This article is part of a two-part series (2/2).
The addition of Amy Coney Barrett to the Supreme Court may disturb the balance of power surrounding the question of the Second Amendment. She is yet to be presented with a Second Amendment case since her confirmation, but her past experiences as an appeals court judge may shed some light on her perspective.
In Kanter v. Barr, then Seventh Circuit Judge Barrett had argued that the Second Amendment grants the right to bear arms for all citizens, but the legislature holds power to “strip certain groups of that right.” On this basis, she argued that “a state can disarm certain people, but if it refrains from doing so, their rights remain constitutionally protected.”
Barrett considered passing gun control legislation a right of the legislature. Still, one can also argue that the legislature is reluctant to practice that right precisely because of the lack of recognition of this right in the higher courts. It remains unclear if she was merely providing a new perspective to the specific case, or if she was intentionally trying to expand the extent of Second Amendment rights.
On the subject of abortion, the records of the justices are not less complicated than their perspectives on Second Amendment rights. Gorsuch was never presented with an abortion case when he was an appeals court judge and was evasive when asked about it in his confirmation hearing. Justice Kavanaugh said during his confirmation he believes Roe v. Wade was a vital precedent regarding abortion and that Casey v. Planned Parenthood was a second precedent that reaffirms the Roe v. Wade decision.
After the two Justices were confirmed to the Supreme Court in 2019, the Court was presented with June Medical Services v. Russo, which involved a Louisiana law that required stricter qualifications for the practitioner. Under the plurality opinion written by Justice Stephen Breyer and joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, the law was considered to be imposing an “undue burden” on a woman’s right to obtain an abortion. Roberts concurred, declaring the Louisiana law unconstitutional out of respect for the precedent Whole Woman’s Health v. Hellerstedt.
The dissenting opinion written by Alito, joined in full by Gorsuch and in part by Kavanaugh, rejected the idea that the Louisiana law in question was unconstitutional. It did so on the basis that the circumstance in question does not fit under the definition of the phrase “undue burden,” but not by questioning the legitimacy of Roe v. Wade.
Barrett’s position is more difficult to divine, firstly because she has not been presented with an abortion case since she entered the Supreme Court, and secondly because her record as an appeals court judge was mixed as well.
In one case regarding the re-hearing of two Indiana statutes — which prohibited abortion based on the sex, race or disabilities of a child and required aborted fetal remains be cremated or buried instead of placed in medical trash — Barrett joined the dissenting opinion that argued that whether the first statute was constitutional can only be answered by the Supreme Court, but the second one regarding the treatment of the aborted fetus deserves a rehearing.
In a separate case regarding a “buffer zone” outside abortion clinics that would prohibit anti-abortion counselors from approaching within eight feet of a person in the vicinity of an abortion clinic for counseling, Barrett ruled in favor of preserving the rule. So, although though Barrett is a conservative, her own legal views fall across a greater spectrum than a typical conservative agenda.
Based on this evidence, it would be unlikely that the Supreme Court justices nominated by Trump would completely follow through with such a conservative agenda in full, because to do so while disregarding existing norms and procedures would be to undermine one of the three fundamental institutions of this democracy. The most substantial and significant impact of this conservative turn of the Supreme Court would be the increased prevalence of textualism and originalism in interpreting laws and the Constitution, especially the next time it hears cases regarding abortion and the Second Amendment
There are some guesses that Democrats may consider expanding the judiciary to offset the Trump-era changes if they acquire a majority in the Senate. Still, as things stand now with the Georgia runoff, the Democratic Party will see an even split in the Senate in the best case scenario.
The fears that the Supreme Court could be used as a mere political tool are warranted, but they remain unlikely for now. The justices of the Supreme Court, including the three conservative justices appointed by President Trump, remain committed to an independent judiciary that does not meddle in partisan politics.