Tag: Amy Coney Barrett

Justice Amy Coney Barrett’s Potential Impact on the Supreme Court – President Biden’s Reaction

Justice Amy Coney Barrett was confirmed by the Senate to fill the Supreme Court seat left open by Justice Ruth Bader Ginsburg’s death by a vote of 52 to 48 on October 26, 2020.  Justice Barrett was sworn in on October 27.  Her confirmation was the first in 150 years to not include any votes from the party in the minority, in this case the Democrats, highlighting the polarized response to her candidacy as a Supreme Court Justice.

Justice Barrett served on the U.S. Court of Appeals for the Seventh Circuit after being confirmed in 2017. In addition to her position with the Seventh Circuit, Justice Barrett also served as a professor of law at her alma mater, Notre Dame Law School – a position she held since 2002 and up to her confirmation to the U.S. Court of Appeals for the Seventh Circuit.

The Supreme Court is already hearing oral arguments in key cases concerning healthcare and anti-discrimination laws and religious freedom, Justice Barrett’s background and previous rulings shed some light on how she could eventually rule on the Supreme Court.

How Justice Barrett’s Confirmation Could Impact the Politics of the Court

The confirmation of Justice Barrett to the Supreme Court tipped the political leanings of the Court further to the right, with Republican appointees outnumbering Democratic ones by a 6-to-3-margin.

Justice Barrett clerked for late Supreme Court Justice Antonin Scalia from 1998 to 1999. Like Justice Scalia, she aligns herself with the legal philosophy of originalism – the idea that the Constitution should be given the original meaning it would have had at the time it became law. During her confirmation hearings, she answered a question from Judiciary Committee Chairman Senator Lindsey Graham about her views on originalism, saying:

“I interpret the Constitution as a law, and that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it.”

Even though Justice Scalia was a mentor to Justice Barrett, she asserted in her confirmation hearings that with her confirmation Americans “would not be getting Justice Scalia, you would be getting Justice Barrett.” She also stressed that sometimes originalists don’t agree.

During her time as a Judge on the U.S. Circuit Court of Appeals for the Seventh Circuit, Justice Barrett voted conservatively over 80 percent of the time compared to other judges on the Seventh Circuit Court of Appeals, according to a study done by University of Virginia law professors Joshua Fischman and Kevin Cope cited by FiveThirtyEight that analyzed over 1,700 cases that were heard after her confirmation, including 378 that included rulings from Justice Barrett. Specifically, Justice Barrett voted conservatively 83.8 percent of the time in discrimination and labor cases, 87.9 percent conservative in criminal and habeas corpus cases and 83.2 percent conversative in civil rights cases.

However, Fischman told FiveThirtyEight that Justice Barrett is statistically indistinguishable from other conservative judges appointed by President Trump. Additionally, during her time as a judge on the Seventh Circuit, she didn’t always rule in line with other conservative judges, and ruled in a liberal direction 20 percent of the time when a Democratic nominee was on the panel, and 9 percent of the time when a fellow Republican nominee was on the panel,  according to the study.

“This is an attempt to establish a very strong Republican, conservative presence on the federal judiciary,” said Mark Graber, Maryland Carey Law professor and constitutional scholar on Justice Barrett’s confirmation in an interview with the National Law Review.

“That’s the great and terrible truth about this nomination: Judge Barrett holds far-right views well outside the American mainstream,” said Senate Minority Leader Chuck Schumer in response to Justice Barrett’s nomination. Specifically, Schumer highlighted Justice Barrett’s past criticism about previous rulings on the Affordable Care Act (ACA).

“We’re talking about the rights and freedoms of the American people. Their right to affordable health care. To make private medical decisions with their doctors …  Judge Amy Coney Barrett will decide whether all those rights will be sustained or curtailed for generations,” Schumer said.  “And based on her views on the issues—not her qualifications but her views on the issues—Judge Barrett puts every single one of those fundamental American rights at risk.”

While many on the left have expressed fears about a conservative majority on the Supreme Court, O. Carter Snead, a professor of law at the University of Notre Dame and one of Justice Barrett’s former colleagues for over 15 years, wrote that Democrats have “nothing to fear” from her in an op-ed published in the Washington Post.

“There is of course no way to know in advance how a Justice Barrett would rule on hot-button cases. What is clear is that she would carefully analyze each case on its merits, respectful of the stakes for both the rule of law and the stability of our polity, doing her level best to get the question right, regardless of her own personal views,” he said.

What Her Confirmation Could Mean for the ACA

When it comes to healthcare, Justice Barrett has been critical of past Supreme Court decisions on the ACA, writing in a 2017 article published by Notre Dame Law School that Chief Justice John Roberts’ opinions in previous ACA cases NFIB v. Sebelius and King v. Burwell “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

Additionally, Justice Barrett said in an interview with NPR that the dissent had the better legal argument in King v. Burwell. However, Justice Barrett maintained in her confirmation hearing that she was not determined to overturn the ACA.

