Supreme Court nominee Amy Coney Barrett told a Democratic senator Wednesday that she believes key cases upholding the constitutionality of the Affordable Care Act are precedent, but she did not say whether she believes the health-care decisions should be reconsidered.
It’s standard for candidates to the Supreme Court to decline, whether in private or during public testimony, to weigh in on the legality of cases on which he or she may have to rule. But Barrett’s view on health care is under particular scrutiny as Democrats highlight her previous writings criticizing decisions upholding the health care law and that she may be seated in time to hear a major case on the constitutionality of the ACA in November.
Particularly scrutinized is a 2017 essay that Barrett penned for a Notre Dame Law School journal in which she argued that Chief Justice John G. Roberts Jr., Jr., who wrote the majority opinion when the Supreme Court upheld the constitutionality of the health-care law in 2012, “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
Sen. Christopher A. Coons (D-Del.), who talked by phone with Barrett on Wednesday, said he asked her about a pair of Supreme Court decisions upholding the Affordable Care Act as well as the 2017 essay. Barrett, Coons said, repeatedly declined to speak to the specifics of a case, saying “she wouldn’t get into the details of how she might rule.”
“The ACA is not just on the docket of the Supreme Court,” Coons, a member of the Senate Judiciary Committee, told reporters on Wednesday. “It’s on the ballot this fall.”
The conversation between Coons and Barrett is part of the traditional Supreme Court confirmation process that has become quite unusual not only because of the intense toxicity around her nomination but also because of the effects of the coronavirus pandemic hitting the Capitol.
At least eight Democratic senators have met with Barrett — either in person or via phone — while a host of others have refused the courtesy sit-downs because they don’t want to legitimize a confirmation process they say should not occur.
Sen. Joe Manchin III (D-W.Va.) quietly met with Barrett in the Capitol on Thursday, and in a statement released the following day said her writings on the ACA “continue to give me serious concerns” about her confirmation.
An aide to Sen. Dianne Feinstein (D-Calif.), the Judiciary Committee’s ranking Democrat, confirmed that the senator spoke with Barrett on the phone Wednesday, but declined to give further details. Sen. Sheldon Whitehouse (D-R.I.) also had a phone conversation; a spokesman said he “walk[ed] her through his concerns about dark-money influence around the Supreme Court, which he called ‘the scheme around the Court.’”
White House spokesman Judd Deere said that during the calls, Barrett “emphasized the importance of judicial independence and spoke about her judicial philosophy and family.”
The meetings are also used to preview some of the lines of questioning from senators at the confirmation hearing. For Barrett, many of the questions from Democratic senators at her hearing starting Monday will center on health care and the fate of the ACA.
In her meeting with Coons, Barrett said that she has had no conversation with President Trump about any particular decision or case. She also made no commitment to recuse herself from any election-related disputes that may rise to the Supreme Court — a call made by a slew of Democrats because of the explicit link that Trump has made between potential election challenges and the need to have a full slate of nine justices to hear them.
Trump announced in a White House ceremony on Sept. 26 that he would nominate Barrett, a judge on the U.S. 7th Circuit Court of Appeals, to replace the late Justice Ruth Bader Ginsburg. Well over a half-dozen people known to have attended the Rose Garden event have tested positive for covid-19, which Coons said was “ironic bordering on the tragic.”
Coons said he also stressed to Barrett that squeezing her confirmation through the Senate before the Nov. 3 election “is divisive and has no precedent.”
“Judge Barrett possesses qualifications that I think are appropriate and relevant for a nominee for the most significant court in our country,” Coons said. “My concern isn’t her qualifications. It’s her judicial philosophy and her views.”
President Trump has nominated federal appellate judge Amy Coney Barrett to the Supreme Court. If the GOP-controlled Senate confirms Barrett, Trump will have solidified a long-elusive 6-to-3 conservative majority.
Who is Amy Coney Barrett? A disciple of Justice Antonin Scalia is poised to push the Supreme Court further right
What happens next: Here’s how the confirmation process for Barrett will unfold
The most important news stories of the day, curated by Post editors and delivered every morning.