Amy Coney Barrett's Impact on the Supreme Court

of the Supreme Court for decades to come. Over the next hour, we'll look at the implications, discuss the politics around the pick, and examine Judge Barrett's record from her start as a clerk for Justice Antony Scalia to her time on the bench of the Seventh Circuit Court of Appeals. But first, let's start with some initial reaction from our Bloomberg News and Bloomberg Law Supreme Court reporters Greg Store and Kimberly Strawbage Robinson. So, Greg, I'll start with you.

This hardly came is a surprise. People basically were predicting it. No. Yeah, this is a name that we were all talking about for days. It's a name McDonald Trump told us. He was very seriously considering, and it's somebody who he interviewed before he selected Brett Kavanaugh for the last opening. Yeah. And at the same time, Kimberly, it's important these days to know something about your nominee and how they're likely

to rule. This nominee is an academic. She's written a fair amount, she said, sort of how she approaches judging, and so they kind of know her approach, don't they. They do. When she was a law professor at Notre Dame, she was there for a number of years, she really focused on originalism and statutory construction and really in the mold of her former boss, Justice Scalia, and on the Seventh Circuit. While she hasn't been there that long, just since October, that has been her record on the court,

following those judicial ideologies. Yeah, when you hear things like originalism, which certainly is something that Justice Scalia espoused, you automatically almost think about role against Wade an abortion, don't you, Greg, because that's something that the Conservatives was saying for some time. I don't see the right to have an abortion in

the constitution. Yeah, you certainly do. It really hard to square Roe v. Wade with the way that conservatives apply originalism, and so yes, that that is almost an implicit criticism of the way that decision was made in an amy Comy Barrett's case. We also have some things she has said about abortion in law review articles where she's made clear she has a personal objection to abortion and sees

it as being immoral. So you can bind those two things, and certainly one would expect she's gonna be very skeptical of Roe v. Wade comes before the court. Well and Kimberly, that takes us almost automatically at the confirmation hearing when she was nominated to go on the Court of Appeals where you had that now famous exchange with Diane Finstein, the senator from California, who pointed to a religion and then actually took a fair amount of criticism raising religion

as an issue. Well, that's right, and Senator Finstein was really asking about one of those many articles that Greig mentioned at any Coney Barrett wrote when she was an academic, which argued that Catholic judges should recuse themselves from death penalty cases, which of course has implications for the abortion She said that wouldn't be what she does when she's

sitting on federal Court. But it did bring up this controversy where Diane Feinstein said that the dogma lived loudly within any Coney Barrett and it really made her sort of a hero for religious conservatives. It will be interesting to see if this comes up, how it comes up in confirmation hearings, Gregg, and those will be apparently happening fairly soon if the President of the United States has his way. At the same time, if you look at

her record, it is a pretty stellar record. Number one of the class of Notre Dame law school executor, the law review clerks in the Supreme Court, and before that for a prestigious court appeals judge. It's pretty hard to say she's not qualified for the job. Yeah, this isn't going to be a fight over qualifications or credentials. There's no question she has those, and one will expect that she will present herself very well in terms of her knowledge of the law, on her ability to do the job.

You'll really be about the ideology and perhaps any Hayden motivations Democrats think she has, and what she would do to the Supreme Court. At this time when we're about to have a presidential election. Kimberly strikes me there's something a little bit artificial when we have a nomination to

the Supreme Court, we focus on one individual. They are one of nine, and we don't want to underestimate the collegiality or lack of collegiality, because some justices of outside influence because they get along well with others and con persuade others. Others are somewhat of loaners. Do we know anything about her style on the Seventh Circuit? I think we can look at her combromation hearing for the Seventh Circuit to see the kind of support that she got

from the people that she worked with. All of the law professors at Notre Dame and backed her nomination to the court. And she was hugely popular among her students as well. So she does seem like somebody who would fit into that collegiality at the Supreme Court. But it's famously Ben said that a new justice always changes the court, and of course that's going to be true in her case as well. Gregg, we are in Bloomberg, so we should talk about what we think this might mean or

