On September 18, 2020, the world lost Justice Ruth Bader Ginsburg, a pioneer in common law jurisprudence and judicial activism that saw her appointment to the US Court of Appeals in 1977 and ultimately her nomination to the SCOTUS in 1993 by President Bill Clinton. Justice Ginsburg’s health had been waning since the end of President Obama’s second term and throughout the Trump presidency, and upon her death her vacant seat has left the federal judiciary at an almost unfathomable impasse. Unlike the death of Justice Antonin Scalia in April of 2016, Justice Ginsburg died less than two months before the 2020 presidential election. This impasse reveals the double-standard between the political cancer in the United States, where a conservative justice’s seat was forced to be kept open, where a liberal lion’s seat was replaced at more than deliberate speed. Along with all of the structural and the political effects, there are profound economic effects of this nomination as well, in regards  to women’s health and financial records cases. 

On the note of the economic implications, there are two main categories that these concerns are coming from. The first monumental shift that this nomination is the change it can have on the Affordable Care Act. Justice Barrett is the heir apparent of Justice Scalia, who has shown in his jurisprudential writings that government intervention in the lives of Americans “infringes” and steps on the toes of state authority. This is his reasoning behind calling Roe v. Wade being called bad, yet settled law. Given this changing politic where the federal judiciary has become an enforcement arm of the United States Senate, a call to the judiciary to end abortion rights for women and reproductive health for women can come to fruition in this next legal season. Even more so, the very body that is advising and consenting to a “qualified” nominee is being propped up by an autocratic president who chooses to appoint judges that will effectively undo years upon years of civil rights reform and rights for minorities. The latest comments by President Trump about the protection of core ACA principles being upheld by the SCOTUS led him to refer to Chief Justice Roberts as a “liberal Obama judge”, which further showed that there is a major fraction. Whether the Senate, Congress, federal judiciary or presidency is the institution that is broken, we have yet to find out. 

The second is on the note of free enterprise. As a modern conservative justice being born out of the new strict-constructionist movement that Scalia, Bork and Thomas have created, Justice Barrett uses the Powell Memorandum as a framework for her legal decisions. This document, in the eyes of conservatives, aspires for a free-enterprise and regulation-free state, portraying nonbelievers as staunch New-Dealers and Communists that remove any sense of competition among businesses, effectively creating a government mandate. The tempting of Neil Gorsuch in the most recent Civil Rights case concerning transgender people does not reveal the fact that he is a liberal; but is ruling on any case solely from the standpoint that his successor would, as well as in the same way that Justice Barrett would. It is unclear if Justice Barrett will uphold her judicial principles almost like political principles for the sake of “party unity”, ultimately fearing the wrath of an incumbent ultra-conservative President, but this election has certainly paved the way for nonbinding political principles to make legal decisions. At any rate, a judge has no loyalty to the official that appointed them solely for political purposes, upholding a certain agenda - look at Justices David H. Souter and John Paul Stevens swinging to be the leaders of the liberal bloc of justices at the swearing-in of President Obama in 2009. 

The dynamic between liberal and strict interpretations of the Constitution in the Supreme Court will be the legal fight of our lifetime. It will be a dynamic between those that want to save and/or salvage civil rights decisions and protections for minorities that will last another century, or those that want to infringe on those rights just for the sake of a “perfectly free economy of trade.” Who knows; Justice Barrett could be a justice without a paper trail, swinging about the ideological spectrum case-by-case. 

Sources

Board, The Editorial. “The Republican Party's Supreme Court.” The New York Times, The New York Times, 27 Oct. 2020, www.nytimes.com/2020/10/26/opinion/amy-coney-barrett-supreme-court.html.

Jeffries, John Calvin. Justice Lewis F. Powell, Jr. Fordham University Press, 2001.

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