But as the Senate Judiciary Committee holds hearings on Barrett’s nomination, Democrats have focused a lot of attention on how Barrett might vote in a single case involving a statute that a Democratic-controlled Congress could reenact and rewrite.
The statute is the Affordable Care Act (also known as Obamacare), and Democratic senators used the opening of the Barrett hearing to warn that the nominee might vote to strip the law’s protections from vulnerable Americans during a pandemic.
In her opening statement on Monday, Sen. Dianne Feinstein focused not, as some might have expected, on whether Barrett might join in overturning Roe vs. Wade, but on the danger that Barrett would rule the wrong way in California vs. Texas, a case that will be argued before the court a week after the election. At issue there is whether the ACA’s mandate that adult Americans obtain insurance coverage is unconstitutional and, if so, how many (if any) of the law’s other provisions need to be struck down with it.
Feinstein warned that a decision striking down the entire ACA would jeopardize the healthcare of millions of Americans. She spoke poignantly about Christina Munro Garcia, who was able to have cataract surgery because she had coverage through the ACA.
Sen. Kamala Harris name-checked Roe vs. Wade and Obergefell vs. Hodges, the 2015 decision declaring a right to marriage for same-sex couples. But first she showed a picture of Myka, an 11-year-old girl with a congenital heart condition who has benefited from the healthcare law.
Democrats are probably exaggerating both the significance of California vs. Texas and the possibility that the court, with or without Barrett, will use that case to dismantle the ACA.
Several states and the Trump administration are arguing that when Congress reduced to zero the income-tax penalty in the law for not purchasing health insurance, it nullified the basis on which the court found the so-called individual mandate to be constitutional: that it was an exercise of Congress’ taxing power. (As Feinstein pointed out, Barrett has questioned Chief Justice John G. Roberts Jr.’s reasoning on this point.)
The challengers argue that if the court finds the individual mandate unconstitutional, the entire ACA must be struck down. If the Supreme Court agreed, that would lead to the stripping of coverage, as the Democrats warned, from more than 20 million people.
But even if the court accepts the argument that the mandate is unconstitutional — not a foregone conclusion — it could “sever” that provision, upholding much or all of the rest of the law.
However the court rules, a Congress in which both the Senate and House are controlled by Democrats — a real possibility after the Nov. 3 election — could reenact the ACA and fine-tune it to insulate against any constitutional challenge. That could happen a year into Barrett’s tenure on the court.
On Tuesday, when senators got to question Barrett, there were questions from Democrats about how Barrett would approach abortion rights and the 2nd Amendment. Barrett told Feinstein that she would join the court with “no agenda to try to overrule Casey,” a reference to the 1992 Planned Parenthood vs. Casey decision that affirmed the “essential holding” of Roe vs. Wade.
But the Democrats also kept focusing on the ACA. After questions for Barrett about abortion and gun control, Feinstein returned to healthcare, suggesting that her vote would depend on how she thought Barrett would rule on matters involving “life or death questions for people.”
The Democrats’ emphasis on the ACA case seems more about shoring up their credibility with voters than about weighing what sort of justice Barrett would be over what could be a very long career on the court.