not mean for the economy and for business. What would business expect of a Justice Barrett. Well, first of all, business would tear a lot about our views on the Affordable Care Act. The Court's going to hear arguments a week after the election. Depending on how that falls out, she may or may not participate in that case. She was critical of Chief Justice Roberts's reasoning back when he cast the kebo to uphold the law in not exactly

the same issue before the Court now, but related. And then you know she haven't because she's not on the d C Circuit, which handles so much of the regulatory issues. She hasn't had as much regulatory work as say Brett Kavanaugh did when he joined the Supreme Court, but one would imagine that her instincts would be with people like Neil Gorsag and Brett Kavanaugh to be skeptical of agency

and authority. That could mean scaling back some regulations. You talk about Justice Kavanaugh and scale regulation, and Kimberly, it brings you back to some challenges to the delegation. Doctor Frankly, we saw a little bit of a hint of it, perhaps in the CFPP decision last term, where they said, basically the president should have the right to fire when

it's just one person of heads an agency. Does this tell us anything about the likelihood that the Supreme Court may say, you know, what agencies should be more subject to the president? We really don't know. She doesn't have a very strong record on that, just given where she

sits in the federal bench. But the Supreme Court is considering a similar case uh this term where the timing looks right for a Trumps dominated be seated on the court so we could get our first indications whenever they hear or an argument how she thinks about this issue. Many thanks now to Bloomberg News Supreme Court reporter Gregg Store and Bloomberg Law Supreme Court reporter Kimberly Strawbridge Robinson for more on the judge and the possible influence she

could have on the High Court. Welcome Leah Lippmann, Professor of Constitutional law at the University of Michigan. So, professor, thank you so much for joining us. Let's start out first with maybe a disclaimer. I mean, you have served on the Court as a clerk for Justice Kennedy. Maybe we should be a little cautious about how much we and predict about someone when they come up with spru Justice because often they're not what we thought they would be.

I think that that's right, although I do think that the parties, and in particular at the Republican Party, have gotten a little bit better at selecting sustics whose votes that can be more confident. In ye, fair Enough did put a lot of work into that. Actually she did clerk for Justice Scalia. Uh, and obviously he was an originalist. Really believe you got to go back to the original language.

She also has I understand, as an academic for some fifteen years at Notre Dame in law school, wrote on the subject, and she embraces that doctrine explain how that could affect how she rules at the Supreme Court. So, under the doctrine of originalism, you're supposed to interpret the Constitution as it was originally understood when it was ratified.

Um So, using that methodology, Professor Barrett or when she was Professor Barrett, authored law review articles explaining that under an originalist theory of the Constitution, decisions like Brown for support of education, which helps us segregation and public education as un constitutional might be wrong, we decide. She also suggested that social security as we know it is unconstitutional, and that the admission of the state of West Virginia

was illegal as well. However, her scholarship was grappling with this question about what do you do when originalism points in one direction and the Supreme Court cases point in another. And she did not purport to say what a judge should do under those circumstances, and said she was writing about how conscientious legislators should behave when they think that the original meaning of a constitution point in one direction

and Supreme Court precedent in another. So we don't really know how she will be in cases where the original public meaning and her assessment of the Constitution points in one direction and the Supreme Court cases point in another. The President's nominees to date have really taken two approaches to that question. You have Justice Courss on the one hand, he largely thinks that when the Supreme Court got it wrong, you should just abandon a case, even if the Supreme

Court has resolved it the other way. Justice Kavanaugh, for his part, has not gone as far as Justice Corsich as far as abandoning the Supreme Court's prior cases. So this is a terribly important point. So we call it started decisive right, which is basically, we should follow President. We don't turn on a dime in the Supreme Court, and particularly perhaps when it comes to the Constitution. We saw Chief Justice roberts Just's last term embraced that in

the abortion case. Do we have a sense of how that might cut on the abortion issue. A lot of people talk about Amy Corny Barrett in connection with abortion. So we don't have any great indication based on Judge Barrett or Professor Barrett's writings, either as a scholar or as a judge. But I would say the most important indication that we have is the fact that the President promised to appoint nominees who would overturn Roe versus Wade.

