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Thu Oct 22, 2020, 12:16 PM

What Does Amy Coney Barrett Mean for the Supreme Court? by Linda Greenhouse

We know who her allies are, and we know how to read what she’s written or signed.

'We saw the future of the Supreme Court this week, and its name is Amy Coney Barrett. The court’s 4-4 deadlock Monday on whether Pennsylvania must count some late-arriving ballots said it all.

The four most conservative justices sided with the Republican Party, which has fought tooth and nail against permitting states to make accommodations to the Covid-19 pandemic and the Trump-induced collapse of the United States Postal Service by relaxing rules, including deadlines. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh voted to grant the party’s request for a stay of a Pennsylvania Supreme Court decision providing that ballots will be counted if postmarked by the night of Nov. 3 and received within the following three days.

Chief Justice John Roberts joined the Supreme Court’s three remaining liberal justices, Stephen Breyer, Sonia Sotomayor and Elena Kagan, in voting to let the decision stand. Justice Ruth Bader Ginsburg would undoubtedly have voted with them. With her or without her, the conservatives would still be one vote short of the five needed to grant a stay.

Can I be certain that soon-to-be Justice Barrett, President Trump’s choice to fill Justice Ginsburg’s seat, would have been that fifth vote? Can I assume that she would really have been so bold, so unabashed about carrying the Republican Party’s water within days of her arrival following the strong-arm tactics the party used to secure her confirmation?

No, of course I can’t. All I know for sure is who her friends are — and what she said and didn’t say during her two long days before the Senate Judiciary Committee last week. I don’t know whether the four justices who voted to block the Pennsylvania court’s decision have ever met Judge Barrett. But they seem to consider her their ally-in-waiting.

I say that because when the Supreme Court denies a stay without opinion, as it did on Monday, there is no requirement or general practice for indicating the actual vote or the identities of the justices who voted one way or another. When a tie vote makes the court unable to decide a case it has actually heard on the merits, a more consequential step than the mere denial of a stay, the court says nothing more than “the judgment is affirmed by an equally divided court.” We are left to guess who was on which side.

Yet here, the four justices who voted unsuccessfully for a stay chose to reveal themselves by noting that they “would grant the application.” Why did they do that? It’s not too cynical to suppose that they wanted to make it clear to the base how much they needed Judge Barrett to join them, now, before other cases like this one inevitably come along. Do Supreme Court justices have a base? These do. . .

Because the opinion was a dissent, one that she joined but didn’t write, and because the requested full-court rehearing never took place, the case, Planned Parenthood of Indiana and Kentucky v. Commissioner of the Indiana State Department of Health, has remained under the radar. It emerged only once during last week’s hearing, in a question by Senator Patrick Leahy, Democrat of Vermont. Judge Barrett deflected the question with an answer that struck me as close to disingenuous, and the senator, either pressed for time or not fully understanding the exchange, let the matter drop.

For that reason, and because I see this procedurally obscure case as providing the clearest indication of how Judge Barrett will approach abortion cases, it’s worth unpacking in some detail.'>>>


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