Power Up: Barrett’s legal views on abortion, the election and health care are now marginally clearer

Table of Contents

  • This about sums it up: “The safest and surest route to the prize,” Elena Kagan wrote in a law review article in 1995 of Supreme Court confirmation hearings, according to the New York Times’s Adam Liptak, “lay in alternating platitudinous statement and judicious silence.”

Invoking the Ginsburg rule, Barrett stated she would provide “no hints, no forecasts, no previews,” as the late Justice Ruth Bader Ginsburg said during her 1993 confirmation hearing. 

  • “Justice Ginsburg’s favored technique took the form of a pincer movement,” Kagan wrote in her 1995 article about Ginsburg’s performance, according to Liptak. “If a question was too specific, she would decline to answer on the ground that she did not want to forecast a vote. If it was too general, she would say a judge should not deal in abstractions or hypothetical questions.”

Like many Republicans, Barrett even employed the commonly used, “I can’t really speak to what the president has said on Twitter,” phrase to avoid answering questions about whether Trump would only appoint SCOTUS justices ready to strike down the Affordable Care Act, which comes before the high court on Nov. 10.

  • “Judges can’t just wake up one day and say, ‘I have an agenda, I like guns, I hate guns, I like abortion, I hate abortion,’ and walk in like a royal queen and impose their will on the world,” Barrett told the Senate Judiciary Committee.
  • “I am 100 percent committed to judicial independence from political pressure, so whatever people’s party platforms may be … the reason why judges have life tenure is to insulate them from those pressures … I am not pre-committed, nor would I pre-commit to decide a case in a particular way.”

Nonetheless, Barrett’s stances on such hot-button issues as guns, abortion rights and health care became clearer throughout 12 hours of testimony.

  • On same-sex marriage: Barrett declined to say whether she agreed with a ruling against it by her mentor, the late Justice Antonin Scalia.
  • On the election: She refused to recuse herself from cases involving disputes over the presidential election despite Democratic cries to do so. She also would not say whether she thinks voter intimidation is unconstitutional.

Abortion: Barrett, who is Catholic and personally opposed to abortion rights, insisted her personal opinions would not influence how she would rule on cases related to Roe v. Wade, the landmark 1973 case legalizing abortion in the United States.

But a major hint to how she might view the law came when she told senators that she didn’t view it as a “super-precedent” or a legal decision so entrenched it can’t be overturned.

Barrett declined to specify if she agreed with Scalia’s dissenting view that Roe was wrongly decided and insisted her own views do not “have anything to do with the way” she would decide cases. 

  • Her view on the issue is more conservative than that of some of possible peers:Barrett came into her nomination with a lengthy public record that underscores a personal opposition to abortion and skepticism about legal reasonings that upheld the Affordable Care Act,” our colleagues Seung Min Kim and Ann Marimow report. “Her predecessors, Justices Neil M. Gorsuch and Brett M. Kavanaugh, have co-authored a book titled ‘The Law of Judicial Precedent’ that says Roe has been called a ‘super precedent; because it has survived dozens of attempts to overturn it and it has been used to underpin Supreme Court decisions that protected gay rights and the right to die, according to a copy of the book.”
  • Paper trail: “In a 2013 law review article, [Barett] examined the role of the doctrine of stare decisis, which is Latin for ‘to stand by things decided’ and is shorthand for respect for precedent. The doctrine is, Judge Barrett wrote, ‘not a hard-and-fast rule in the court’s constitutional cases,’ and she added that its power is diminished when the case under review is unpopular,” the  Liptak reported earlier this week.
  • More: “Barrett was a member of Faculty for Life at the University of Notre Dame and signed her name to a newspaper advertisement in the South Bend Tribune that denounced the ‘barbaric legacy’ of Roe v. Wade. Of the 2006 ad, Barrett said Tuesday that ‘it simply said we support the right to life from conception to natural death” and that it was a perspective ‘consistent with the views of my church,’” per Seung Min and Ann. 

