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The heir to Scalia: How Amy Coney Barrett could tip the balance of the Supreme Court

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Although Amy Coney Barrett is President Trump‘s choice to replace Justice Ruth Bader Ginsburg, she is more aptly described as heir to another departed Supreme Court justice – conservative hero Antonin Scalia.

Barrett, who was formally nominated to the nation’s highest court during a ceremony in the White House Rose Garden on Saturday evening, was once a clerk for Scalia and she could soon could tip the balance of the court on Obamacare, gun rights, immigration and abortion as she ‘applies the law as written’ –  just like her mentor. 

Like Scalia, Barrett is a firm devotee of an interpretation of the Constitution known as ‘originalism’.

‘Originalism’ is a concept that involves justices endeavoring to decipher the Constitution as the authors had written and intended it at the time in order to assess whether someone’s rights have been violated. 

Many liberals say that approach is too rigid and doesn’t allow the Constitution’s consequences to adjust to vastly changing times. 

More liberal-minded justices prefer an interpretation known as the ‘living Constitution approach’ in which they will apply the text to fit a more contemporary context.  

Amy Coney Barrett, who was nominated to the Supreme Court on Saturday evening, was once a clerk for conservative Justice Antonin Scalia and she could soon could tip the balance of the court on Obamacare, gun rights, immigration and abortion

Taking to the podium after being introduced by the President, Barrett referenced Scalia, and said she shared his commitment to interpreting the original meaning of the Constitution. 

‘His judicial philosophy is mine, too. A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold,’ she stated.  

Barrett clerked for Scalia from 1998 -1999 after graduating from the University of Notre Dame Law School at the top of her class. 

During her time at Scalia’s office, she gained a reputation as as bright and adept at picking apart poorly reasoned arguments. 

Ara Lovitt, who clerked with her at the time, recalled that Scalia had high praise for Barrett. 

‘Isnt Amy great?’ Lovitt remembers Scalia saying.

In her speech on Saturday, Barrett referenced her time working with Scalia. Scalia’s widow, Maureen, attended the nomination ceremony and was in the audience at the time. 

‘I was lucky enough to clerk for Justice Scalia. And given his incalculable influence on my life, I am very moved to have members of the Scalia family here today, including his dear wife, Maureen, ‘ she stated. 

‘I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate.’

Scalia is pictured in 2012 with his wife, Maureen. Maureen was in the audience watching as Barrett was nominated to the Supreme Court

Barrett’s record now includes around 100 opinions and dissents. In a majority of decisions, her interpretation of the Constitution has led her to an opinion that often jibes with conservative policies and outlooks

Barrett was nominated by Trump to the Seventh Circuit Court of Appeals in 2017, and in the past three years she has often illustrated Scalia’s influence by delving deep into historical minutiae to glean the meaning of original texts. 

A 2019 dissent in a gun-rights case argued a person convicted of a nonviolent felony shouldn’t be automatically barred from owning a gun. All but a few pages of her 37-page dissent were devoted to the history of gun rules for convicted criminals in the 18th and 19th centuries. 

Barrett’s record now includes around 100 opinions and dissents. In a majority of decisions, her interpretation of the Constitution has led her to an opinion that jibes more with conservative policies and outlooks. 

In the 2019 gun-rights case, she stated: ‘History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns… but that power extends only to people who are dangerous.

According to Fox News, Barrett has ‘for the most part [also] sided with the Trump administration on immigration cases.’

For instance, in one decision Barrett agreed with the State Department in its decision to deny a visa to the wife of an American citizen who tried to smuggle children into the country.

Barrett was nominated by Trump to the Seventh Circuit Court of Appeals by Trump in 2017, and in the past three years she has often illustrated Scalia’s influence by delving deep into historical minutiae to glean the meaning of original texts

Meanwhile, many liberals fear that Barrett’s originalist interpretations will lead her to declare that the Affordable Care Act [ACA] is unconstitutional. 

If she is confirmed to the Supreme Court,  Barrett could be a deciding vote in repealing the ACA, otherwise known as Obamacare, when the case is heard by the Justices in November. 

Barrett has been deeply critical of the Supreme Court’s 2017 decision to uphold the ACA, arguing that it ‘distorted’ the original intention of the Constitution. 

‘Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,’ she wrote in an academic text.  

‘For Justice Scalia and those who share his commitment to uphold text, the measure of a court is its fairminded application of the rule of law, which means going where the law leads. By this measure, it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result,’ she added. 

If Barrett is confirmed to the Court before November, there will be a 6-3 conservative majority and the ACA could be repealed – leaving up to 20 million people without health insurance. 

Barrett is pictured speaking after her nomination to the Supreme Court on Saturday

Meanwhile, others fear that Barrett may also overturn Roe V. Wade, handing abortion rights back to the states. 

Like Scalia, Barrett is a devout Catholic who holds a personal pro-life view. She has seven children, whilst Scalia had nine. 

However, she says she does not let her faith interfere with her judicial decisions. 

‘It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else on the law,’ Barrett stated in 2017. 

She has also stated that she does not believe Roe V. Wade will be repealed. 

‘If the Court’s opinions change with its membership, public confidence in the Court as an institution might decline. Its members might be seen as partisan rather than impartial and case law as fueled by power rather than reason,’ Barrett once wrote in the Texas Law Review. 

But according to The New York Times there may still be reason for pro-choice people be st alarmed. 

‘Justice Scalia wrote that the Constitution has nothing to say about abortion and that states should be allowed to decide the question for themselves. There is no reason to believe Judge Barrett disagrees,’ one journalist wrote. 

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