“I’m not here on a mission to destroy the Affordable Care Act,” she said.

Specifically, Justice Barrett seemed to suggest in her confirmation hearing that the ACA could survive without the individual mandate because of severability, or that there is a presumption on the Court’s part under judicial tradition to save an underlying law if part of it is struck down.

“The presumption is always in favor of severability,” Justice Barrett said in her hearing.

Supreme Court Oral Arguments in California v. Texas

On November 10, the Supreme Court heard oral arguments in California v. Texas, a case considering if Congress’ 2017 decision to reduce the penalty for the ACA’s individual mandate renders the law unconstitutional. The Court also considered if the challengers to the law have the legal right to sue.

During the arguments, Justice Barrett didn’t indicate whether she thought the ACA should stand, but did express misgivings about whether the penalty could be reduced to zero and still be considered a tax.

“Why can’t we say that when Congress zeroed out the tax, it was no longer a tax because it generated no revenue and, therefore, it could no longer be justified as a taxing power?” she asked.

Justice Brett Kavanaugh and Chief Justice Roberts argued that Congress’ 2017 decision to reduce the penalty for not purchasing health insurance did not indicate the desire to throw out the law in its entirety.

“I think it’s hard for you to argue that Congress intended the entire act to fall. The same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Chief Justice Roberts said. “I think, frankly, that they wanted the court to do that. But that’s not our job.”

“It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place,” Justice Kavanaugh said.

A decision is expected on California v. Texas in 2021.

What Could Come Next

In the weeks following Justice Barrett’s confirmation to the Supreme Court, much of the political response to the confirmation has revolved around the possibility of adding more justices to the Supreme Court to remedy its shift rightward, and to dampen fears that the Court  could undermine the incoming Biden Administration by legislating from the bench.

“The Court might be a little more conservative or the Court might be a little more liberal, but it turns out, through most of American history, the court is about as close to public opinion to the other branches as anything else,” Professor Graber said. “What I think people are worried about is [that] it shouldn’t be the mission of the Roberts Court to, in some sense, undermine the fundamental initiatives of a Biden administration.”

While the Constitution allows Congress to add and take away judges from the Supreme Court, it has not done so since 1869. In 1937, President Franklin D. Roosevelt supported adding more justices to the Supreme Court, but that proved to be unsuccessful.

President Joe Biden responded to Justice Barrett’s confirmation by stating he would assemble a commission of bipartisan constitutional scholars to determine what the next steps would be moving forward.

In an interview with 60 Minutes, President Biden said that “there’s a number of other things that our constitutional scholars have debated and I’ve looked to see what recommendations that commission might make.”

President Biden said that after 180 days of the commission’s creation, he would expect recommendations from them on how to reform the court system.

When it comes to how Justice Barrett’s confirmation will affect the Supreme Court and the U.S. judicial system in the long term, only time will tell.

“Which type of judge is Barrett going to be? Is she going to be with Roberts? Or, is going to be with Thomas and Alito and say, ‘We control the court and we’re going to fight the Democrats tooth and nail?’ … We don’t really know yet,” Professor Graber said.

For more, visit the National Law Review Election Law / Legislative News section.

President Trump Nominates Amy Coney Barrett to U.S. Supreme Court

In the wake of Justice Ruth Bader Ginsburg’s death, President Donald Trump has nominated the Honorable Amy Coney Barrett, who sits on the federal U.S. Court of Appeals for the Seventh Circuit, to the U.S. Supreme Court. A conservative jurist and self-described “originalist” and “textualist,” Barrett previously clerked for the late-Justice Antonin Scalia of the U.S. Supreme Court.

Barrett was widely considered to be a leading candidate to succeed Justice Scalia in 2018, but the nomination ultimately went to Justice Brett Kavanaugh. Her name quickly resurfaced as a top contender for Trump’s third Supreme Court appointment.

President Trump announced the selection on September 26, 2020. The Republican-majority Senate is expected to move quickly to a confirmation vote. If confirmed by the Senate, Judge Barrett will be one of the youngest Justice to ever sit on the Supreme Court.

Barrett’s Career

A deeply religious conservative, Barrett attended St. Mary’s Dominican High School, an all-girls Catholic school in New Orleans, before receiving a B.A., magna cum laude, from Rhodes College in 1994 and her J.D., summa cum laude, from Notre Dame Law School in 1997. She went on to clerk for Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit from 1997 to 1998, and for the late-Justice Scalia of the U.S. Supreme Court from 1998 to 1999.