Democrats also pressed Barrett hard on health care. The court of appeals justice for the 7th circuit acknowledged past critiques of opinions upholding the ACA but rebuffed the assumption she’d be a reliable vote to eliminate the law. She said she’s had yet to weigh in on the specific issue to be argued next month on the ACA, which is whether the law can stand if “severed” from a requirement that every American have health insurance a mandate eliminated by Congress.

  • Liptak writes: “That is correct: The central question now is whether the entire law must fall because Congress in 2017 zeroed out the penalty for failing to obtain health insurance. Judge Barrett said she had expressed no view on that issue.”

Barrett added she’s “not here on a mission to destroy” the ACA and would not allow herself “to be used as a pawn to decide this election for the American people.”

  • But: One piece of writing that has gotten a close look is a 2017 essay that Barrett penned for a Notre Dame Law School journal in which she argued that Chief Justice John G. Roberts Jr., who wrote the majority opinion when the Supreme Court upheld the constitutionality of the health-care law in 2012, ‘pushed the Affordable Care Act beyond its plausible meaning to save the statute,’” per Seung Min and Ann. 
  • Barrett denied the premise her assertion was an attack: “For those to be fighting words, I think you would have to assume that my critique of the reasoning reflects a hostility to the act that would cause me to approach a case involving the ACA with hostility and looking for a way to take it down,” Barrett said during the hearing. “I can promise you that that is not my view.”

“You were added to the Supreme Court shortlist after you wrote that article and today my Republican colleagues who themselves have promised to repeal the ACA are rushing through your nomination so you can be seated in time to hear this case,” Sen. Chris Coons (D-Del.) said during his questioning of Barrett, referring to the 2017 essay she wrote for Notre Dame Law School. 

  • “ … Judge Barrett eventually defended herself to [Coons] … insisting that she had integrity ‘to apply the law as the law’ and was not trying to achieve any political end,” the New York Times’s Charlie Savage reports. “I never made any commitments or deals or anything like that,” she said.
  • In a notable exchange with Joe Biden’s vice presidential running mate, Sen. Kamala Harris (D-Calif.), Barrett denied recalling Trump’s tweets and statements pledging to strike down the ACA:

Some of Barrett’s most newsworthy dodging came in response to questions of presidential power — and whether she believed Trump has the power to delay an election and if she’d recuse herself from a potential 2020 election case. 

  • Michael McConnell, a former federal judge now teaching at Stanford University Law School, told our colleague Tom Hamburger that “it would be unprecedented for a justice to recuse because of a statement made by someone else — even if the statement was made by the president of the United States.”
  • However, legal experts argue Trump is in a league of his own since his statements have “put Barrett in a unique position,” according to Tom.
  • If Barrett does rule on a case involving the 2020 election, Charles Gardner Geyh, a judicial ethics expert at Indiana University’s school of law, told Tom “casting the deciding vote in the president’s favor in the most important case of the century could exact an extremely high toll on the Supreme Court’s legitimacy.”

There was one apology made during the hearing: After using the term “sexual preference” to refer to the sexual orientation of LGBTQ Americans, Barrett apologized for employing language that many find offensive.

  • “I certainly didn’t mean and would never mean to use a term that would cause any offense in the LGBTQ community,” Barrett said. “If I did, I greatly apologize for that.”
  • The apology came after she was asked if she agreed with the 2015 ruling in Obergefell v. Hodges saying same-sex marriage is a constitutionally protected right: “I have no agenda, and I do want to be clear that I have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference,” Barrett said in response. “Like racism, I think discrimination is abhorrent.”
  • Sen. Mazie Hirono (D-Hawaii) called out Barrett’s use of the term ‘sexual preferences,” per NPR’s Kelsey Snell: “That sexual orientation is both a normal expression of human sexuality and immutable was a key part of the majority’s opinion in Obergefell,” Hirono said. “Which, by the way, Scalia did not agree with. “

The investigations

UNMASKING PROBE ENDS WITHOUT CHARGES: The federal prosecutor appointed by Attorney General William P. Barr to review whether Obama-era officials improperly requested the identities of individuals whose names were redacted in intelligence documents has completed his work without finding any substantive wrongdoing …,” Matt Zapotosky and Shane Harris report.

