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A Victory for Textualists as Amy Coney Barrett is sworn in as the newest Associate Justice of the Supreme Court. The 48-year-old transitions from the 7th Circuit Court of Appeal to the highest echelon of the judicial branch. With her experience in academia and the Court, Barrett will be one of the most experienced Supreme Court Justices in recent history. This is quite an accomplishment, considering her age.
Aiding Barrett through this process was an incredible testimony before the Senate Judiciary Committee. Seeing blood after the damaging Brett Kavanaugh hearings of 2018, Senate Democrats thought they could hem in the judge. However, as her famous note holding up her notes– which were blank. Considering her litany of detailed explanations on judicial precedent and history, this alone was incredibly impressive. Even Dianne Feinstein said that she was impressed:
“Thank you!” she said. “That’s quite a definition. I’m really impressed. Thank you.”
This, of course, garnered the scorn of the online left. But what doesn’t nowadays? More on that later. The Justice-to-be is expected to be sworn in before the end of the current Supreme Court term. This means that Barrett will likely make key decisions on gun control and the future of ObamaCare. Furthermore, the new Justice will be available if there is a stark disagreement over next week’s election. It sounds like this will get very interesting very fast.
Perhaps what alarmed liberals the most was the docket of upcoming cases before the Supreme Court. Since Brett Kavanaugh made it to the Court in 2018, many cases have been decided on a 5-4 basis. Often Chief Justice John Roberts is the swing vote on the Court. Now, with a seeming 6-3 (or 5-3, if you count Justice Roberts as a swing vote) majority, the conservative side will likely be able to make easier decisions. In addition, this could prove vital in a number of cases coming up this term. The cases can be seen here.
Perhaps the most consequential so far is a case challenging the constitutionality of ObamaCare. The case comes from a challenge by the state of Texas. Texas AG Ken Paxton fronts the lawsuit. He argues that since Congress set the individual mandate penalty to zero, then the rest of the law is unconstitutional. A federal court in Texas and then the 5th Circuit Court of Appeals found this to be the case.
Now it is headed to the Supreme Court. Of course, we saw a similar case during the Obama years that was at least superficially similar. The issue was whether or not the individual mandate penalty was a tax. Chief Justice Roberts voted with the Court’s liberals to save ObamaCare by declaring it a tax rather than a demand to purchase health insurance. This didn’t sit well with many conservatives, especially originalists. This case has different legal underpinnings but has several things in common. This is where the new Justice Barrett may be the deciding vote.
Justice Barrett is an originalist, seeking the meaning of the law from the Constitution’s text. While this was derided by liberals that did not understand the context, this is key to understanding the law. Furthermore, Justice Barrett noted her close relationship with former Justice Antonin Scalia. She clerked with him decades prior. While she pointed out that they were not the same person, she is likely to be far closer to his judicial philosophy than the liberals– or even Chief Justice Roberts.
As we look at a variety of important cases coming before the Supreme Court, changing perhaps the most liberal member of the Court in Justice Ginsburg, with a textualist is an amazing switch. It also provides a bit of judicial balance rather than hopping between members to be a swing vote. It also means that President Trump is the first President since Richard Nixon to nominate and have the Senate accept three Justices to the Supreme Court. This alone is a major accomplishment. Furthermore, it opens up a variety of possibilities. Some of which could be disastrous.
Perhaps chronologically, the most likely event is that the Supreme Court decides on an electoral dispute between Donald Trump and Joe Biden. Considering this happened 20 years ago in Bush v. Gore, the chances of this happening again should not be discounted. Considering the tumult over the Coronavirus and mail-in ballots, the chances of a bizarre event happening are far higher than ever before.
Furthermore, the Supreme Court could soon become a political weapon for Democrats. If Joe Biden wins next week, he will likely move to pack the Supreme Court. When Franklin Roosevelt attempted this in the 1930s, he was rebuffered by his own party. Outside Joe Manchin of West Virginia, the odds of this happening is unlikely to the extreme. This would create a constitutional crisis of Democrats seizing power for their own ends. For all of the damage Democrats like to accuse Donald Trump of– this would be far more dangerous.
About the Author:
Michael Ehline is a leading personal injury and civil rights attorney based out of Los Angeles, California. He and his team work on a variety of case types, specializing in aiding victims of government abuse and injury. He writes these columns to better inform the public about legal issues and the day’s news items. To contact Ehline, reach out to him at (213) 596-9642.
Michael is a managing partner at the nationwide Ehline Law Firm, Personal Injury Attorneys, APLC. He’s an inactive Marine and became a lawyer in the California State Bar Law Office Study Program, later receiving his J.D. from UWLA School of Law. Michael has won some of the world’s largest motorcycle accident settlements.