Sunday, September 27, 2020

Day 202 Nat'l Emergency: Scalia's Legacy Looms Large Over Barrett's Selection to Replace Ginsburg

 Of course the national right to an abortion is threatened if Amy Coney Barrett is confirmed as Ruth Bader Ginsburg’s successor on the Supreme Court. Any nominee put forward by Donald Trump would carry that same executioner’s ax liberal minded people fear, so let’s not tarnish Barrett with undue objections because she was the chosen one.

But as a disciple of Justice Antonin Scalia, Barrett will surely bring to the Court a fervor to revisit some of her mentor’s most provocative dissents. Coupled with the two other Trump appointments—Neil Gorsuch and Brett Kavanaugh—plus Samuel Alito and Clarence Thomas, she would make a solid five justice conservative majority even if Chief Justice John Roberts does not join a movement to overturn precedents.

Here’s some of what’s at stake beyond a woman’s right to control her own body’s reproductive process: 

the Affordable Care Act; 

the privacy rights of consenting adults; 

same sex marriage and possibly the right of adoption; 

the separation of religion from public institutions;

and the primacy of the presidency as being above the law.

Scalia cast dissenting votes in cases that could easily be reversed by the current Supreme Court composition if Barrett, or anyone nominated by Trump, is confirmed. 

The shredding of Obamacare with its mandate for insurers to cover pre-existing conditions would be first to tumble. Roberts saved it last time the Court considered its constitutionality, but Barrett would provide a decisive fifth vote to throw the Affordable Care Act into the ash bin of history. Her vote would strip some 135 million Americans of coverage protection for pre-existing conditions. Some 20 million would lose all their insurance. 

Oral arguments on the Affordable Care Act are scheduled for November 10.

In 2003, Scalia, along with Roberts and Thomas, dissented when the Court ruled against the anti-sodomy laws of Texas. In Lawrence v. Texas, a 6-3 Court majority said consenting adults, in this case homosexuals, enjoyed a right of privacy protected by the Constitution. But two of those six votes, Ginsburg and Anthony Kennedy, are no longer on the Court. It is easy to visualize a 5-4 or 6-3 vote to reverse that protection.

In 2015, by a 5-4 vote, the Court struck down state bans on same-sex marriage. Kennedy was the swing vote. A 5-4 or 6-3 reversal is easily visualized. With the loss of same-sex marriage, the ability for same-sex couples to adopt might also be in jeopardy.

The separation of church and state may tumble beyond repair. Scalia dissented in the 5-4 decision to prohibit prayer led by clergy at a high school graduation in the 1992 case Lee. v. Weisman. Barrett is deeply religious and  could be expected to resist any efforts to limit the introduction of religion onto secular government properties and functions.

Scalia was the lone dissenter in Morrison v. Olson back in 1988 that could have far-reaching impact for the future of our nation. In a dispute involving the constitutionality of the Independent Counsel Act, Scalia suggested in his dissent that a president is above the law. 

It is an argument that Trump has repeatedly put forward. 

Think about that.

Whether it’s Barrett or some other jurist, the Trumpian Party will place another conservative on the Court before or after the election and before January 20, 2021. They’ve got the numbers and sufficient time to execute their plan. 

The only remedy to such misfortune is electing Joe Biden as president with a Democratically controlled Senate and then adding four liberal justices. The court packing must be done immediately, before the 2022 elections that could deprive Democrats their Senate majority. 

Biden might be reluctant to move forward on such a program based on his decades-long collegial view of Senate norms. Those days, however, are long gone. Learn from Barack Obama’s mistake. Strike when you have the power, before you lose it. That’s what the Trumpians are doing.