•   
  •   
  •   

US Amy Barrett's law review articles show how Supreme Court rulings like Roe v. Wade could be challenged

13:05  12 october  2020
13:05  12 october  2020 Source:   usatoday.com

How we got here: The battle over Amy Coney Barrett's nomination to the Supreme Court, recapped

  How we got here: The battle over Amy Coney Barrett's nomination to the Supreme Court, recapped Supreme Court confirmation hearings are set to begin Monday for President Donald Trump's Supreme Court nominee Judge Amy Coney Barrett as the fight to fill Ruth Bader Ginsburg's seat on the Supreme Court moves into its final phase. © Olivier Douliery/AFP via Getty Images Supreme Court nominee Amy Coney Barrett and President Donald Trump on Sept.26, 2020, in the Rose Garden of the White House. Though Republicans are speeding the process along, Barrett's confirmation will still take time. They plan to hold four days of confirmation hearings and to fill the seat by Election Day.

Amy Coney Barrett is one of Trump's top picks to be the newest Supreme Court justice, and would replace Justice Anthony Kennedy. Kavanaugh has said in the past he considered Roe v . Wade to be settled law , but Barrett ' s position isn't as clear. How Barrett Has Stood on Faith and Abortion.

Barrett was grilled about a law review article she co-wrote during law school on whether Catholic judges have the moral obligation to recuse themselves In a speech Barrett gave at Notre Dame on the 40th anniversary of Roe v . Wade , she declared it “very unlikely” the court will ever overturn Roe ’ s

Amy Coney Barrett told a Jacksonville University audience in 2016 the Supreme Court is unlikely to overturn a woman’s right to an abortion, the key holding of the landmark Roe v. Wade decision.

Donald Trump wearing a suit and tie: President Donald Trump announces Judge Amy Coney Barrett as his U.S. Supreme Court nominee on Sept. 18 in Washington. © Olivier Douliery/AFP via Getty Images President Donald Trump announces Judge Amy Coney Barrett as his U.S. Supreme Court nominee on Sept. 18 in Washington.

However, Barrett has written law review articles that outline arguments attorneys theoretically could use in trying to strike down that ruling and other precedents, though the writings are analyses that don't urge specific action or say how she would decide specific cases. Among them: She cited legal experts who do not count Roe v. Wade among so-called "super precedents" — Supreme Court decisions that are so ingrained in American life that they can't be overturned.

Barrett back on Capitol Hill for senators' final questions

  Barrett back on Capitol Hill for senators' final questions WASHINGTON (AP) — Supreme Court nominee Amy Coney Barrett returns to Capitol Hill for a third day of confirmation hearings as senators dig deeper into the conservative judge's outlook on abortion, health care and a potentially disputed presidential election — the Democrats running out of time to stop Republicans pushing her quick confirmation. require(["medianetNativeAdOnArticle"], function (medianetNativeAdOnArticle) { medianetNativeAdOnArticle.getMedianetNativeAds(true); }); Wednesday's session is set to be Barrett's last before the Senate Judiciary Committee.

Amy Coney Barrett , Donald Trump’ s latest controversial nominee for the US supreme court , will tell senators in her high-stakes confirmation hearing this week that she will approach cases based on the law , not her personal views, as Democrats urged her to step aside on upcoming contentious cases.

In an early 2017 law review essay, reviewing a book related to the Supreme Court ruling on the Affordable Care Act, Barrett criticized Chief Justice A strong point of concern for Barrett ' s critics is whether she would help lead the way toward reversing the 1973 landmark Roe v . Wade ruling , which

The potential for Barrett to join a 6-3 conservative majority that could erase the controversial, nearly 50-year-old ruling is expected to be one flashpoint during her Senate confirmation hearings scheduled to start Monday.

Start the day smarter. Get all the news you need in your inbox each morning.

Supreme Court nominees historically have avoided expounding on their views on specific cases and decisions. But since Trump nominated Barrett to the court two weeks ago, opponents of Roe and the Senate's Republican majority have been heartened by clues from the devout Catholic, whose religion calls for protecting human life from conception to natural death, with rare exceptions.