The fact that Senator Josh Holley of Missouri that he would only vote for nominees who would overturn Roe versus Wade. And the fact that Senator Holly has indicated that Judge Barrett passes his tests, and the fact that the President nominated her suggest they believe and they have been told by people who know her, that she would vote to

overturn Row. Another great indication about how she might vote in those cases is the fact that both of the president's nominees just last term in Louisiana abortion, a case that you mentioned, voted to overturn the court's most recent

abortion case, Whole Woman's Health versus. Teller said that was the decision, of course, that invalidated the admitting privileges requirement with Texas and accident, and both Justice Gorfish and Justice Kavanaugh would have overturned that deficient and allowed Louisiana to announce an admitting privileges requirement and to show just how

powerful it is. Chief Justice Roberts, as I recall, said, look at I voted in the dissent on the prior case, so I think it's wrong and decided, but I'm still going to enforce it because it's the law exactly and teach. Justice Roberts is a justice who believes that starry, decisive

and principles of respect for precedents should occasionally carry today. However, the President's too most recent nominees have been more inclined to read that's the precedent and just based on that record, and again people like Senator Holly's faith in Judge Coney Barrett that suggests that she might be more in the mold of a Justice Cabinet or juice courseitch than the

Chief Justice. One of the cases that is scheduled at least right now to be argued is the Affordable Care Act case coming back up again that as we know, some of the Conservatives were disappointed with Chief Justice Drawber's first time around. Is I understand it, professor when she was professor there has actually been critical of what Chief Justice Roberts said in that case. Yes, although this version of the Affordable Care Act case is a little bit

wonkier because it really involves a two steps challenge. And the first argument in the case is whether the two thousand seventeen amendments to the Affordable Care Act by the Republican Congress strengthened the individual mandate and rendered it on constitution and all, and if the mandate is in fact unconstitutional, whether the rest of the Affordable Care Act must fall as well. Those arguments are, to put it mildly, pretty

legally outlandish. And so even if she disagrees with the Chief Justice's vote in the two thousand twelve decision that upheld the constitutionality of the Affordable Care Act, that doesn't necessarily mean and she would vote with the challengers in this case, although the fate of the Affordable Care Acts certainly did become a lot more precarious on Justice Ginsburg's passing, because to date, every judge who has been appointed by

a Republican president has endorsed the challenger's arguments, finding that the Affordable Care Act as amended is unconstitutional and that some of the other provisions in the Affordable Care Act have to fall together with that, including its protections for people with pre existing conditions. Okay, many thanks, really appreciate your being with us. That's Leo Littman. She's professor of

constitutional law at the University of Michigan. Sources tell us President Trump views the judge as a smart, hard nosed conservative who can have a long tenure on the High Court, But how will her legal views shape the Court's approach to the economy and to business. Joining us now to help answer that question is Ellen Werman. He is associate professor at the Sandra Day O'Connor College of Law at Arizona State University. Professor Werman specializes in administrative and constitutional law.

So welcome, professor, it's great to have you here. We tend to think about Supreme Court at least the popular culture in terms of abortion and gun control. But there are a lot of things the court does that really affect business as well. Do we have any sense of how a Judge Barrett becoming a justice Barrett might affect business? This is a hot topic sort of among lawyer circles and legal circles, but also been among the business community.

Is the role of the administrative state, the role of the administrative state in our constitutional system and its impact on businesses because, you know, in the traditional separation of powers model, Congress makes a law, the President executes the law on the courts that judicate the law, and businesses kind of know where to go if you want a law pass, to go to Congress, right if you're you're in trouble, you go to the courts and so on.

But today, more and more administrative agencies make the regulations right that buying businesses and that affect the business community, that tells businesses what they can and can do. These regulations are made pursued too really really broad delegations of

power from Congress. You know, Congress likes to pass statutes like you know, there shall be clean air, and it leaves it up to the agencies to figure out, well, who has to pollute less and you know the cost on businesses, And so we may see some revival of some older doctrines like the non delegation doctrine and other doctrines to try to reign in the administrative state. And and this has the potential to be a more business

friendly environment as a result of that. So when you talk with the administrative state, you're talking I think larger about some of what we call the independent agencies, the f c C, the FTC, the sec that are appointed by political people, but actually they have some tenure beyond that. That's right, and it's not just of these independent agencies, the so called independent commissions. What makes them independent is that they're somewhat insulated from the president's ability to fire them.

