SCOTUS implications: Congress needs to tighten up their lawmaking

Barring something truly extraordinary and unforeseen, Barrett is joining the court. From what I've read and heard, she sees herself as carrying forward the legacy of Justice Scalia -- an originalist, textualist approach. As news coverage has noted, this doesn't bode well for Roe, the ACA, gun restrictions, and much regulatory authority in general.

If we're looking for an optimistic take on this, though, I'll note that Barrett strikes me as someone deeply committed to her judicial philosphy, but not a partisan hack. If liberal policy can be advanced and defended with originalist arguments, I don't see her as someone who will hypocritically abandon her views and vote against such laws simply because she is a conservative.

There's an argument I've heard that Democrats have gotten a bit too used to letting the courts be their backstop, and I think there's some truth to this. The ACA was quite a mess, for instance. Timing was certainly part of the reason, but if Congress had known the kinds of arguments that would be advanced against it, would they really have written it in exactly the same way, even accounting for the messy compromises and compressed time frames they were working with? And on abortion rights, how many laws have Democrats advanced actually seeking to protect and expand reproductive freedom beyond the minimums guaranteed by Roe?

I think that as a textualist, Barrett would have a difficult time striking down laws where Congress's intent and language are clear and which ground themselves in the law-making powers granted them by the Constitution. Gun rights will be hard -- liberals needs a compelling legal narrative around the second amendment. Reproductive rights could (and would need to be) strongly guaranteed by Congress in "blue" states, though I am not sure to what extent they could be guaranteed nationwide -- I think a well-crafted law would be a challenge for Barrett, especially if the law made allowance for religious exemptions. Immigration -- well let's be honest, Congress hasn't really done much legislating at all here.

With the cover of the court gone, maybe this removes one of the ways Congress has been able to duck actually legislating. Maybe in the long run we actually end up in a healthier place where there's less reliance on executive orders and court rulings and more activist lawmaking. Not sure how likely that is, but if we're looking for optimism, that's a way forward.

oh, c'mon. There's no such thing as a textualist or originalist. It's right wing b.s.

She's already criticized Roberts for saving the ACA. She'll definitely vote against it.

I have to tell you, this is a terrible take.

Also, the current legal argument against the ACA is so spurious, so lacking in legal integrity that there's no way the law could have been written to prevent the lawsuit. They're just making sh!t up and happen to be finding the right judges to push it through, like sh!t through a goose.

drummerboy said:

Also, the current legal argument against the ACA is so spurious, so lacking in legal integrity that there's no way the law could have been written to prevent the lawsuit. They're just making sh!t up and happen to be finding the right judges to push it through, like sh!t through a goose.

 I don't know that Barrett is a shoe-in for overturning the ACA. The argument she criticized Roberts for is different than the one being made now. Like Gorsuch in Borstock v Clayton County, I think there's a chance we'll be surprised.

But my larger point is, given that we almost certainly are going to see a solidly 6-3 court at the beginning of Biden's term, Congress should take that into account when legislating. And I don't think that has to mean giving up on liberal principles and goals, but it does mean doing a better job legislating than they historically have been. First, by actually doing a lot more of it, and second, my paying more attention to their wording. They should assume legislation will receive a hostile and uncharitable interpretation of any ambiguities and confusion in the text.

If Barret joins the new conservative supermajority instriking down the ACA, Congress needs to pass a new version of it, and one that can withstand hostile judicial attacks. Even if the ACA stands, we need a new version, as the current ACA's flaws have become very clear, and again, with the understanding that the law needs to withstand judicial attacks. This is true even if Democrats decide to expand the courts -- we don't actually know how that will play out and surely writing in such a way that is likely go garner support even from Gorsuch and Barrett will be more robust than relying on only the liberal wing of the court, even if that wing is fortified by court expansion.

Thanks, PVW. This is illuminating.