  • Trump is likely to be disappointed by the results: “The department has so far declined to release the results of U.S. Attorney John Bash’s work, though people familiar with his findings say they would likely disappoint conservatives who have tried to paint the “unmasking” of names — a common practice in government to help understand classified documents — as a political conspiracy.” Bash left the DOJ last week.

Legal analysts said the investigation was another example of Trump’s Justice Department targeting his political opponents: Bash’s team was focused not just on unmasking, but also on whether Obama-era officials provided information to reporters …,” our colleagues write.

From the courts

IN OTHER SCOTUS NEWS, 2020 CENSUS TO END: “The Supreme Court allowed the Trump administration to end the 2020 Census count now, concluding a contentious legal battle over the once-­in-a-decade household count despite fears of an undercount that would fall hardest on minority groups,” Robert Barnes and Tara Bahrampour report.

  • Justice Sonia Sotomayor was the only justice to note dissent: “The court put on hold a lower-court order that said the count should continue until the end of the month, because of delays brought on by the pandemic. The court did not provide a reason, which is common in disposing of the kind of emergency application filed by the administration.”

This has vast implications: “The census count has vast implications for American life, affecting the distribution of federal aid and the size of each state’s congressional delegation. Under Trump, though, what has usually been a project for the nation’s bureaucrats took on a decidedly partisan tone,” our colleagues write.

  • Everything is now due Thursday night: “Hours after the ruling was released, the Census Bureau announced it will keep accepting responses online at My2020Census.gov through Oct. 15 until 11:59 p.m. Hawaii time. The bureau has also set Oct. 15 as the postmark deadline for paper forms, as well as the end date for collecting phone responses and door knocking at unresponsive households,” NPR’s Hansi Lo Wang reports.

The policies

SENATE TO VOTE ON NARROW RELIEF PLAN: “Senate Majority Leader Mitch McConnell announced that the Senate will take up a narrow economic relief bill when it comes back in session next week. Trump immediately undermined the move, writing on Twitter: ‘STIMULUS! Go big or go home!!!’” Jeff Stein and Erica Werner report.

  • House Speaker Nancy Pelosi (D-Calif.) has already rejected Treasury Secretary Steven Mnuchin’s $1.8 trillion offer: “Meanwhile McConnell will try again to pass a much more limited proposal, something he already attempted last month. Democrats blocked it at the time and may do so again with the new bill, which seems like it will be similar to the last one. The new bill will cost roughly $500 billion and will include provisions to extend enhanced unemployment insurance and the small business Paycheck Protection Program, as well as money for hospitals and schools, among other things.”

Pelosi fired back at CNN’s Wolf Blitzer when pressed on why she won’t take the deal: “I don’t know why you’re always an apologist and many of your colleagues are apologists for the Republican position,” Pelosi responded to Blitzer. Don’t let the perfect be the enemy of the good,” Blitzer chided her. “It is nowhere near perfect … we’re not even close to the good,” Pelosi retorted, Erica writes.

  • Really, the interview needs to be watched to appreciate how far things went off the rails: 

For now, Democrats are publicly behind the speaker’s positions:

But no deal has real consequences:

The campaign

EARLY VOTING BEGINS IN TEXAS: “Early voting in Texas began Tuesday with crowds of excited voters waiting in line for several hours in some places to cast their ballots, even as new legal developments sowed confusion and threatened to restrict options for voting ahead of Election Day,” Michelle Ye Hee Lee, Amy Gardner and Brittney Martin report.

  • More changes came while people voted: “A federal panel of judges overturned a lower-court ruling in Texas that had allowed counties across the state to offer multiple locations for voters to drop off their absentee ballots in person. And election officials contended with a new lawsuit from the Texas GOP seeking to block the Harris County clerk from allowing any registered voter to vote in person from their car or at the curb options that appeared popular Tuesday amid coronavirus concerns.”