They're insulated by what's called for cause removal provisions. But also you know executive branch agencies that that aren't protected that way, the Environmental Protection Agency OSHA, the Occupational Safety and Health Administration under the Department of Labor. You know,

the these can be subcabinet departments. Were in theory there's a direct line of controls of the president, but for a large measure, They operate pretty autonomously, you know, pursuant to these broad authorities that that Congress gives the agencies. But yes, but independent agencies are sort of the biggest culprit what people tend to think about FTC SEC as you say, but it's also other, you know, other agencies as well that aren't technically independent. But but they still

exercise a lot of autonomous power. Given how large the country has gotten, the commerce has gotten, business has gotten Do we have any alternative but to delegate some of this? The president himself can administer every one of these laws. Yeah, it's true, you know, the society has gotten more complex. Congress doesn't have the capacity and the touching spand even if it had the desire, you know, to to legislate in more details. So maybe a delegation of powers inevitable.

But that doesn't mean there aren't you know, other options and potentially business friendly options. You know. The reins Act is an example. Ran Paul introduces it, I think every year. The reins Act basically would say, look for important and economically impactful regulations. The agency can go ahead and propose the regulation, go through the process, promulgate the regulation, but before it actually takes effect, before it has the force and effect of actual law, Congress has to vote on it.

So Judge Barrett has been on the Seventh Circuit Court of Appeals. Before that, she was fifteen years at Notre Dame Law School on the faculty there. Do we have any indication from her writings or rulings or writings how she might come down on this issue. I really can't say. I mean, as a general, you know, an originalist, someone

who takes the founder's intention seriously. You know, one can assume that you'll have the same or similar views at least to Justice Courseitch and Just Justice Kavanaugh and Justice Thomas and so on. But you know, I consider myself an originalist, and I have a and I write a lot on the nondelegation in doctrine, and I have very quirky views. You know, My view of what Congress is a lot to delegate is actually much more capacious than

Justice Thomas's view. So there is an intra originalist disagreement over the scope of the nondelegation doctrine, over just how limited Congress has to be and just where you know, the new justice will fall um you know, is yet to be determined. Are there possible raifications to go even beyond delegation or non delegation to the scope of the

commerce clause? Because we saw a Chief Justice Roberts, even as he voted to uphold the Affordable Care Acts based on the tax point, did a lot of Dictum, I thought, at least saying, you know what, I'm not sure the Commerce Clause goes that broadly, which would be a very big departure from where the Supreme Court has been. Yeah, I think that's right. Um, I I think we already

have had the votes before. As you say, under the Affordable Care Act case, the Supreme Court basically said in the fives or four part of its opinion that it would violate the Commerce clause to force people into commerce. But even then, you know, forcing people into commerce is pretty narrow. I mean, it's not like Congress does something like the individ to mandate that often. Right. The reality

is today almost everything affects commerce. Every you know, all economic activity in the States affect interesting commerce somehow, and I find it very unlikely that the Supreme Court is going to reconsider those cases. Fascinating. This is really truly helpful. Thank you so much to Professor Ellen Wherman. He is from Arizona State. The pick of Barrett is likely to energize conservatives and liberals alike, just over five weeks before Americans go to the polls. Barrett is only forty eight

years old. She also survived a tough confirmation fight in tween with a vote that fell largely along party lines. How will it shape up this time? Joining us to discuss is Bloomberg Political contributors Genie's Anno and Rick Davis. Genie is professor of political science that I own a college, and Rick is former campaign manager for the late John McCain. So welcome to both of you here. Genie, let me

start with you. I mean, as a practical matter, there may be a lot of heat and light here, but is there any question about how this is going to come out as a practical matter. As a practical matter, I don't think so. I think it is be clear that we are going to see not just a nomination, but a vote on a confirmation, and barring you know, something that comes up which is unlikely because this is somebody who has been vetted, we are going to see

