President Donald Trump on Saturday nominated to the Supreme Court Circuit Judge Amy Coney Barrett, who in past writings criticized a decision that upheld tenets of the Affordable Care Act.
Trump nominated Barrett to fill a vacancy created by the late Justice Ruth Bader Ginsburg in a move that could shift the ideological balance of the court for years. Barrett’s views on the ACA could be important if the Senate confirms her before the Supreme Court hears California v. Texas a week after Election Day. Senate Majority Leader Mitch McConnell (R-Ky.) said he wants to hold a vote on Barrett’s confirmation before the end of 2020.
Barrett, a judge on the U.S. Court of Appeals for the Seventh Circuit, in past writings criticized an opinion by Chief Justice John Roberts in National Federation of Independent Business v. Sebelius, in which the court decided that the ACA’s individual mandate was a tax and could be lawfully enacted by Congress.
“[Roberts] construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress’s commerce power,” Barrett wrote in a 2017 law review article.
Congress’ decision to zero out the individual mandate is the crux of the legal issue in California v. Texas.
An analysis by Georgetown University Law School Visiting Professor Evan Bernick published in the Yale Journal on Regulation found that Barrett as of 2018 had little written history on matters of administrative law or Chevron deference.
Barrett is Catholic, and clerked for the late conservative Justice Antonin Scalia. She was reportedly considered as a candidate to fill the most recent Supreme Court nomination, which ultimately went to now-Justice Brett Kavanaugh. Before Barrett was tapped for the Seventh Circuit, she taught at the University of Notre Dame.
Republican senators are already lining up for a swift confirmation of Barrett ahead of the Nov. 3 election, as they aim to lock in conservative gains in the federal judiciary before a potential transition of power. Trump, meanwhile, is hoping the nomination will serve to galvanize his supporters as he looks to fend off Democrat Joe Biden.
Barrett would be the sixth justice on the nine-member court to be appointed by a Republican president, and the third of Trump’s first term in office.