Supreme Court nominee Amy Coney Barrett declined on Tuesday to answer questions about her views on the Affordable Care Act, abortion, same-sex marriage and a slew of other issues, saying repeatedly that she has made “no pre-commitments” about how she would decide any case if she were confirmed.

Rebuffing Democrats, she also would not say whether she would recuse herself if a case involving the 2020 election came to the court.

In a nearly 12-hour question-and-answer session with members of the Senate Judiciary Committee, Barrett followed the practice of other nominees in the last two decades and refused to comment on any pending Supreme Court case, assess the merits of any past Supreme Court decision, or entertain hypotheticals about any issue that could conceivably end up before the justices.

Instead, she extolled the principles of textualism and originalism, and she pledged to decide cases without regard to her own policy views – or the views of President Donald Trump, who nominated her on Sept. 26 to succeed Justice Ruth Bader Ginsburg.

“I made no promises to anyone. I have no agenda,” said Barrett, who has been a judge on the U.S. Court of Appeals for the 7th Circuit since 2017.

“There are 598 volumes of the United States Reports,” she continued, referring to the official volumes of published Supreme Court decisions. “That’s something that judges build on. Justices don’t go to the court to start having a book-burning.”

If asked to overrule an existing Supreme Court precedent, Barrett said in general terms, she would first consider the “reliance interests” of people who have benefitted from that precedent.

Rebuked by Democrats

The 12 Republicans on the Senate Judiciary Committee praised her credentials and said she would be a justice who would neutrally follow the original meaning of the Constitution. Her assurances, however, did little to satisfy the committee’s 10 Democrats.

As they did on Monday, the Democratic senators suggested that Barrett poses a threat to abortion rights, same-sex marriage and gun-safety laws. And they repeatedly portrayed her as a likely vote to strike down the Affordable Care Act in the newest constitutional challenge to the health law, California v. Texas, which the Supreme Court will hear on Nov. 10.

Democrats homed in on a line from a 2017 article in which Barrett criticized the majority opinion in NFIB v. Sebelius, the 2012 decision in which the court upheld the constitutionality of the law’s individual insurance mandate. Chief Justice John Roberts’ opinion, Barrett wrote, “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

Under extensive questioning about that sentence, Barrett said it did not mean that she was hostile to the ACA. And she said California v. Texas is “entirely different” from NFIB because the core legal issue in California, as Barrett described it, is “severability” – the question of whether one part of the law can be struck down while leaving the rest of the law standing.

Barrett later acknowledged, however, that an antecedent question in California – which the court would have to answer before reaching the severability question – is similar to NFIB because it involves whether the individual-mandate portion of the law remains constitutional now that Congress has eliminated the tax penalty for non-compliance with the mandate.

Election non-answers

Democrats failed to elicit answers from Barrett about anything related to the upcoming presidential election. In addition to declining to say whether she would recuse from any election-related litigation, Barrett declined to answer a question from Sen. Diane Feinstein (D-Calif.) about whether the Constitution or federal law gives the president the power to “unilaterally delay” an election. Answering such a question, Barrett said, would place her into the role of a “pundit.”

Sen. Cory Booker (D-N.J.) asked Barrett if she believed all presidents should make an “unequivocal commitment” to the peaceful transfer of power after elections. Barrett said she would avoid that question “to the extent that this is a political controversy right now.” Trump has refused to explicitly commit to a peaceful transfer of power if he loses his re-election bid.

Barrett later added that the nation’s long history of peaceful transfers of power is “one of the beauties of America.”

If Barrett is confirmed before Nov. 3, as Republicans plan, her confirmation would take place closer to a presidential election than any other Supreme Court nominee in history. Asked about the appropriateness of filling a vacancy so close to an election, Barrett said, “I think that is a question for the political branches.”

Glimpses of substance

Barrett did provide fragments of specific information about her approach to judging and her views on a few hot-button issues in American life.

She said that courts, when interpreting a statute, typically should not examine legislative history to ascertain what lawmakers believed the statute would do. And in response to questions from Sen. Kamala Harris (D-CA) about the “real-world consequences” of judicial decisions, Barrett said she always considers the consequences on people’s lives before ruling in a case.

She identified a handful of longstanding Supreme Court cases as “super precedents” – decisions so well established that virtually no one believes they could be overruled. Those super precedents, Barrett said, include Marbury v. Madison (which established the power of the Supreme Court to declare laws unconstitutional) and Brown v. Board of Education (which outlawed race-based segregation in schools). Three other legal principles that derive from case law also constitute super precedents, she continued: the power of the Supreme Court to review the judgments of state courts; the doctrine that the 14th Amendment applies only to government action, not private action; and the principle that states cannot infringe on the rights enshrined in the Bill of Rights.

Roe v. Wade, which held that the Constitution protects the right to obtain an abortion, does not fall into the category of “super precedents,” Barrett said.

A few senators asked Barrett about race in America. She also answered affirmatively when asked by Booker if she believes there is implicit racial bias in the criminal justice system. “It would be hard to imagine a criminal justice system as big as ours without having any implicit bias in it,” Barrett said.

And she told Sen. Dick Durbin (D-Ill.) that she has seen the video of the killing of George Floyd, the Black man whose death in May sparked nationwide protests against racism and police violence. Barrett said she discussed the video with her school-aged children, two of whom are Black, and that the issues raised by Floyd’s death are “very, very personal” to her family.

The Judiciary Committee is scheduled to reconvene at 9 a.m. Wednesday for another round of questions.

Posted in Featured, Nomination of Amy Coney Barrett to the Supreme Court

Recommended Citation: James Romoser, Barrett hearings, day two: “I have no agenda”, SCOTUSblog (Oct. 14, 2020, 1:35 AM), https://www.scotusblog.com/2020/10/barrett-hearings-day-two-i-have-no-agenda/