a candidate get the vote on the floor. So the last time we had one of these Rick, remember Justice Kavanaugh, now Justice Kavanaugh, then Judge Kevina. There was a lot of electricity in that in that hearing from both sides. You remember how Lindsay Graham really went after the Democrats at one point. The republic is going to be really going after the Democrats are given the fact that they have the votes that they sort of lay low. Well, I think that they're gonna lay low. They've already set

the stage. Mitch McConnell, the leader of the Senate Caucus of Republicans, has already said that much to do about nothing. This President gets to make his pick, and the Senate has already counted the votes, and he's got the votes to pass us. So he's going to play this out as it's a foregone conclusion and try to actually make the Democrats look like they're making much to do about nothing.

One of the things that struck me and looking at the membership on the Jiciary Committee's you've got some centators up for re elections and some of them not clear how it's gonna come out. I mean, Lindsay Graham's the chair. He certainly said how he's going to come out. But what about Tom Tillison, even more important, maybe Joni Earns from Iowa. Rick, does she have to be a little careful about how she plays this, You know, look, I

think all of them do. I mean, I wouldn't exclude Lindsey Graham from the list of people who have to pay attention to the politics of this. He was in pretty bad shape before Kavanaugh and attributes to kavanaugh defense to helping him get through the primary and rebuild his support amongst the base. So I think that as many people as you have for you for passing a conservative judge, I think you have an equal amount these days who are going to be excited about the fact that you

ramrodded the process through. So even though it's not going to be a decision of whether you're gonna win or lose on about but the fact that it is being forced into decision before election day is going to cause some trouble for the till US's is in the earnest who have close races in states that intensity of vote is going to make the difference. So, Jennie, one of things that strikes me is, given how little time we have before the election, who occupies the airwaves really counts

a fair amount. This will really occupy the airwaves to some extent some of the attention of the electorate's certainly President Trump likes it that way from his point of view for his base. But one of a Kamala Harris, she's on this committee too, and she's been pretty effective as a prosecutor, as it were, in these hearings before. Yeah, absolutely, we're going to see an awful lot of of Kamala

Harris during this this period. I think to your point, the president is quite happy that the focus has changed from something like COVID that he doesn't do well in the polls on to something like this, which he feels strongly and the data seems to support this does energize

his base. But I think one of the real interesting questions here, when we're talking about somebody like a Kamala Harris or a Corey Booker who's also on the committee, or you know, an Amy Klobasher, is is this going to, for the first time, maybe since the early seventies, really energize the left as well. Um for a long time, because it was Republicans who felt like they were losing as a result of these judiciary picks and the makeup

of the Supreme Court. They were the ones that were so focused on the makeup and voting on this type of issue. But we're seeing just a lot of energy on the left of you know, ninety million dollars raised in the twenty four hour period after Ruth bader Ginsburg past. So I do think there is a question as to who this energizes, and I'm not sure we're going to know the answer to that until we see turnout in the election. Well, Rick, you've managed these campaigns, including for

president have of John McCain. Is this something that's big enough that could actually change the order of preference in terms of what people are concerned about? Before this, we thought we knew pretty much it's the economy, and it's coronavirus, maybe some healthcare. Could this really elevate this issue a social values issue up the ladder. You know, it's got

a lot of competition. As you point out, COVID and the economy have dominated the political scenes since March, and social unrest that's happening all around the country and most notably even this week in Louisville, has been the issue that has really sprung into this presidential campaign, mostly the Supreme Court politics revolve around the activists and the folks

who really followed this on a partisan basis. So the likelihood that this is going to somehow change swing voters minds as to how this is conducted, it is probably unlikely.

