberals 0.
Her victory this time was a moral one, striking a blow at critics who asserted she was nothing more than a partisan political hack who would put her own political preferences ahead of the rule of law.
I’m talking, of course, about Barrett joining a 7-2 majority ruling that the states and individuals challenging the Affordable Care Act in California v. Texas didn’t have standing to sue over the individual mandate. This is especially noteworthy because, last October, Democrats made demagoguing the ACA their key line of attack against Barrett during her confirmation battle. There were numerous examples, one of the most blatant being Alexandria Ocasio-Cortez’s contention that: “Confirming Amy Coney Barrett will be the end of the Affordable Care Act.”
This was (and still is) bullshit. But AOC wasn’t alone. As The Beast noted at the time, “Democrats disregarded the immediate subject of the hearing to pull on America’s heartstrings, showing big, poster-size photos of adorable kids whose moms and dads would lose their health care if Judge Barrett becomes Justice Barrett.”
To be fair, Democrats probably couldn’t resist scaremongering this topic, due to the timing. The court was set to hear a case seeking to overturn the ACA less than a month later, and Barrett had previously questioned Chief Justice John Roberts’ assertion that the individual mandate constitutes a tax instead of a penalty. Their strategy was ostensibly also aimed at defeating Trump on Nov. 3, plus a couple of GOP senators; Barrett’s temperament and identity made her harder to demonize.
But even intellectually honest liberals conceded they could not divine Barrett’s future ruling on the ACA because, as I wrote at the time, “there’s also no reason to believe Barrett would agree with the forthcoming lawsuit.”
I’m not taking a victory lap for having special insight. Almost every smart conservative I read was in complete agreement—not only on the outcome, but also in explaining why Barrett would be unlikely to overturn the ACA.
At Bloomberg, Ramesh Ponnuru wrote that, “The lawsuit has to overcome several hurdles. One is the question of the standing to sue: Plaintiffs have to show that they’ve been injured, and if the tax is zero [which it currently is], who is the victim? Another is a technical question known as ‘severability’: Why should the whole law go because of a portion of it that Congress has already effectively repealed?”
Even before that (and before Barrett was nominated), Philip Klein, then of the Washington Examiner, wrote that “it’s hard to see why anybody in this case would have legal standing to sue, a threshold which typically requires showing injury.”
We know now that they were right, but that didn’t stop Democrats from pretending Barrett’s vote against the ACA was a fait accompli. While the attacks were not as personal, vicious, or effective as those on previous Republican nominees (such as Robert Bork, Clarence Thomas, and Brett Kavanaugh), the wholly fabricated assumption that she would overturn Obamacare in the middle of a pandemic (as they liked to add) speaks to how ugly our confirmation hearings have become.
Barrett now gets to have the last laugh and also redeem herself. The underlying contention was that she was a political hack and a religious nut—a pawn who would do Republicans’ bidding rather than a legal thinker with principles and a mind of her own. The assumption here was that originalism and textualism is all a scam.
But while it is true that two Republican nominees (Justices Samuel Alito and Neil Gorsuch) dissented, the fact that four conservative Justices, including ACB, voted to uphold the ACA suggests to me that they are still capable of prioritizing the appropriate role of the judicial branch (to interpret the law) ahead of their own personal political leanings (and legislating from the bench). These conservative Justices probably don’t like Obamacare, but they were willing to put that aside and follow the law.
In this case, that meant correctly (in my view) ruling that the plaintiffs did not have standing to sue. As Justice Thomas wrote, “...we must assess the current suit on its own terms. And, here, there is a fundamental problem with the arguments advanced by the plaintiffs in attacking the act—they have not identified any unlawful action that has injured them.”
For those who care about institutions and democracy and the rule of law, this should be a great comfort. I am reminded of all the Republican judges and local officials who did the right thing when Donald Trump tried to overthrow a free and fair election. However, progressives should not take this to mean that Barrett doesn’t pose a threat or that it’s smooth sailing from here on out. There’s no reason to believe that Barrett’s intellectual honesty and adherence to the proper role of a judge would prevent her from tackling issues that Democrats hold even more dear… such as Roe v. Wade.
Don’t be surprised if that’s exactly what happens next year.