'Baptism by fire' for newly appointed Supreme Court Justice Barrett
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[October 27, 2020]
By Lawrence Hurley
WASHINGTON (Reuters) - Newly confirmed
conservative U.S. Supreme Court Justice Amy Coney Barrett faces a
barrage of politically fraught cases in her first days on the job, as
the court weighs election disputes and prepares to hear a challenge to
the Obamacare health law.
The Republican-controlled Senate on Monday pushed through the
confirmation over Democrats' objections to an appointment so close to
the Nov. 3 presidential election. President Donald Trump, who nominated
Barrett, has said he expects the court to ultimately decide the result
of the election between him and Democrat Joe Biden.
Barrett, 48, who will be formally sworn in by Chief Justice John Roberts
on Tuesday, joins the court with two election issues already awaiting
her from key battleground states North Carolina and Pennsylvania.
The court would be expected to act on both before Election Day, with
Barrett, previously an appeals court judge and legal scholar as part of
the court's new 6-3 conservative majority. No Supreme Court justice had
ever been confirmed so close to a presidential election.
"I cannot think of any other situation like this," said Rick Hasen, an
expert on election law at the University of California, Irvine School of
Law. "It really is a potential baptism by fire."
One week after the election, the court on Nov. 10 hears a case in which
Republicans including Trump are asking the court to strike down the 2010
Affordable Care Act, commonly known as Obamacare.
During Barrett's Senate confirmation hearing two weeks ago, Democrats
focused on both Obamacare and election cases in voicing opposition to
her confirmation and urged her to step aside from both. Barrett refused
to make such a commitment. Justices have the final say on whether they
step aside in a case.
At a White House ceremony on Monday night where conservative Supreme
Court Justice Clarence Thomas administered to her one of the two oaths
of office that justices must take, Barrett pledged her independence from
politics.
"This separation of duty from political preference is what makes the
judiciary distinct," she said.
The political pressures put Barrett in a difficult position and she may
tread carefully, said Jessica Levinson, a professor at Loyola Law School
in Los Angeles.
"She could be on the court for four decades. I don’t think she wants her
first big ruling to be raising a question about her independence,"
Levinson added.
VOTING DISPUTES, OBAMACARE
Trump has said he wanted Barrett to be confirmed before Election Day so
she could cast a decisive vote in any election-related dispute,
potentially in his favor.
The Supreme Court has only once decided the outcome of a U.S.
presidential election - the disputed 2000 contest ultimately awarded to
Republican George W. Bush over Democrat Al Gore.
The justices already have tackled multiple election-related emergency
requests this year, some related to rules changes prompted by the
coronavirus pandemic.
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President Donald Trump applauds U.S. Supreme Court Associate Justice
Amy Coney Barrett after she took her oath of office and was sworn in
to serve on the court on the South Lawn of the White House in
Washington, U.S., October 26, 2020. REUTERS/Jonathan Ernst/File
Photo
On Monday night, the conservative justices were in the majority as
the court on a 5-3 vote declined to extend mail-in voting deadlines
sought by Democrats in Wisconsin.
Last week, in a stark sign of how Barrett's appointment could affect
such cases, the court split 4-4 in a case from Pennsylvania, handing
a loss to Republicans hoping to curb the counting of mail-in ballots
received after Election Day.
Republicans on Friday asked the court to block the mail-in ballot
counting in Pennsylvania, knowing that Barrett was about to be
confirmed.
The conservative majority even before Barrett's appointment has
generally sided with state officials who oppose court-imposed
changes to election procedures to make it easier to vote during the
pandemic.
OBAMACARE CHALLENGE
The Obamacare case is the third major Republican-backed challenge to
the law, which has helped roughly 20 million Americans obtain
medical insurance. It also bars insurers from refusing to cover
people with pre-existing medical conditions.
Republican opponents have called the law an unwarranted intervention
by government in health insurance markets.
The Supreme Court previously upheld Obamacare 5-4 in a 2012 ruling.
It rejected another challenge by 6-3 in 2015.
Barrett in the past criticized those two rulings. Democrats opposing
her nomination emphasized that she might vote to strike down
Obamacare, although legal experts think the court is unlikely to do
so.
The court hears another major case on Nov. 4 concerning the scope of
religious-rights exemptions to certain federal laws. The dispute
arose from Philadelphia's decision to bar a local Roman Catholic
entity from participating in the city's foster-care program because
the organization prohibits same-sex couples from serving as foster
parents.
The court began its current term on Oct. 5 shorthanded following the
death of Barrett's predecessor, liberal Justice Ruth Bader Ginsburg.
If the court is divided 4-4 in any of the cases argued before
Barrett was appointed, it could hold a second round of oral
arguments so Barrett can participate.
(Reporting by Lawrence Hurley; Editing by Peter Cooney)
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