I would say as a campaign manager, I hated things like this because if I were running the Trump campaign and I had to make up a lot of ground, I would look at this issue is saying this is not what's going to get me swing voters, and I'm now going to freeze the election for at least a week after I had nominate this person to all the media attention. It's going to go on them instead of my candidate. And so I must say, freezing an election in the first week of October is not my idea

of a good strategy. Well, that's fast, and so Jenny, give me a sense, how does Senator McSally in Arizona feel about this right now? Or form or Jonny Arst we just talked about. We have some Republicans who are, as it were, on the bubble here. Yeah. Absolutely, And of course the Arizona race you mentioned is really really critical because depending on the timing. I mean, we know there will be a nomination and a confirmation hearing, we

don't know the timing of any of this yet. And depending on the timing, if we do see this drag on after the election and Kelly wins out in Arizona, he could be in Congress and have a vote on this if he gets to the floor, which I assume it will. So you know this, there's a lot of

uncertainty here. And you know, you mentioned some of these Republican senators who are on the CUSP, whether it's Joni Earnest or mcshally, who are you know, quote unquote fighting for their lives to a certain extent, I think it raises an issue for many of these senators, which is that they also need to be home campaigning and not necessarily on this issue. And I think Rick just raised

a really good point about the campaign. I think this is one reason you see the Democrats and you see Joe Biden trying to tie this so directly to healthcare, because not only does the Court have the healthcare case on the Obamacare case on November tent, but that is also something that helps Democrats win the election in and take the House and knowing what Rick said. They want to tie the importance of this nomination to the idea not just of something like a social issue like abortion,

but something that hits people even more directly. And we've seen it have an impact at the ballot box, and that's healthcare. And so they're trying to put the fear of God in people that this could make something like

you know, pre existing conditions and impact the Affordable Care Act. Yeah, and I would I would just extend on that team that Amy Cony Barrett is a big critic of a c A. She has been hostile to it throughout her career, and in the Republicans will make this a big deal that this is their chance to use the court to undermine a c A. And a lot of suburban voters have been supportive of a c A and so this is going to cut both ways. And and so it's going to be interesting to see how, you know, these

swing voters react to this kind of news. Not only a critic, she actually specificly criticized Chief Justice Roberts for his ruling in the A c A case. So it really sort of signals where she might well come out in this new challenge from the administration. At the same time, Rick, is this a little too fancy for voters just to get from the Supreme Court to the affordal care healthcare? I saw that Joe Biden's campaign did that just almost immediately,

within twenty four hours. That's where they were going with it, after the announcement of Ruth Vader to make this a placeholder for a debate on healthcare. They're going to be very happy at the Biden campaign, right, And so nobody's nobody is trying to make a case that somehow the selection of a judge is going to somehow on its own being issue. But their their views on a c as you just pointed out, are pretty clear and undeniable.

And so the Republicans will lean in and say, this is our chance to get rid of a c A. We haven't been able to do it legislatively, but we can do it, you know, through the court. In North Carolina, Donald Trump was out talking about a c A and his new plan once it's gotten rid of that he will implement. So you can tell both sides are girding for the emergence of health care is being the sort

of October surprise issue. Finally, Jeannie I wonder if in an election already people were pretty motivated on the one thing that ensures is people are going to vote, whether it's by showing up by mail. And this is going to motivate, as I say, both conservatives and liberals potentially to make sure they cast a vote. Yeah. I think, you know, there's so many issues on the table right now that are so important to people. Were in the

midst of a pandemic. Obviously, you've got all the racial and social unrest, You've got questions about, you know, at the same city of your vote when you go in, and then of course you you top it off with a Supreme Court potentially the President having his third picks of the Supreme Court. And I think it really does energize people on both sides. I go back to the fact that because we have an electoral college, it's really the moderate and independent voter in the middle that matters.

And I think where they come down and if this motivates them, it's the real question to watch in places like Florida and North Carolina and Wisconsin and Michigan, and the polls suggests aren't very many of those decided left. Okay, many thanks to Bloomberg political contributors jennie's Ao and Rick Davis. This is a Bloomberg Radio special selecting the next Supreme

Court Justice. Stay tuned to Bloomberg Radio in the days and weeks ahead for the latest on the fight to confirm Judge emy Cony Barrett to the High Court, plus the latest on the race for the White House, including the first presidential debate. This Tuesday night, We'll bring you live coverage and analysis starting at eight thirty Wall Street Time on both Bloomberg Radio and television. Thanks for listening. I'm David Weston and this is Bloomberg. M HM.