Fact check: Image showing fly on Amy Coney Barrett’s shoulder during hearing posted as a joke

  Fact check: Image showing fly on Amy Coney Barrett’s shoulder during hearing posted as a joke A viral image of a fly on Amy Coney Barrett's shoulder during her Senate hearing is satirical. The poster and video footage confirm there was no fly.A viral image appears to show a fly on Barrett’s shoulder as she sat during the first day of her Senate hearings. A timestamp in the top left corner of the images reveals that it was taken at 2:08 p.m. ET on Capitol Hill.

Who is Amy Coney Barrett ? favoured by social conservatives due to record on issues like abortion and gay Anti-abortion groups like Texas Right to Life celebrated the Barrett ' s announcement, noting that she According to law professor Perry, if Texas does go blue, the Democrats could inherit a legal

Barrett criticized Roberts' opinion concluding that the law is constitutional because its penalty for not purchasing insurance – since reduced to zero – can be 10 ways the Supreme Court could change. Amy Coney Barrett signed anti-abortion letter accompanying ad calling to overturn Roe v . Wade .

Amy Barrett's opening statement: Read Trump Supreme Court nominee's opening statement

Confirmation hearings preview: Amid pandemic and presidential race, Barrett's hearing will be unprecedented

During her years as a law professor, Barrett was a member of the University of Notre Dame’s “Faculty for Life,” and in 2006 she signed an anti-abortion letter that accompanied a newspaper ad calling for "an end to the barbaric legacy of Roe v. Wade." But she has said she would keep her personal views out of the courtroom.

As an "originalist," she believes judges must adhere closely to the written text of the Constitution and the plain meaning of language used in statutes at the time they were enacted.

“I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it," Barrett wrote in a 2013 Texas Law Review article.

Trump-Biden town halls, Amy Coney Barrett hearings, Medicare open enrollment begins: 5 things to know Thursday

  Trump-Biden town halls, Amy Coney Barrett hearings, Medicare open enrollment begins: 5 things to know Thursday NBC and ABC host dueling town halls with Trump and Biden, final day of hearings in Amy Coney Barrett's nomination and more things to know Thursday.Start the day smarter. Get all the news you need in your inbox each morning.

Barrett , a longtime Notre Dame law professor appointed by President Trump last year to the Court of Appeals for the Seventh Circuit, in legal articles has backed a “soft” While judicial nominees typically avoid commenting on specific court rulings , Barrett ’ s philosophy on stare decisis — along with her

The Supreme Court in the past 50 years has simply invented new “constitutional rights” that are nowhere to be But progressives have short memories, and history shows that a Supreme Court unmoored from President Trump’ s Supreme Court nominee Amy Coney Barrett on Wednesday

Such statements helped persuade Sen. Josh Hawley, R-Mo., who has said he would not support a Supreme Court nominee unless they agreed with his position that Roe v. Wade was wrongly decided.

“There’s plenty of evidence, I think, to demonstrate that she understands that Roe is — in my words — an act of judicial imperialism,” Hawley told The Washington Post. “And I feel very comfortable with her on that issue.”

Some constitutional law experts are similarly convinced of Barrett's potential impact on abortion rights.

"I am very skeptical that precedent will matter at all to Judge Barrett if she is on the Supreme Court and has the chance to overrule Roe v. Wade," said Erwin Chemerinsky, the dean of the University of California's Berkeley Law and author of "We the People: A Progressive Reading of the Constitution for the Twenty-First Century."

However, Teresa Collett, a professor at the University of St. Thomas School of Law who directs the Minnesota school's Prolife Center, said Barrett "recognizes the value of stability and predictability in the law," two benefits "that arise from adhering to judicial precedents."

Amy Coney Barrett hearings conclude: Here's what happens next in Supreme Court confirmation

  Amy Coney Barrett hearings conclude: Here's what happens next in Supreme Court confirmation Here’s what to expect and when she could officially be sworn in as the ninth justice on the Supreme Court. More: Amy Coney Barrett Supreme Court hearings conclude, paving way for confirmation days before election More: How we got here: The battle over Amy Coney Barrett's nomination to the Supreme Court, recapped Committee vote Oct. 22 The Senate Judiciary Committee – the same 22-senator panel that spent the week questioning Barrett – will vote on Oct. 22 at 1 p.m. EDT on Barrett’s nomination.

