Judge Amy Coney Barrett said that she is “not hostile” to the Affordable Care Act, when pressed about how she would handle the case in November by Senate Minority Whip Dick Durbin.
“You’ve been unequivocal in being critical of the decisions both in Nfib v. Sebelius and King v. Burwell and we naturally draw the conclusion there’s going to be a third strike when it comes to Texas and California,” Durbin said.
Barrett responded that she is not hostile to the Affordable Care Act and that there was difference between her academic writings and judicial decision making.
“When I wrote, and this was as a law professor, about those decisions I did critique the statutory interpretations of the majority opinions, and as I mentioned before, my description of them was consistent with the way Chief Justice Roberts described the statutory question, but I think that your concern is that because I critiqued the statutory reasoning, that I’m hostile to the ACA. And that because I’m hostile to the ACA, that I would decide a case in a particular way. And I assure you, I am not. I’m not hostile to the ACA. I’m not hostile to any statute that you pass. And the cases which I commented … those were on entirely different issues. To assume that because I critiqued the interpretation of the mandate or the phrase established by a state, means that on the entirely different legal question of severability I would reach a particular result just assumes that I’m hostile and that’s not the case. I apply the law, I follow the law, you make the policy,” Barrett said.
Judge Amy Coney Barrett said the video of George Floyd, who was killed by Minneapolis police this summer, was personal for her family.
“I have two Black children. That was very, very personal for my family,” she said.
“My 17-year-old daughter Vivian, who’s adopted from Haiti, all of this was erupting, it was difficult for her,” Barrett said. “We wept together in my room.”
Barrett said Floyd’s death was also difficult for her 10-year-old daughter Juliet
“I had to try to explain some of this to them,” Barrett said of her children.
On the larger topic of racism, Barrett said that while she is willing to discuss the reaction her family had to the incidents of police brutality towards Black people in America, “giving broader statements or making broader diagnoses about the problem of racism is beyond what I’m capable of doing as a judge,” she said.
But “racism persists in our country,” she added.
Many Democrats on the Judiciary Committee have asked Supreme Court nominee Amy Coney Barrett about the Affordable Care Act today.
The Supreme Court is scheduled to hear arguments on Nov. 10 regarding whether the Affordable Care Act, commonly known as Obamacare, should be tossed out. That could be just weeks after the full Senate has confirmed a new Justice Barrett.
A group of Republican states led by Texas, and backed by the Trump administration, has asked the justices to invalidate the entire law, including provisions that expanded Medicaid to low-income adults, allowed children to remain on their parents’ policies until age 26 and guaranteed coverage for people with pre-existing health conditions such as diabetes and cancer.
Trump has opposed the law from its inception and derided the Supreme Court for upholding it. He had pressed Congress to throw out Obamacare to no avail. Now his administration is trying to do through litigation what it failed to accomplish legislatively. Trump’s third appointee to the nine-member high court could soon be in a pivotal role toward that effort.
Barrett would succeed Justice Ruth Bader Ginsburg, who died on Sept. 18 and who had consistently voted for the ACA. When the justices first rejected a challenge to the constitutionality of the 2012 law, liberal Ginsburg was part of the narrow 5-4 majority. So was conservative Chief Justice John Roberts. He cast the fifth vote, with four liberals, to uphold Obamacare, but only after construing a disputed provision requiring Americans to purchase health insurance to be valid under Congress’ taxing power.
Roberts’ ruling has drawn the scorn of conservatives ever since.
What Barrett has said about the issue: Barrett, then a University of Notre Dame law professor, wrote in a 2017 law review essay, “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power.”
She continued, “Had he treated the payment as the statute did — as a penalty — he would have had to invalidate the statute as lying beyond Congress’s commerce power.”
Senate Minority Leader Chuck Schumer on Sunday pointed to that essay in calling for Barrett to commit to recusing herself from the Supreme Court’s consideration of the law should she be confirmed to the bench, saying her “record on ACA is filled with evidence demonstrating the need for recusal.”
In an exchange with Democratic Sen. Patrick Leahy on recusal in case an election dispute went to the Supreme Court, Judge Amy Coney Barrett said:
“I commit to you to fully and faithfully applying the law of recusal. And part of the law is to consider any appearance questions. And I will apply the factors that other justices have before me in determining whether the circumstances require my recusal or not. But I can’t offer a legal conclusion right now about the outcome of the decision I would reach.”
Sen. Leahy claimed that President Trump expects the Supreme Court nominee “to side with him in an election dispute,” adding that it he is “thinking of the credibility of our federal courts” in that case.
To this, Barrett said, “I agree with your earlier statement that the courts should not be politicized.”
