On Saturday, President Donald Trump announced his nomination of Judge Amy Coney Barrett to the Supreme Court. Democratic presidential candidate Joe Biden immediately responded by painting the action as “a clear attempt to undermine” Obamacare. As the USA Today reported, Biden claimed in a Sunday speech,
“ This is about your healthcare. This is about whether or not the ACA will exist. This is about whether or not preexisting conditions will be continued to be covered. This is about whether or not a woman can be charged more for the same procedure as a man. This is about people’s health care in the middle of a pandemic.”
Biden, and others, are raising the threat of an end to Obamacare because of a lawsuit scheduled to come before the Supreme Court just after the election, California v. Texas. The core premise of the lawsuit revisits the prior Supreme Court decision on the law, National Federation of Independent Business v. Sebelius, in which the NFIB, opposing the law, argued that the federal government did not have power to mandate that residents purchase health insurance; Chief Justice John Roberts and a 5-4 majority of justices ruled that the “mandate” penalty was actually just a tax and thus constitutional. Because the 2017 tax cut legislation also ended this penalty-tax, the new lawsuit asserts that the law as it now exists has been rendered unconstitutional because the penalty, even if it only exists in the abstract, is no longer a constitutional “tax” and the nature of the law requires that the entire law be struck down rather than only the unconstitutional elements. (See Kaiser Family Foundation for a nonpartisan explainer.)
Is there a serious likelihood of the court ruling in this manner? The ACA-supporting Center for Budget and Policy Priorities calls the case “absurd” and “ludicrous” (or, strictly speaking, cites experts who claim this), and makes the claim that, when Congress eliminated the penalty-tax without making any other changes to the law, that was an indirect affirmation that the rest of Obamacare should stay.
Nonetheless, that’s the context for attacks on Barrett — and claims that she would be so extreme that not even Social Security is safe, as the New York Times, yesterday, published a column claiming:
“At least as consequential [as a potential Roe v. Wade ruling] might be her position on the Social Security Administration: She has suggested that an originalist — whose view of the law is rooted in the idea that the duty of judges is to ascertain whether laws reflect the original meaning of the Constitution — might say that it is not clearly permissible given a strict reading of the Constitution” —
a statement that led to Laurence Tribe’s claim on Twitter that “Even Social Security could be on the chopping block,” as well as similar claims that “Amy Coney Barrett has written that the creation of Social Security and the desegregation decision of Brown v. Board of Education are ‘Constitutional errors’ that the Court or Congress should reverse”, that “she’s against social security, saying it’s unconstitutional,” and so on.
And last week, at The Week, Ryan Cooper described her as “a hard-line social conservative who has suggested that paper money, West Virginia, the Fourteenth Amendment, and the Social Security Administration are all possibly unconstitutional.”
So what’s the source for these claims? Barrett, with a co-author John Copeland Nagle, wrote an article in 2016, “Congressional Originalism,” for the University of Pennsylvania Journal of Constitutional Law, which addressed the question of what a principled originalist (that is, one who believes the courts ought to solely consider the Constitution’s original meaning in deciding cases) ought to do in cases in which reversing a precedent would “wreak havoc,” when one believes that the decision was nonetheless “inconsistent with the Constitution’s original public meaning.” And indeed she does write,
“Adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education” and later lists “the constitutionality of the Social Security Administration, paper money, or segregated public schools” as among decisions that the Supreme Court has opined on in ways that she calls “arguably nonoriginalist.”
But Barrett and Nagle follow this statement up with a footnote:
“We do not want our choice of examples to obscure our argument. We identify some well-settled precedents whose consistency with the original public meaning has been challenged, but we recognize that different readers will reach different conclusions about whether any given precedent in fact conflicts with the text. We do not ourselves undertake to examine how any of the precedents we mention would fare under an originalist analysis. For our purposes, it is sufficient to say that it is inevitable that some well-settled precedents conflict with the original public meaning, and we use the familiar examples simply to illustrate the nature of the problem posed by such a conflict.”
In other words, when Barrett and Nagle list Social Security as a possibly-unconstitutional program, it isn’t a claim of personal opinion.
And the overall tenor of the argument is not to propound a new theory but to address claims that originalists are hypocrites for, in fact, not seeking to “wreak havoc” at every turn.
But what does the article say about these “super precedents”?
Barrett and Nagle write:
“The issue is not, as is commonly assumed, a matter of stare decisis: the force of these super precedents derives not from the Court’s decision to afford them precedential strength but from the People’s choice to accept them. Once a precedent is deeply rooted, challenges die out and the Court is no longer required to deal with the question of the precedent’s correctness. The rules of adjudication, moreover—including the Court’s practice of answering only the questions presented in the petition for certiorari—relieve the Court of any obligation to identify and correct any error that may lurk in a case.”
Later, they define “super precedents”: “the term . . . is a descriptive one capturing the hard-to-dispute reality that regardless of whether they are right or wrong, some cases are so firmly entrenched that the Court would not consider overruling them. . . . 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.”
The pair then write that because in some instances (though without specifics), these cases are “contrary to the Constitution’s original meaning,” there has been a critique of “originalist” judges that they cannot truly keep to their principles all of the time. However, the authors explain that any case that makes its way up to the Supreme Court is by definition not “super precedent,” because it is in the nature of “super precedent” decisions that their longstanding acceptance means that lawsuits challenging them would not make it very far: “An outlier litigant who did so in a district court would lose on a motion to dismiss, and the court of appeals would summarily affirm” because, again, “super precedents are defined as opinions that have won nearly universal acceptance.” What’s more, they argue that Supreme Court Justices are only obliged to tackle cases at hand, not to proactively right every wrong: “Institutional features of Supreme Court practice permit all Justices to let some sleeping dogs lie, and so far as we are aware, no one has ever argued that a Justice is duty-bound to wake them up.”
(Incidentally, the title of the article, “Congressional Originalism” suggests it has to do with Congress, and, in fact, the main content of the article addresses originalism in Congress, that is, whether and how legislators ought to consider the question of whether legislation at hand is constitutional.)
All of which means, in the end, that, no, neither Social Security, nor paper money, nor the Louisiana Purchase are at risk from Amy Coney Barrett.
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