U. S . Court of Appeals for the 7th Circuit Judge Amy Coney Barrett , a law professor at the “Nothing in Roe … or any other case from the Supreme Court can be read to limit a woman’ s right in this She joined a ruling that job applicants cannot use age-discrimination law to sue over hiring practices that

Amy Coney Barrett put her name on a newspaper ad that decried the “infamous” 1973 Roe v . Wade ruling and said abortions had killed “55 million unborn children” over four decades, according to a new disclosure by the U. S . Supreme Court nominee.

The benefits of letting precedent-setting decisions stand "clearly accrue when the reasoning of the cases is clear and persuasive to a large majority of Americans," said Collett, who said she taught Barrett in a law school course as a visiting professor.

In some judicial rulings, however, "the reasoning is opaque, flawed or unpersuasive," Collett said. "Those cases can actually be destabilizing and cause a significant number of citizens to lose faith in the political neutrality of the courts. Thus, overturning or reading such cases as narrowly as possible may be appropriate."

Barrett has described how precedents can be overturned

Although the Supreme Court does overturn previous decisions, it rarely strikes down major precedents. Barrett's article in the Texas Law Review and other writings explain why.

First, there's the legal principle of stare decisis, a Latin term that refers to standing by previous rulings when deciding a similar case. Another issue is reliance, a reference to the fact that citizens, businesses and organizations have ordered their lives and affairs on a precedent-setting ruling.

Barrett in her own words: We binge-watched 15 hours of Amy Coney Barrett's speeches. Here’s what we learned about her judicial philosophy

Supreme Court will rule on Trump's plan to exclude undocumented immigrants from House apportionment

  Supreme Court will rule on Trump's plan to exclude undocumented immigrants from House apportionment Excluding undocumented immigrants likely would reduce the number of House seats in states such as California, Texas, Florida and New York.The action follows President Donald Trump's issuance of a memorandum in July advising that millions of undocumented immigrants should not be counted when it comes to deciding each state's share of the 435 seats in the House of Representatives.

Amy Coney Barrett: Talented judge, popular professor brings solid conservative credentials

And then there's the reputation of the court: protecting it from any suggestion that its decisions are motivated by politics or personal preference rather than sound legal arguments.

After outlining the hurdles, Barrett's writings cited legal rationales that clear them — essentially arguing that the Supreme Court can overturn precedent without devastating its reputation or upending Americans' lives.

"Stare decisis is relatively weak in constitutional cases," she wrote in the Texas Law Review article.

Although justices must consider how their decision could be disruptive, she wrote, they would not overturn precedent "unless at least five justices are certain enough of their own approach to assume the risk of disturbing" the nation's reliance on the precedent being challenged.

As for public perception, "even assuming that the Court should make decisions with an eye toward its reputation, there is little reason to think that reversals would do it great damage," Barrett asserted in the Texas Law Review article.

Roe v. Wade not included among 'super precedents'

Some Supreme Court decisions have become so deeply part of the fabric of U.S. life and history that some constitutional law specialists have classified them as super precedents.

"They have five characteristics: endurance over time, support by political institutions, influence over constitutional doctrine, widespread social acquiescence, and widespread judicial agreement that they are no longer worth revisiting," Barrett wrote in "Congressional Originalism," a 2017 article she co-authored with then-Notre Dame Law School Professor John Copeland Nagle in the University of Pennsylvania Journal of Constitutional Law.

Fact check: True claim about Harris failing bar exam on first try and Barrett's law school rank

  Fact check: True claim about Harris failing bar exam on first try and Barrett's law school rank A post compares the early career qualifications of Judge Amy Coney Barrett and Sen. Kamala Harris. We rate this claim true.One user took to Facebook to compare the qualifications of the conservative Supreme Court nominee and the Democratic vice presidential nominee.

Citing lists by some legal experts, Barrett and Nagle wrote that the cases include Marbury v. Madison, the 1803 case that established the U.S. system of judicial review, and Brown v. the Board of Education of Topeka, the 1955 ruling that declared racial segregation in public schools unconstitutional.

Many of the lists compiled by such experts do not include Roe v. Wade. In a footnote to the 2017 article, Barrett and Nagle cited a 2006 University of Minnesota Law Review essay by Michael Gerhardt, a University of North Carolina School of Law professor whose research focuses on constitutional conflicts between presidents and Congress.

