Amy Coney Barrett. Credit: Courtesy of Xinhua Sipa via TNS

U.S. Senate hearings are scheduled to begin Monday for President Donald Trump’s Supreme Court nominee, Amy Coney Barrett, whose confirmation could dramatically shift the ideological balance of the nation’s highest court. 

Barrett, a judge in  the Seventh Circuit of the U.S. Courts of Appeals since 2017, was nominated for the Supreme Court by Trump after the death of Justice Ruth Bader Ginsburg Sept. 18. 

If confirmed, Barrett would be the fifth woman to serve on the Supreme Court. She would also be the only justice on the current court who did not attend law school at Harvard or Yale universities, instead earning her degree at Notre Dame. 

But Lawrence Baum, professor emeritus in the Department of Political Science whose research focuses on the Supreme Court, said Barrett’s alma mater may not separate her from the Ivy League-educated justices as expected.

“Since going to law school, she’s traveled in the same elite circles that other justices have,” Baum said. “If she might have had a different perspective when she was a law student, my guess would be that would no longer be the case because her career has been so similar in important ways to that of other justices.” 

A former law clerk for the late conservative Justice Antonin Scalia, Barrett has identified herself as a staunch proponent of “original public meaning” — an originalist philosophy that focuses on the meaning of the Constitution at the time it was written.

“The idea is that the Constitution should be implemented according to what the words it uses would have communicated to the informed reader of whatever year we’re talking about,” Peter Shane, the Davis Chair in Law at the Moritz College of Law, said.  

Barrett’s addition to the court would mean there would be three originalist justices — including Justices Clarence Thomas and Neil Gorsuch. Baum said it would also mean, with five reliably conservative justices, Chief Justice John Robert’s swing vote could lose its power.

“He was expected to be a fairly strong conservative, and he has been,” Baum said. “But what has happened on some major cases is that he’s taken positions that we’ve labeled as liberal, or any case he’s joined with the court’s liberals, and therefore the court has reached decisions that were unexpected.”

ABORTION 

Since the start of his 2016 campaign, Trump has promised to appoint anti-abortion judges. As a federal court judge, Barrett twice voted to reassess lower court decisions which blocked Indiana laws restricting access to abortion. 

Regarding Roe v. Wade, the 1972 landmark decision that solidified the constitutional right to abortion, Barrett said in a 2016 talk at Jacksonville University that she did not believe that Roe’s core would be overturned. Instead, she said she expected incremental restrictions on abortion. 

“Already, [the court’s] decisions have allowed greater restriction of abortion than had been true in earlier eras, and they could go considerably further in that direction,” Baum said. “The tough cases, of course, would be the ones where states have come very close to prohibiting abortion altogether. Those you can’t find a middle ground on.” 

AFFORDABLE CARE ACT 

In 2012, Roberts joined the court’s four liberals in National Federation of Independent Business v. Sebelius, establishing Congress’ right to enforce the individual mandate for purchasing minimum health insurance under its taxing powers. Barrett criticized this decision in a 2017 essay published in a Notre Dame Law School journal, arguing that the individual mandate was not a tax but a penalty and thus beyond Congress’ reach.

The monetary penalty that accompanied the Affordable Care Act’s individual mandate was later eliminated by Congress in 2017. 

The Supreme Court will hear Texas v. California one week after the presidential election to determine whether the individual mandate can be severed from the rest of the Affordable Care Act. In their dissent in NFIB v. Sebelius, Justices Scalia, Thomas, Anthony Kennedy and Samuel Alito said the individual mandate was not severable from the rest of the act and that the entire act should have been struck down. But Shane said the elimination of the monetary penalty could change some justices’ opinions.

“Even if the court remained 5-4, I don’t think the statute would be held to be non-severable,” Shane said. “I think no matter what was determined about the constitutionality of the mandate, the court would say the rest of the law could stand.” 

GUN CONTROL 

The Supreme Court has not heard a major firearms case since 2010, when it ruled in McDonald v. Chicago that the Second Amendment right for citizens to bear arms applied to state and local governments. The addition of Barrett could give the conservatives on the court considerably more leeway when deciding to hear firearm-related cases. 

While serving on the Court of Appeals, Barrett showed strong support for the Second Amendment. Last year, Barrett dissented in a decision which barred a man from owning a firearm due to his conviction of felony mail fraud. Barrett wrote that a Wisconsin law that prevented non-violent felons from owning firearms was unconstitutional and that the majority treated the Second Amendment as a “second-class right.” 

“The point that I think Judge Barrett was trying to make in her opinion was a broader one,” Baum said. ”The same point that Justice Thomas and Justice Alito keep making, which is that they think that the states and local governments are adopting gun regulations that clearly are inconsistent with their interpretation of the Second Amendment.” 

2020 ELECTION

Ahead of a presidential election in which both parties fear complications due to COVID-19, some Republican senators have expressed concerns about having an even number of justices on the court if Trump’s nominee is not confirmed. Two decades ago, the Supreme Court decided the presidential election in Bush v. Gore.  

“Before Bush v. Gore I would have said there’s virtually no room for the Supreme Court, and after Bush v. Gore I’m left almost equally puzzled because on one hand, we have the court having shown itself going to intervene, which was remarkable enough,” Shane said. “But the way the court wrote its opinion in Bush v. Gore, it all but said this is a ticket for one ride only.” 

Shane said that if a challenge to this year’s election reached the Supreme Court, it would likely deal with state conflicts on ballot counting or inconsistencies with counting methods.  

With the 2020 presidential election less than one month away, the Republican-controlled Senate is tasked with what would be one of the fastest confirmations of a Supreme Court justice in decades. Four Republican senators would have to break from party lines for Barrett to not be confirmed; at the time of publication, only Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK) have vowed not to  support a nominee before the election.