In her opening statement to the Senate Judiciary Committee Monday, Supreme Court nominee Amy Coney Barrett said elected officials, not judges, should determine public policy. In the coming days of questioning, Democrats should focus, laser-like, on that principle as it applies to the GOP’s ongoing attempt to kill the Affordable Care Act — something the party has been unable to do legislatively, so is trying to get the high court to do. Aren’t such end-runs around Congress exactly what Barrett says judges shouldn’t do? The question demands an answer.
The underlying outrage of the hearings that started Monday aren’t about the nominee herself, but the corrupt process under which she is being confirmed. Senate Republicans in 2016 blockaded then-President Barack Obama’s Supreme Court nominee, Merrick Garland, holding the seat open for 11 months, until President Donald Trump could take office and fill it. Senate Majority Leader Mitch McConnell piously declared back then that “the people” should get to choose the next justice via their presidential vote. Having refused to seat a qualified judge for almost a year, Senate Republicans now rush to seat Barrett in mere weeks, denying voters the very say that McConnell once deemed so important.
The stakes are huge, and immediate. One week after the election, the Supreme Court will hear a GOP-backed case seeking to kill the ACA in its entirety. It stems from a national suit by Republican state attorneys general arguing that because a Republican Congress zeroed out the tax penalty for failing to carry health insurance, the entire law must fall.
If the Supreme Court agrees, 20 million Americans who are on Obamacare will lose their health care coverage immediately. Another 135 million who suffer from preexisting conditions (including COVID-19) will risk losing coverage, since the ACA is all that prevents insurance companies from resuming their previous practice of blackballing such patients. The Trump administration officially supports the suit; President Donald Trump claims he has a stellar new plan to replace Obamacare, but there’s been no indication he actually does.
In addition to its recklessness and heartlessness, the GOP suit has always reeked of ideological hypocrisy. The ACA was approved by Congress, has withstood a decade of legal and legislative assault and now is consistently supported by more Americans than oppose it. Yet Republicans are effectively asking the Supreme Court to repeal it — to legislate from the bench, which is exactly what the party historically accuses liberal judges of doing.
Barrett will almost certainly decline to predict her action on the case, should she be on the court when it’s heard. But she shouldn’t be allowed to sidestep the broader question of what constitutes the kind of political judicial activism she claims to abhor — and how she or any fair-minded judge could see this suit as anything else.
