Upon learning of Ruth Bader Ginsburg’s passing on Sept. 18, U.S. Supreme Court Chief Justice John Roberts lamented the loss of “a cherished colleague.”
Just eight days later, Roberts and his fellow Justices learned who is likely to be their next colleague on the highest court in the land.
With President Donald Trump making the nomination official Sept. 26, and with the necessary Senate votes seemingly secured, Amy Coney Barrett is all but certain to take over the seat that Ginsburg held on the Supreme Court since 1993.
And, when and if she is appointed, the constitutional originalist and former clerk for Justice Antonin Scalia will cement a 6-3 conservative majority on the court, which many expect to move further to the right with Barrett’s addition.
NPR, for example, has called her a “dream candidate” for conservatives, and a “nightmare” for those on the left side of the aisle.
This perception is based largely on Barrett’s views on broader issues like women’s reproductive rights (she’s anti-abortion) and gun control (the National Rifle Association has issued a statement applauding Barrett’s nomination and urging the U.S. Senate to “act swiftly” to confirm her).
So, what would Barrett’s confirmation mean for employers and the workplace?
Early indications are that “employers will probably fare very well in front of Barrett, should her nomination be confirmed by the Senate.”
That’s according to labor and employment law firm Fisher & Phillips, which offers a solid summary of Barrett’s record in employment law cases.
For example, “employers can most likely count on Judge Barrett to take their interests into consideration when it comes to retaliation lawsuits,” notes Fisher & Phillips, adding that Barrett has “consistently found in favor of the defense of such claims.”
Fisher & Phillips also predicts that Barrett will broaden religious-based protections for employers, citing a 2012 “statement of protest” in which she condemned the Obama administration’s creation of an accommodation for religious employers that were subject to the Affordable Care Act’s birth control mandate.
For that matter, the Affordable Care Act might be at risk of being struck down in its entirety, depending on who you ask. And employers should certainly have an interest in the ACA’s fate.
In a speech he delivered in his home state of Delaware on Sept. 27, Democratic presidential candidate Joe Biden described Barrett’s nomination — and Trump’s push to get her confirmed before the Nov. 3 general election — as his latest attempt to dismantle the ACA.
“It’s no mystery about what’s happening here,” Biden said. “President Trump was trying to throw out the Affordable Care Act. He’s been trying to do it for the last four years. The Republican Party has been trying to eliminate it for a decade. Twice already, the Supreme Court has upheld that law.”
As Biden pointed out, the Supreme Court has twice turned back challenges to the Affordable Care Act’s constitutionality. But oral arguments will begin on Nov. 10 — one week after election day — in a case that could see the Court undo all or parts of the ACA. Naturally, Barrett would be on the bench for that case if the Senate wrapped up the confirmation process prior to the election.
“This is about your health care. This is about whether or not the ACA will exist,” continued Biden in his Sept. 27 speech. “This is about whether or not pre-existing 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.”
Others, however, have described Coney Barrett as “no threat to Obamacare,” and say that the perceptions that confirming Barrett “would spell doom for the Affordable Care Act” aren’t rooted in reality.
Deirdre Macbeth, content director, regulatory, at WorldatWork, simply expects Barrett to take the same view of the law that she’s taken throughout her career as a judge, whether it’s in regard to the Affordable Care Act or any other case.
“In essence, Judge Barrett favors textualism, which believes the role of the judge is to interpret the text as written by the lawmaker and not to construe legislative intent from that text,” said Macbeth.
“Her perspective on the ACA is that the Court construed legislative intent beyond what was written in the text in order to find it constitutional. So, if her nomination is confirmed, I would expect her to stay true to her textualist legal approach for any case she reviews.”
About the Author
Mark McGraw is the managing editor of Workspan.