Judge Barrett’s writing criticizes the Supreme Court decision upholding Obama-era health law



Barrett has not participated in any cases during three years on the Chicago-based U.S. Court of Appeals for the 7th Circuit that dealt with the decade-old law, which has widened insurance coverage and altered many other aspects of the nation’s health-care system. Yet her academic writing and public action offer glimpses into her views: She has criticized the legal logic behind a Supreme Court decision that preserved the law and opposed a provision involving birth control.

Among the most revealing was an essay she wrote at the start of 2017, four months before Trump nominated her to the circuit bench. In the essay published by a journal of Notre Dame Law School, where she was a professor, Barrett argues that judges should respect the text of laws and contends that Chief Justice John G. Roberts Jr., who wrote the majority opinion the first time the Supreme Court upheld the health-care law, “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

Barrett represents a striking departure from the views of the justice she would succeed if confirmed by the Senate — Ruth Bader Ginsburg, who was the senior member of the court’s liberal wing before she died of cancer. Ginsburg voted twice to uphold the ACA’s constitutionality and was widely expected to hold that position in an upcoming case.

Barrett is a favorite of social conservatives, with a vivid history of opposition to abortion and an allegiance to a legal theory known as originalism — the idea that courts should stick to the meaning of the Constitution intended by the nation’s founders — an inheritance from the late Supreme Court Justice Antonin Scalia, for whom she clerked.

But it is the tidbits showing her dim view of the ACA that are animating those on the left. On and off Capitol Hill, they are planning to use the issue as a rallying cry in the weeks before the November elections, even if Senate Democrats lack enough votes to prevent Barrett from being confirmed.

“I think it is the issue of these confirmation hearings,” said Daniel L. Goldberg, legal director of the Alliance for Justice, a liberal group that monitors judicial nominations and has helped block several of Trump’s choices for lower courts.

The new nominee’s views on health care have particular relevance because the Supreme Court is scheduled to hear oral arguments a week after the Nov. 3 election in a case challenging the ACA’s constitutionality. The case marks the third time the court will consider the validity of the 2010 statute, which was a signature domestic policy achievement of President Barack Obama — and a target for Republicans ever since.

The law reaches into many aspects of Americans’ lives — from calorie listings on some restaurant menus to how much older people pay for medicines — but its best-known elements led to health coverage for more than 20 million people through new insurance marketplaces and an expansion of Medicaid, the public insurance for the poor, in all but a dozen states. The most popular part of the law protects consumers who have preexisting medical conditions from being frozen out of health plans or being charged more for them.

Goldberg noted that in June 2015 — 10 days after Trump announced his candidacy for the 2016 election — the future president tweeted: “If I win the presidency, my judicial appointments will do the right thing unlike [former Republican president George W.] Bush’s appointee John Roberts on ObamaCare.”

“I take Donald Trump at his word,” Goldberg said, “that [any] person he nominates will declare the Affordable Care Act unconstitutional and, in the middle of the pandemic, will take health care away from millions of people.”

Conservatives say they are not as certain. Ramesh Ponnuru, a fellow at the American Enterprise Institute who studies conservative thought, said Barrett’s legal positions and writings overall fall within mainstream conservative views, though he, too, said her essay is critical of Roberts, the chief justice.

In the essay, Barrett wrote that the court majority in the 2012 case, NFIB v. Sebelius, that upheld the law “expresses a commitment to judicial restraint by creatively interpreting ostensibly clear statutory text,” so that “its approach is at odds with the statutory textualism to which most originalists subscribe.”

And she praised a dissent by Scalia in a 2015 case in which the court majority again ruled the ACA constitutional. Barrett wrote that Scalia had said the law, often called Obamacare, “should be renamed ‘SCOTUScare’ in honor of the court’s willingness to ‘rewrite’ the statute in order to keep it afloat.” In the scathing dissent, Scalia also said the majority decision was “interpretive jiggery-pokery,” a “defense of the indefensible” and “pure applesauce.”

By the court’s custom, Barrett could participate in the latest ACA case if she were confirmed in time for the Nov. 10 oral arguments. The lawsuit, initiated by a coalition of Republican state attorneys general and supported by the Trump administration, argues that the law’s requirement that most Americans carry health insurance is no longer constitutional because of a 2017 change in tax law. It also argues that, if that section of the ACA is invalid, so is the rest.

Barrett has not participated as an appeals judge in any cases involving the legal concept — known as severability — that defines whether a law can stand if part of it is struck down, according to a search of her cases. Nor do her writings show any views on the question.

In addition to her essay, Barrett signed a petition in 2012 that protested an Obama administration rule carrying out part of the ACA that requires employers to include access to birth control for free as part of their health benefits. The petition contended the rule violated the religious liberty of employers that object to contraception.

The Obama administration later modified its rule. And the Trump administration rewrote it in 2018 to widen the ability of employers and universities to exclude birth control coverage on religious or moral grounds. The Supreme Court ruled in July that the Trump version is allowable.

Despite the fragments of evidence of Barrett’s ACA views, Ponnuru said it would be wrong to guess how she would vote on the pending ACA case — especially because legal experts across the ideological spectrum regard its arguments as weaker than the pair of earlier cases.

“We just can’t know,” Ponnuru said.

“We couldn’t know how Roberts was going to vote on the abortion case this summer, even with all his years on the Supreme Court,” he said, referring to an instance in which the chief justice joined the court’s liberals to strike down a restrictive Louisiana abortion law. “They have so much freedom of action.”



First Published at www.washingtonpost.com on 2020-09-28 20:30:00

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