After her clerkships, Barrett worked briefly in private practice at Miller Cassidy Larroca & Lewin in Washington, D.C., from 1999 to 2001. She then taught successively at George Washington University Law School, Notre Dame Law School, and University of Virginia Law School.

President Trump nominated Barrett to the Seventh Circuit on May 8, 2017, and she was confirmed by the Senate on October 31, 2017. The 55-43 Senate vote fell largely along party lines with three Democrats voting to confirm Barrett and two not voting.

Barrett has been prolific in her short tenure at the Seventh Circuit, issuing nearly 100 written opinions. Her numerous employment law opinions provide a solid roadmap to how a Justice Barrett likely would address these matters on the high court. Combined, the decisions reflect a nuanced approach to workplace law, shaped less by dogma than by the text of the relevant employment law statutes.

Employment Law Decisions

Arbitration and Class Actions

Class action waivers contained in arbitration agreements governed by the Federal Arbitration Act (FAA) have been a focus of several Supreme Court decisions in recent years. The decisions affirmed by the high court have focused on the right of parties to enter into contracts that provide for individual arbitration of disputes.

A related question has been the subject of much litigation in the lower courts: Who can decide whether the parties, through their arbitration agreements, have consented to class or collective arbitration? Judge Barrett contributed to the growing body of case law on this question, which was a matter of first impression for the Seventh Circuit, by authoring the opinion in Herrington v. Waterstone Mortgage Corp., No. 17-3609 (Oct. 22, 2018), which held that a court, not an arbitrator, must decide.

In Herrington, the district court had invalidated a class waiver in the parties’ arbitration agreement and then ordered the employees to arbitrate. The arbitrator conducted a collective arbitration over the employer’s objections and issued a $10 million award to the employees. Writing for the appeals court, however, Judge Barrett stated the district court erred in striking the class waiver, noting that the Supreme Court had upheld the validity of such provisions in its landmark decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), and held the court must conduct the threshold inquiry of whether the arbitration agreement authorized class arbitration as this question involves a foundational question of arbitrability. In arriving at this opinion, Judge Barrett explained that this threshold question is of great importance as it could sacrifice the advantages of arbitration.

Judge Barrett’s opinion on a court’s ability to determine significant threshold questions of arbitrability may affect another key issue in arbitration that is winding its way through the federal courts: whether delivery drivers, including drivers in the expanding “gig” economy, fall under the narrow “transportation worker” exception or exemption in Section 1 of the FAA. If the exception is held to apply, drivers cannot be compelled to arbitrate disputes with their employer and would be entitled to pursue their class or collective claims in court. Judge Barrett’s opinion in Wallace v. Grubhub Holdings, Inc., Nos. 19-1564 & 19-2156 (Aug. 4, 2020), held that the transportation worker exception did not apply to drivers who make local food deliveries from restaurants to homes and thus they could be compelled to arbitrate their claims. To determine whether the exception applies, Judge Barrett explained that “transportation workers” are those who are “actually engaged in the movement of goods in interstate commerce,” which is determined by whether the interstate movement of goods is a central part of the drivers’ job description. While the Grubhub drivers argued they carried goods that had moved across state lines, Judge Barrett explained that this was insufficient to bring these drivers into the Section 1 exception, which must be “afforded a narrow construction.”

Both the First and Ninth Circuits have also ruled on the transportation worker exception in recent months; the First Circuit held the exception applied thereby foreclosing arbitration, while the Ninth Circuit found it inapplicable, allowing arbitration. Given the growing significance of the gig economy and the circuit split on a key issue arising under the FAA, the Supreme Court may soon take up the question, where Judge Barrett may apply her reasoning in Grubhub to any decision.

Employment Discrimination

Judge Barrett’s decisions in cases alleging discrimination reflect a restrained approach to statutory interpretation, a careful adherence to procedural rules, and a straightforward application of law to facts. The result has been a fairly balanced win rate for employers and employees. For example, her opinion in Smith v. Rosebud Farm, Inc., No. 17-2626 (Aug. 2, 2018), held that a reasonable jury could find a male employee was sexually harassed by male coworkers based on sex, given the “ample” evidence that only male employees, and not female employees, had been subjected to the harassing conduct.

In Vega v. Chicago Park District, Nos. 19-1926 & 19-1939 (Apr. 7, 2020) (one of Judge Barrett’s lengthier opinions, at 21 pages), the Seventh Circuit upheld a jury verdict in favor of a Hispanic park district employee on her Title VII claim for national origin discrimination. Judge Barrett rejected the park district’s contention that there was insufficient circumstantial evidence for the jury to find for the employee on her Title VII claim.” Judge Barrett wrote, “What matters is whether she presented enough evidence to allow the jury to find in her favor—and she did.” Judge Barrett wrote in similarly lenient terms about an employee’s burden to establish causation with respect to claims under Title VII of the Civil Rights Act. She explained that a plaintiff “has ‘plenty of room’ to convince the jury that a causal link exists,” and that the employee did so here. She emphasized, however, that the standard for proving a “widespread custom” of discrimination under Section 1983, is a good deal higher, and dismissed the Section 1983 claim as the employee did not meet this higher burden.

