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Justice Barrett Rises to Top of Increasingly Conservative Justice System

– Nan Hunter, professor of law at Georgetown University


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The U.S. Senate confirmed Supreme Court Justice Amy Coney Barrett on Monday in a 52-48 vote, with all Republicans but one, Senator Susan Collins of Maine, voting in her favor – a move that is likely to remodeling the yard for years to come.

It was the first time in 151 years that justice had been upheld without the support of a single member of the minority party, a sign of a bitterly partisan divide over judicial appointments.

“She is one of the brightest jurists in our country, and she will deliver exceptional justice in our country’s highest court,” President Trump said on Monday during Judge Barrett’s unusual night swearing-in ceremony on the lawn of the White House.

Senate Democrats and civil rights groups condemned the confirmation, viewing the process a week before the presidential election as a hypocritical takeover by the Republican Party, which denied President Barack Obama the possibility of appointing a judge to the Court nine months before the elections. in 2016.

And they view Judge Barrett as a serious threat on a wide range of issues, noting that her track record, including her recent decision to overturn a verdict awarding damages in a sexual assault case, her dissent to decisions that overturned Abortion laws and its opposition to contraceptive coverage in the Affordable Care Act all reveal its conservative tendencies.

“A vote for Barrett is a vote to take health care away from millions of people; it’s a vote to step back on reproductive freedom, ”Massachusetts Democrat Senator Elizabeth Warren said over the weekend. “Endanger dreamers and immigrants. To let climate change take its toll. Endanger efforts to combat systemic racism. Endanger workers’ rights, the right to vote, LGBTQ rights and the prevention of gun violence. “

Judge Barrett’s confirmation also comes at a time when the legal system has become increasingly conservative and pro-religious, potentially cementing the right-wing tilt of the entire legal system for years to come.

From 1953 to 2005, the Supreme Court ruled in favor of religion (religious organizations or individuals) about 50% of the time, according to an analysis by Lee Epstein, professor of law at Washington University in St. Louis, and Eric Posner, professor of law at the University of Chicago. Beginning in 2005, under the leadership of Chief Justice John G. Roberts, the Supreme Court sided with religion almost 90% of the time.

Over time, the two professors found that there was also a change in the types of religious groups that appeared in court. From 1953 to 2005, these were either secular groups who argued against government accommodations for religion, or members of minority religious denominations, such as Jehovah’s Witnesses, who opposed policies that contradicted their beliefs. , explained Ms Epstein. Under Chief Justice Roberts, most of the plaintiffs were traditional Christian groups.

At the same time, Mr Trump has appointed more judges to federal courts of appeals – the last judgment for federal cases in the Supreme Court – than any other president in his first three years in office, all of whom have strong backgrounds. conservative references, according to a New York Times Analysis. Judges installed by Republicans over the past four years now make up about a third of the entire federal appeals bench, and those appointed by Mr. Trump have garnered twice as many ‘no’ votes in the Senate as those appointed by President George W. Bush and President Obama, revealed the analysis, highlighting the increasingly adversarial nature of the appointments.

It is this changing environment that makes Justice Barrett a real threat to Liberal decisions, legal experts have said.

“It is impossible to ignore the context and the frequency with which exemptions are granted to religious groups,” said Nan Hunter, a law professor at Georgetown University, specializing in constitutional law and gender law. “The problem is that another judge who brings a very strong conservative religious judicial philosophy will, at a minimum, encourage this litigation and very likely help change the law.

“And religion is really about everything,” Ms. Hunter added. Much of the erosion of Roe v. Wade, for example, comes from cutouts made for religious reasons, she said. The same goes for opposition to birth control coverage under the Affordable Care Act.

It is not clear how Justice Barrett would behave in her new role. She might, like most new appointees to the court, be “cautious the first year or two,” noted Ms. Epstein of the University of Washington, who also studies the behavior of federal judges.

“Kavanaugh was a great example: if you look at his voting record in the first year or two, he’s very close to Chief Justice Roberts,” Ms. Epstein said. “There wasn’t a lot of light between these two.

The main difference, however, is that when Judge Brett Kavanaugh was confirmed Chief Justice Roberts was the center of the Supreme Court, Ms Epstein said. Judge Barrett joins a court whose center has shifted to the right, leaving Chief Justice Roberts less inclined to side with the minority.

The dynamics of the new court will soon become clear. Shortly after polling day, the Supreme Court is scheduled to hear two back-to-back cases: a challenge to the Affordable Care Act and a gay rights case, Fulton v. City of Philadelphia, which will determine whether the government can rule out a Catholic agency that does not. working with same-sex couples in the foster care system. And if the results of the presidential election are challenged and the Supreme Court is called upon to rule, Justice Barrett has said she will not recuse herself from the case.

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