How Amy Coney Barrett Could Change the Supreme Court

How Amy Coney Barrett Could Change the Supreme CourtSeptember 26, 2020

Tomorrow will mark the start of what could be one of the swiftest Supreme Court fights in modern history. On Saturday, just a week after the death of Justice Ruth Bader Ginsburg, President Trump is expected to announce his nominee for her replacement: Judge Amy Coney Barrett, who is currently serving on the 7th Circuit Court of Appeals.

The nomination battle over Barrett will be bitter.

If she is confirmed — and right now, Republicans have the votes — her presence on the court will give the conservative wing a solid 6-3 majority, allowing the other conservative justices to bypass Chief Justice John Roberts. Or, put another way, Roberts will no longer be the court’s median. (He has cast several pivotal votes with the liberal justices over the years, often out of apparent concern for the court’s institutional legitimacy.)

Barrett’s appointment marks an enormous shift in the Supreme Court’s center of gravity. According to one estimate of her ideological leanings, Barrett will be the third-most conservative justice on the court, just to the left of Justices Samuel Alito and Clarence Thomas, and to the right of Trump’s two previous nominees, Justices Neil Gorsuch and Brett Kavanaugh. That’s a best-case scenario for liberals, too. Several experts told me that based on Barrett’s previous rulings as a federal judge and writings as a law professor, she could end up to the right of Alito — or even Thomas.

But even in that third-place slot, Barrett replacing Ginsburg is one of the largest swings on the modern court since 1953:

Big swings in the court’s makeup are rare

Supreme Court justice replacements by the biggest changes in ideological rank, where 1 is most liberal and 9 is most conservative

the biggest shifts on the modern supreme Court
term Justice Rank Replacement rank change
1991 Marshall 1 Thomas 9 +8
1969 Warren 2 Burger 9 +7
2020 Ginsburg 2 Barrett 7 +5*
1969 Fortas 3 Blackmun 8 +5
1990 Brennan 2 Souter 5 +3
1962 Frankfurter 8 Goldberg 5 -3
1965 Goldberg 5 Fortas 2 -3

*Estimated change, based on JCS score
When there were more than nine justices in a term, we dropped the justice(s) who voted in the fewest cases (e.g., O’Connor in 2005, Douglas in 1975).

Source: Martin-Quinn scores

Of course, it’s difficult to predict how any given nominee will vote once she is on the court, and in the past, several of the court’s most liberal justices were appointed by Republican presidents.1 But over the past several decades, the conservative legal movement has worked to cultivate a stable of potential justices who are consistent ideological conservatives. Barrett is in many ways the poster child for that effort.

Trump has even said that he was “saving” Barrett for Ginsburg’s seat. That’s because Barrett is a favorite of conservative Christians in particular, and is widely seen as a justice who would be willing to significantly expand states’ ability to restrict abortion access, or even vote to overturn Roe v. Wade, the 1973 ruling that established a constitutional right to abortion. She also criticized Roberts’s 2012 vote to uphold the Affordable Care Act in a recent law review article, which is significant if she’s confirmed by early November, as the Supreme Court is hearing a challenge to the law a week after the election.

“Everything about her screams ‘reliable conservative,’” said John Kastellec, a politics professor at Princeton University who studies Supreme Court nominations. “If you wanted a person who seems like a very safe bet to strike down Roe v. Wade, she’d be it.”

So it’s hard to imagine that Barrett won’t turn out to be the steadfast conservative her boosters are hoping for — and that’s a point Democrats are likely to drive home during her confirmation hearings. This line of attack isn’t without risks for Democrats, though. When Barrett was nominated to the 7th Circuit in 2017, she was criticized for her conservative ideology, but that backfired somewhat on Democrats, in part because Sen. Dianne Feinstein suggested during the hearings that Barrett, a Catholic, would be guided by “dogma” in her judicial decision-making — a comment that many religious conservatives saw as an anti-Catholic dog whistle.

But this time around, Kastellec and other experts told me, Democrats are likely to steer clear of attacking Barrett on personal traits, and instead emphasize what a hard conservative swing on the court could mean for abortion, the Affordable Care Act, gun restrictions, and a host of other liberal precedents. Barrett is young, too. At 48, she could be on the court for decades to come.

That means the confirmation hearings, which are likely to start around October 12, will probably be extremely rancorous. But it’s doubtful that would stop the GOP from steaming ahead with a vote on Barrett’s nomination after only a few weeks of deliberation. An ambitious timeline like that seems very possible, since Senate Republicans currently have a solid majority willing to vote on Trump’s pick for the Supreme Court even before Barrett was named. And several Republicans, including Trump, have indicated that they want to make sure the vote happens before Election Day so that the new justice is seated in time to resolve any election-related disputes — potentially giving Trump’s new nominee enormous power over the result of the election.

The rush to confirm a new justice is something of a gamble, electorally speaking, however. It could galvanize some religious conservatives and other Republican stalwarts who care a lot about judicial nominations, but it could also turn off other voters, since recent polls have indicated that many Americans are not enthusiastic about the idea of confirming a new Supreme Court justice so close to the election. But having a solid 6-3 conservative majority on the court is a big enough win for Republicans that they may be willing to risk a lot to achieve it.

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