In Judge Barrett’s opinion in Purtue v. Wisconsin Department of Corrections, No. 19-2706 (June 26, 2020), the Seventh Circuit affirmed a district court ruling dismissing the discrimination claims by a corrections employee who was fired after she falsely claimed that a prisoner had struck her with an empty snack-cake box he had thrown from his cell. Again, Judge Barrett stressed that employees have numerous avenues to make their case. The familiar McDonnell Douglas burden-shifting approach is not the only way to establish a discrimination claim, she wrote, and an employee may have other available evidence to establish intentional discrimination. No such evidence existed in this case, Judge Barrett ultimately concluded, and no reasonable jury would find that the employee was subjected to gender discrimination.

Religion and LGBTQ Rights

When President Trump first floated Barrett’s name as a candidate to fill the seat vacated by Justice Scalia, her opponents feared that her conservative Catholicism would unduly shape her views on abortion and LGBTQ rights. In response, Republican leaders accused Democrats of applying a religious test to her nomination, which Article VI of the U.S. Constitution forbids. During her confirmation hearing before the Senate Judiciary Committee for her Seventh Circuit nomination, Barrett was questioned directly about how her personal religious convictions would affect her impartiality as a judge. Barrett confirmed her deeply held religious beliefs, but assured the Committee that she would separate her personal beliefs from her jurist role. Nonetheless, she quickly drew opposition from a broad coalition of LGBTQ rights organizations.

In its decision in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), the Supreme Court held that Title VII’s proscription against sex discrimination in employment was applicable to discrimination based on sexual orientation and transgender status. The landmark holding was heralded as a significant advancement for LGBTQ rights. Still, Bostock was a divided decision, and other cases (such as under Title IX of the Education Amendments Act, restroom and locker room usage, Affordable Care Act, and sex segregation) are likely to land before the Supreme Court to round out the jurisprudence in this area. In addition, Bostock left open the issue of religious exemptions, religious and religious-affiliated employers. Given Barrett’s deeply held Catholic beliefs and her commitment to a textualist interpretation of the law, her presence on the Court will be impactful in securing a conservative majority on these issues.

Judge Barrett is expected to favor a broad interpretation of the First Amendment’s religious freedom guarantees, to staunchly uphold protections from employment discrimination based on religion, and to safeguard the rights of religiously affiliated employers to hire and fire free from government interference. The Supreme Court has significantly expanded the scope of the ministerial exception in Our Lady of Guadalupe School v. Morrissey-Berru, 140 S.Ct. 2049 (2020). What remains to be seen is just how expansive this exception may be, such that it becomes the majority rule in cases involving religious affiliated employers. Will it continue to expand on the fourth factor in the Hosanna case — whether the employee’s job duties included “important religious functions” and not apply the remaining three factors with the emphasis on the job title of “minister”? To what extent could the exception be cited by some employers as a defense to discrimination claims brought by LGBTQ employees? Given Justice Barrett’s religious beliefs, she is expected to play a pivotal role in limiting the reach of Bostock and broadening the scope of religious-based protections.

Employee Benefits

The survival of the Affordable Care Act (ACA) is one of the largest issues teed up at the Supreme Court in the coming term. California v. Texas (No. 19-840), cons. with Texas v. California (No. 19-1019), the latest ACA challenge pending at the Court, is scheduled for oral argument on November 10. At issue is the ability of the ACA itself to survive after lower court rulings that the individual mandate portion of the ACA is unconstitutional following the elimination of any penalty associated with a failure of individuals to maintain minimum essential coverage. Judge Barrett has publicly criticized the ACA, as well as the high court’s 2012 decision upholding the law’s constitutionality. Were Barrett to be seated before November 10, she will likely participate in a highly divided decision that could invalidate much, if not all, of the ACA and lead to a complex reaction in the nation’s healthcare system, including significant impacts for employer-sponsored group health plans.

Confirmation Battle Looms

The latest political indicators, however, suggest that absent extraordinary circumstances, President Trump has the votes to confirm Judge Barrett swiftly.

Regardless of how Judge Barrett’s nomination fares, or whether President Trump will secure four more years to nominate judges, he will have left an indelible mark on the federal judiciary, including the nation’s highest court impacting every aspect of workplace law.

Jackson Lewis P.C. © 2020
For more articles on litigation, visit the National Law Review Litigation / Trial Practice section.