"Justices and others who support the outcome in Roe v. Wade may be eager to give Roe 'super precedent' status, but the persistent condemnation of Roe, particularly by national political leaders ... as well as a current majority of the United States Senate undermines its claim to entrenchment," Gerhardt wrote.

In her Texas law journal article, Barrett appeared to be open to reassessment of Roe by the Supreme Court.

“If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging," she wrote. "Court watchers embrace the possibility of overruling, even if they may want it to be the exception rather than the rule.”

How would Roe v. Wade fare with Barrett on the Supreme Court?

If the Senate confirms Barrett's nomination, could she provide the legal impetus to overturn the ruling? Legal experts who have examined her writings and court decisions offer conflicting scenarios.

"I don’t doubt that Judge Barrett would be more prepared to overturn significant Supreme Court precedents than anyone on the current Court other than perhaps Justice (Clarence) Thomas," said Laurence Tribe, a Harvard Law School expert on constitutional law who had a young Barack Obama as a law school researcher.

Senate Democrats will boycott Amy Coney Barrett's Supreme Court confirmation hearing vote as GOP vows to move forward

  Senate Democrats will boycott Amy Coney Barrett's Supreme Court confirmation hearing vote as GOP vows to move forward Senate Democrats say they will boycott a committee hearing Thursday where Amy Coney Barrett's Supreme Court nomination is set to move forward.The Senate Judiciary Committee is set to vote tomorrow afternoon on Barrett's confirmation to the high court, a vote that was expected to pass along party lines and send her nomination to the full Senate for a Monday vote — just eight days before Election Day.

"Her writing on the subject is admirably candid even if shockingly unconservative," Tribe said. "She strongly believes that a Supreme Court justice who believes a prior decision, whether about the Constitution or about the meaning of an act of Congress, was wrong should feel free to overrule it without any substantial concern for the importance of stability and predictability in the Court’s jurisprudence."

Ongoing legal battles: Supreme Court's split decision for abortion rights gives opponents an unlikely boost

Jonathan Turley is a professor at George Washington University Law School who testified in support of Justice Neil Gorsuch's appointment to the Supreme Court in 2017. Turley said he, too, believes the Supreme Court has at times overemphasized stare decisis.

"Barrett clearly has the intellectual focus and intestinal fortitude to overturn major cases if she views the underlying interpretations to be flawed," Turley said. "Much like (the late Justice Ruth Bader) Ginsburg, she comes to the Court with a clear jurisprudential foundation."

Turley said he sees signs that Barrett has "fundamental reservations with the underlying rationale of Roe. ... She could well vote to overturn the case but most clearly would support the expansion of state authority over collateral limits and conditions on abortion service."

In her 2016 Jacksonville lecture, Barrett predicted a conservative-majority Supreme Court could affirm states' regulations on abortion, though she didn't expect the fundamental right to an abortion would be overturned. The cases that have come before the court in recent years have generally focused on laws placing restrictions on who can get and perform abortions.

Michael McConnell is a former judge on the Court of Appeals for the Tenth Circuit who was nominated to the post by President George W. Bush. He predicted Barrett would overturn Supreme Court precedents "less often than Justice Ginsburg."

If Barrett were presented with a state's "reasonable regulation" on abortion, McConnell predicted "she's very likely to vote to uphold it."

"But I don't think the words, 'Roe v. Wade has been overturned by the Supreme Court' will be written for some time to come, unless public opinion shifts," said McConnell, now a professor at Stanford Law School. "Opinion has been relatively stable over time."

This article originally appeared on USA TODAY: Amy Barrett's law review articles show how Supreme Court rulings like Roe v. Wade could be challenged

Senate Democrats will boycott Amy Coney Barrett's Supreme Court confirmation hearing vote as GOP vows to move forward .
Senate Democrats say they will boycott a committee hearing Thursday where Amy Coney Barrett's Supreme Court nomination is set to move forward.The Senate Judiciary Committee is set to vote tomorrow afternoon on Barrett's confirmation to the high court, a vote that was expected to pass along party lines and send her nomination to the full Senate for a Monday vote — just eight days before Election Day.

usr: 6
This is interesting!