Trump Nominee Will Join Equality Fight on Divided Supreme Court
(Bloomberg) -- The battle to fill a vacant U.S. Supreme Court seat comes at a moment of social reckoning, in the aftermath of the #MeToo movement and amid protests targeting entrenched racial inequalities in the criminal-justice system.
Since the death last week of Justice Ruth Bader Ginsburg, who rose to prominence by fighting for gender equality, President Donald Trump has winnowed his short list of potential replacements to two appeals court judges: Amy Coney Barrett on the Seventh Circuit in Chicago and Barbara Lagoa on the 11th Circuit in Atlanta. Both are backed by prominent conservative legal groups and both have weighed in before on some of the most divisive racial and gender issues in the U.S., from abortion to voting rights.
Over the past decade, the Supreme Court has made several sweeping rulings on social equality issues in 5-4 votes, including it landmark decision approving gay marriage in 2015. Last term, the court held in a 6-3 decision that discrimination on the basis of sexual orientation or transgender status constitutes unlawful sex discrimination in the workplace.
“In recent years, the court did somewhat keep up with racial and gender trends in the nation,” said Charles Tiefer, a constitutional law expert at the University of Baltimore.
The major exception was the court’s 2013 ruling removing a crucial provision of the Voting Rights Act. A court with six conservative justices would likely deliver more decisions in that vein, Tiefer said.
There’s already a high-profile equality issue on the calendar for the court’s next session, which begins Oct. 1. A dispute over gay rights and foster care could have broad implications for anti-discrimination protections: The justices will consider Philadelphia’s decision to exclude a Catholic agency from the city’s foster care system because it refused to work with same-sex couples.
More blockbuster cases could hit the Supreme Court’s docket as the term progresses, including challenges to the scope of anti-discrimination protections in education, health care and federally-funded programs.
Here is how Trump’s front-runners for the Supreme Court nomination have ruled on racial and gender issues:
Amy Coney Barrett
Barrett is staunchly opposed to abortion, and social conservatives hope that she will vote to overturn Roe v. Wade, the 1973 Supreme Court decision that established a legal right to an abortion in the U.S.
In a 1998 law review article that she co-authored, Barrett, a religious Catholic, wrote that abortion “is always immoral.” And in three years on the Chicago appeals court, Barrett has dissented twice when the court blocked state restrictions on abortion.
“She is a career woman and a family woman,” said Steven Aden, chief legal officer for the anti-abortion group Americans United for Life. “She would regard Roe as Exhibit A of rampant judicial activism.”
Despite her opposition to abortion, however, it’s not clear that Barrett would reverse the law, legal experts say. In a 2013 speech at the University of Notre Dame, she said it was “very unlikely” the Supreme Court would overturn the decision.
“The fundamental element, that the woman has a right to choose abortion, will probably stand,” she said, according to an account of her remarks in the student newspaper. “The controversy right now is about funding. It’s a question of whether abortions will be publicly or privately funded.”
Barrett has said much less about racial issues. But Democratic activists have criticized a dissent she wrote in June that would have upheld the Trump administration’s “public charge rule,” which denied immigrants legal-resident status if they rely on any form of public assistance like food stamps or Medicaid.
Christopher Kang, a founder of the left-wing judicial advocacy group Demand Justice, called the rule a “wealth test for immigrants.”
“If you think about racial justice and also about immigrant rights and what the Trump administration has done to immigrants over the last four years -- it’s a very striking decision,” Kang said.
Like Barrett, Lagoa is Catholic, but Lagoa’s position on abortion is less clearly established. During her Senate confirmation process in 2019, she didn’t discuss her personal views on the issue and said that as a lower-court judge she would honor Roe v. Wade and the court’s rulings on LGBT rights. She was confirmed in an 80-15 vote.
Democrats scrutinizing her judicial record have focused more on her role in a recent decision by the 11th Circuit upholding a Florida law that requires convicted felons to pay fees owed to the state before they are allowed to vote.
“She upheld what is essentially a modern-day poll tax that’ll have a direct impact on African-Americans,” said Kang, the Demand Justice co-founder. “It’s sort of jarring to put forward a nominee with that track record in this moment of seeking racial justice and equality.”
But during her appeals-court confirmation in the Senate, Lagoa, who is Cuban-American, seemed attentive to disparities in the criminal justice system, saying she recognized the evidence of racial inequality.
“It is my understanding that racial minorities are statistically more likely to be incarcerated than whites and that racial minorities comprise a greater percentage of the incarcerated population than they do of the overall population,” she wrote in a response included among 75 pages of answers to senators’ questions.
She was more expansive in her discussion of the landmark Brown v. Board of Education decision, which ordered in 1954 the end to legal segregation in U.S. schools. The Brown ruling “corrected a grave racial injustice,” she said in her written response.
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