by: Shriom Arza
Justice Amy Coney Barrett’s was one of the quickest United State Supreme Court appointments in American history. The appointment was also one of the most controversial. In the last year of former President Barack Obama’s presidency, a US Supreme Court position needed to be filled after the death of a justice. At the time, Senate Republicans claimed that being within 9 months of a presidential election it should be up to the American people to decide the next Supreme Court justice and refused to have a confirmation hearing for President Obama’s appointment. Democrats were upset at what they perceived to be open and obvious hypocrisy by the Republicans, because when Justice Ruth Bader Ginsburg passed away with less than 2 months until the presidential election, Senate Republicans vowed that they would make sure that President Trump’s nominee would have a confirmation hearing and be appointed prior to the election.
Now that Justice Barrett has been appointed, the US Supreme Court may have a 6-3 advantage for conservatives for the foreseeable future. Many are worried how she will rule on a number of important issues, particularly immigration, the Affordable Care Act and the second amendment, but especially issues involving religion and LGBTQIA+ issues. These critics are especially concerned about the latter because of Justice Barrett’s membership in an extremely conservative branch of the Catholic church that they feel is very anti-LGBTQIA+. Others are celebrating this appointment for the very same issues, and believe that she will be able to make judicial decisions without letting her religious beliefs play a part. To fully understand why that is, it is important to review how she has ruled on previous rulings.
As a judge with the 7th Circuit Court of Appeals, Justice Barrett helped to uphold a controversial Trump-era immigration policy. She sided with the Trump Administration in a case regarding Trump’s policy of imposing a wealth test, known as the Public Charge Policy, on millions of immigrants who are trying to come to the United States annually through family-based immigration. That being said, Justice Barrett hasn’t always sided with the Trump Administration in her brief time as an appellate judge. Prior to that ruling she wrote a decision in the 7th Circuit’s unanimous ruling, which rejected an earlier directive by former Attorney General Jeff Sessions. That ruling prevented the Trump Administration from ending a policy that allows immigration judges to indefinitely close deportation cases in which the immigrant does not appear to be a priority for deportation and allows them to live in America without the constant fear of deportation. Sessions’ policy was seen by many immigrant advocates as an attempt by the Trump Administration to speed up deportations by essentially not giving the judges a choice in ruling based on good faith legal arguments, and shutting down the common and perfectly legal practice of administratively closing immigration cases. . She wrote a very strongly worded verdict that shows she will not always confirm policies or laws simply because they were written by a conservative politician. In Cook County v. Wolf, the three-judge panel voted in favor of immigrants, but Justice Barrett wrote a scathing dissent. In it, Justice Barrett criticized justices and said the government should be allowed to deny people visas based on a set criteria.
She has stated that she is a “textualist,” which means she always goes by the exact wording of a policy or law, and does give room for any interpretation. She is frequently compared to Antonin Scalia who passed away in 2016 and was known to not interpret laws outside of what the law explicitly says. Some reject this type of judicial philosophy, and argue that it is unreasonable to use constitutional amendments, laws or court decisions written decades, if not centuries ago, to rule on issues that did not exist, were not even thought of or do not coincide with the evolution of society when those laws were written.
During her confirmation hearing, Justice Barrett did not give a clear opinion on many important issues, such as when Vice-President Elect Kamala Harris asked her if she believed climate change and global warming is a public health issue, stating that she declined to answer because the question was “politically controversial.” New Jersey Democratic US Senator Cory Booker asked if she believed whether “it’s wrong to separate children from their parents to deter immigrants from coming to the US” He was referring to Trump’s “no-tolerance policy” that separates children from their parents at the border. She responded with “[t]hat’s been a matter of policy debate and obviously that’s a matter of hot political debate in which I can’t express a view or be drawn into as a judge.” Booker pressed her on the question and her final response was, “I think you’re trying to engage me on the administration’s order separation policies and I can’t express a view on that.”
Given that Justice Barrett has a limited, albeit conservative, track record on immigration issues as a circuit court judge, some believe “it would mean that the Trump administration’s decisions would be upheld” by the US Supreme Court, such as Angela Banks, an immigration and citizenship scholar at Arizona State University’s Sandra Day O’Connor College of Law. Others think that “she’s not a rubber stamp for the Trump administration on immigration issues,” such as Andrew Arthur, a former immigration judge now the resident fellow in law and policy at the Center for Immigration Studies, a conservative think tank that supports many of the Trump administration’s policies restricting immigration.
Although Justice Amy Coney Barrett is already on the US Supreme Court, matters such as this are why elections and engaging in the democratic process are so important. If you feel strongly about Justice Barrett or her positions, the only way to make sure your voice is heard is by educating yourself on the politicians that may represent you and voting for those that you believe will support your beliefs and positions. If you are worried about how a US Supreme Court that will lean conservative for the foreseeable future may affect you or a loved one, it is never too early to find out what options are available to protect yourself, but it could be too late. To find out your options, feel free to contact the Law Office of Gian-Franco Melendez, LLC today.