Several times during the confirmation hearing, senators have pushed Judge Amy Coney Barrett on a doctrine called “stare decisis” — it’s a legal term that refers to a court’s practice of following precedent. It translates into “stand by the thing decided.”
Why does it matter? It’s actually a critical doctrine that guides justices on when they should vote to overturn a previously decided case. It often comes up in confirmation hearings as senators push to see a particular nominee’s view on the doctrine. Justice Clarence Thomas, for example, has said he has little respect for it, while other justices believe it’s an important stabilizing factor for the court.
What Barrett has said about stare decisis: Democrats are likely to turn to Barrett’s own writing from 2013, when she was a professor at Notre Dame and she penned an essay centered on the doctrine. While she pointed to its strength, her critics focus on the fact that at one point she suggested room for some cases to be overturned.
“If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging,” she wrote at the time.
“Court watchers,” she added, “embrace the possibility of overruling, even if they may want it to be the exception rather than the rule.”
Judge Amy Coney Barrett said that President Trump did not ask her to commit to repealing the Affordable Care Act when he nominated her to the Supreme Court, adding that if he had, “that would have been a short conversation.”
Sen. Chuck Grassley asked Barrett if anyone had asked her about how she would decide on a particular case or issue.
“No one ever talked about any case with me, no one on the executive branch side of it,” Barrett answered.
Then, Grassley asked specifically about the President.
Here’s that exchange:
Grassley: The Democrats say you’re being put on the Supreme Court so you can vote to repeal the Affordable Care Act. Is that your goal? Have you committed to the President or anyone else that you would vote to repeal the Affordable Care Act if confirmed to the court?
Barrett: Absolutely not. I was never asked. And if I had have been, that would have been a short conversation.
Watch the moment:
Amy Coney Barrett gave a surprisingly candid response to a softball question from Senate Judiciary Chair Lindsey Graham: “How’s it feel to be nominated for the Supreme Court of the United States?”
Barrett said that she tried “a media blackout for the sake of my mental health,” but is “aware of a lot of caricatures that are floating around” of her, her husband Jesse and her family.
“I don’t think it’s any secret to any of you, or to the American people, that this is a really difficult — some might say excruciating — process,” she said. “Jesse and I had a very brief amount of time to make a decision with momentous consequences for our family. We knew that our lives would be combed over for any negative detail. We knew that our faith would be caricatured. We knew our family would be attacked. And so we had to decide whether those difficulties would be worth it because what sane person would go through that if there wasn’t a benefit on the other side?”
She said the “benefit” would be her commitment “to the rule of law and the role of the Supreme Court and dispensing equal justice for all.”
“I’m not the only person who could do this job, but I was asked and it would be difficult for anyone,” she added. “So why should I say someone else should do the difficulty if the difficulty is the only reason to say no? I should serve my country, and my family is all in on that because they share my belief and the rule of law.”
Under questioning by the senior senators of each side of the aisle — GOP Sen. Lindsey Graham and Democratic Sen. Dianne Feinstein — Judge Coney Barrett repeatedly declined to give her views of Roe v. Wade and Supreme Court precedent that preserved that 1973 landmark.
“I have no agenda to try to overrule Casey,” Barrett told Feinstein, referring to the 1992 court ruling that said states may not put an ‘undue burden’ on a woman’s constitutional right to end a pregnancy.
To questions from Sen. Feinstein, she said she did not want to comment on how she would rule: “I can’t express views on cases. I can’t pre-commit.”
Feinstein invoked Justice Antonin Scalia, who Barrett has said was her mentor, pointing out that he believed Roe was wrongly decided. She asked Barrett if she agreed with Scalia.
Barrett responded by invoking liberal Justice Elena Kagan, who declined to “grade precedent” during her hearing or give a “thumbs up or a thumb down” in any case, particularly one as controversial as Roe.
Watch the exchange with Sen. Graham on abortion here:
Sen. Dianne Feinstein asked Judge Barrett if President Trump has the authority to delay the general election.
Here’s what Barrett said:
“Senator, if that question ever came before me, I would need to hear arguments from the litigants and read briefs and consult with my law clerks and talk to my colleagues and go through the opinion writing process. So if I give off-the-cuff answers I would be basically a legal pundit, and I don’t think we want judges to be legal pundits. We want them to look at cases with an open mind.”
Some context: On July 30, Trump openly floated the idea of delaying the general election. He has no authority to delay an election, and the Constitution gives Congress the power to set the date for voting. Lawmakers from both parties said almost immediately there was no likelihood the election would be delayed and even some of Trump’s allies said his message reflected the desperate flailing of a badly losing candidate.