A record number of people are expected to cast votes in the Lone Star State: “More than 109,000 people had voted in Harris County as of Tuesday evening, setting a new turnout record for a single day of early voting, according to the county clerk’s office,” our colleagues write.

One of the lines in the state:

Virginia lawsuit filed to extend voter registration deadline after website goes down: “An accidentally severed fiber-optic cable in Virginia effectively shut down most of the state’s online voter registration on its last day Tuesday, prompting voter advocates to file a lawsuit in federal court seeking an extension of the deadline that they argue thousands of voters missed because of the disruption,” Antonio Olivo reports.

  • A key development late last night: Attorney General Mark R. Herring (D) filed a brief supporting the plaintiffs’ complaint:

TRUMP VEERS OFF-SCRIPT IN PENNSYLVANIA: “In a more pointed effort to nudge Mr. Trump toward his script, the president’s campaign also shared excerpts with reporters of the speech they said he would deliver upon landing for his rally in Johnstown, Pa., about 70 miles east of Pittsburgh,” the New York Times’s  Jonathan Martin reports.

Shocker: Trump read some of his pre-written remarks, penned by staff, but then returned to his freewheeling approach:

  • He expressed shock that national and state polls show Biden in the lead: “He has no idea what he’s saying,” Trump said returning to his disparaging attacks on Biden’s health. “How the hell do you lose to a guy like this, is this possible? Oh, I’ll never come to Pennsylvania again.”
  • And he once again joked about kissing everyone in the crowd, just days after the White House doctor cleared him to resume public events after being infected with the novel coronavirus: “I’ll kiss every guy — man and woman. Look at that guy, how handsome he is. I’ll kiss him. Not with a lot of enjoyment, but that’s OK.”
  • Where the race in PA stands: “The president is trailing in the state by seven percentage points, according to a New York Times-Siena College poll taken this month, in large part because Mr. Biden is overwhelming him in the state’s metropolitan areas. This also appeared to register with Mr. Trump, and he used his remarks to directly address the constituency that is most imperiling his candidacy.”

In the media

The wife of Labor Secretary Eugene Scalia has tested positive for covid-19: “Trish Scalia and her husband were among hundreds of guests at the Sept. 26 Rose Garden ceremony where at least a dozen people later tested positive and has been dubbed a possible ‘super-spreader’ event. The Labor Department’s news release did not say if she had contracted the virus there,” Antonia Farzan reports. The secretary himself tested negative, but he will work from home as a precaution.

Proposal to hasten herd immunity to the coronavirus grabs White House attention: “Maverick scientists who call for allowing the coronavirus to spread freely at ‘natural’ rates among healthy young people while keeping most aspects of the economy up and running have found an audience inside the White House and at least one state capitol,” Joel Achenbach reports.

  • “A senior administration official told reporters in a background briefing call Monday that the proposed strategy — which has been denounced by other infectious-disease experts and has been called ‘fringe’ and ‘dangerous’ by National Institutes of Health Director Francis Collins — supports what has been Trump’s policy for months.”
  • Fire: “This is a fringe component of epidemiology. This is not mainstream science. It’s dangerous. It fits into the political views of certain parts of our confused political establishment,” Collins told Joel. “I’m sure it will be an idea that someone can wrap themselves in as a justification for skipping wearing masks or social distancing and just doing whatever they damn well please.”

Suspect in plot to kidnap Michigan governor discussed targeting Virginia Gov. Ralph Northam (D): “An FBI agent said that some of those charged in a plot to kidnap Michigan Gov. Gretchen Whitmer also discussed ‘taking’ Northam, who reacted to the news by accusing Trump of fueling extremism with reckless rhetoric,” Kayla Ruble, Laura Vozzella and Devlin Barrett report from Grand Rapids, Mich.

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