Severability, the Affordable Care Act, and the Supreme Court: The Oral Argument in California v. Texas

Earlier this week, the Supreme Court heard oral argument in California v. Texas, the latest attempt in the long-running effort by conservatives to strike down the entire Affordable Care Act.  The two hours of questioning suggest that the Supreme Court is unlikely to take this radical step.  Both Chief Justice Roberts and Justice Brett Kavanaugh—who together with the Court’s three more liberal Justices could form a majority—repeatedly stated that it would be inappropriate to strike down the statute as a whole.  No other Justice offered any real rejoinder to their statements recognizing that the court’s role should be to salvage, not destroy, Congress’s handiwork.  A straightforward application of precedent, Chief Justice Roberts and Justice Kavanaugh stressed, points decisively in favor of saving the Affordable Care Act.  The Roberts Court is deeply conservative, but, at least for now, it seems unwilling to upend settled legal principles to strike down the ACA.

The linchpin of the latest attack on the Affordable Care Act is a radical revision of the doctrine of severability.   Severability is the legal principle that when a court finds a particular provision of a law unconstitutional, it should save, not destroy, the remainder of the statute.  The basic idea behind severability doctrine is that courts should not gratuitously invalidate constitutional parts of a law.  In California v. Texas, that is precisely what the plaintiffs are seeking.

Texas and the Trump administration are urging the Supreme Court to strike down every one of the ACA’s 974 pages because of one supposedly unconstitutional provision.  They claim the ACA’s individual mandate is unconstitutional because, in 2017, Congress reduced the tax payment for failing to comply with the individual mandate to zero and therefore, in their view, the mandate can no longer be justified as a tax.  Seeking to weaponize the doctrine of severability, they insist the proper remedy is to strike down the law in its entirety, even though Congress explicitly left the rest of the ACA in place when it zeroed out the tax payment.

Thankfully, this argument, which would turn severability on its head, got little traction from the Justices.  Even if a majority of the Court reaches the merits and wrongly concludes that an unenforceable individual mandate is unconstitutional, the rest of the ACA is likely to survive.

Justice Kavanaugh commented that “this is a very straightforward case for severability under our precedents meaning that we would excise the mandate and leave the rest of the act in place” in keeping with “our respect for Congress's legislative role under Article I.”   Chief Justice Roberts told Kyle Hawkins, the Texas Solicitor General, that “[i]t's hard for you to argue that Congress intended for the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act.”  The fact that “Congress left the rest of the law intact when it lowered the penalty to zero,” Chief Justice Roberts stressed, was “compelling evidence” that Congress did not want courts to throw the baby out with the bathwater.  Justice Kavanaugh added that the “record and text” reflected that Congress “wanted to preserve protection for coverage for people with preexisting conditions.”

Both Hawkins, as well as Acting Solicitor General Jeffrey Wall, who represented the Trump administration, responded that the entire ACA should fall because, in 2010, Congress made the finding that the individual mandate “is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.”  Wall called these findings the “functional equivalent of a targeted inseverability clause” supposedly directing courts to invalidate the whole statute if a single provision was invalid.  But, as both Chief Justice Roberts and Justice Kavanaugh stressed, these findings had nothing to do with severability.  Chief Justice Roberts told Hawkins that the finding in the ACA “doesn't look like any severability clause anywhere else in the rest of the U.S. Code.”  Justice Kavanaugh added that “Congress knows how to write an inseverability clause. And that is not the language that they chose here.”

The Court’s other conservative Justices offered little in the way of pushback.  None of the Court’s most conservative Justices offered any reason why the Court should reach out to invalidate the entire ACA.  Indeed, even Justice Samuel Alito, who voted to invalidate the entire ACA in National Federation of Independent Business v. Sebelius, observed that it did not appear that the individual mandate was integral to the rest of the ACA.  As he put it, in an airplane construction metaphor, “the part has been taken out and the plane has not crashed.”  The silence of the Court’s most conservative Justices underscored just how weak the plaintiffs’ case in California v. Texas is.

The severability question in California v. Texas is an easy one.  Fortunately, a majority of the justices seemed to recognize that.   The Supreme Court should, once again, reject the efforts of conservatives to strike down the ACA.

 

Legal Scholars on the Importance of Counting Every Vote

American history is replete with presidential elections that were not decided on Election Day. From the very first presidential election in 1788 through the 2016 election, having a sufficiently complete count of votes to confidently predict a winner on the same day that the polls close has been the exception, not the norm. That’s why all of us, who teach and write about constitutional law, election law, voting rights, and/or the rule of law, are signing this letter—reaffirming that it is deeply in line with, and not counter to, our finest traditions to count every vote, to take our time in doing so, and to not cast aspersions on the process simply because it is methodical.

It should go without saying, but under our constitutional system, presidential elections are really 51 different elections—where the voters of every state and the District of Columbia separately vote for a slate of presidential electors, who meet 41 days after Election Day as the “Electoral College” to officially vote for the President and Vice President. Since the nineteenth century, federal law has thereby deemed as conclusive any state certification of presidential election results that takes place within the first five weeks after Election Day—and every state except one (Delaware) waits at least a full week before officially declaring a victor.

Both historically and today, the reason for this cushion is entirely to ensure that the votes are properly counted—to provide local and state election officials with enough time to ensure that all lawful votes are tallied in the first place; to resolve any discrepancies that arise during the counting process; and, where necessary, to conduct a recount if the margin is sufficiently narrow. Media organizations report these results on an ongoing basis, leaving many with the misleading impression that a particular candidate may be “winning” or “losing” (or gaining or losing ground). But the reality is that the votes have already been cast by the time these reports come out; the media is reporting on the counting, and every state counts their votes in a different order. In some states, including some of the states on which this election appears to be hinging, the first votes received are actually counted last—thanks to state-law rules barring the “pre-canvassing” of such votes before Election Day. Perhaps Congress should consider the wisdom of enacting uniform federal laws to standardize pre-canvassing, mail-in ballot receipt deadlines, and other rules to make these results more easily predictable; that’s a conversation for another time.

For now, we say all of this in direct and concerted opposition to the repeated public statements of President Donald Trump, who has claimed that he “won” states that are still counting; that it is “very strange” that the totals are shifting against him in some states as more votes are counted; and that Democrats are trying to “steal” the election. These statements are false as a matter of both contemporary fact and historical practice; they are unbecoming of the office that, whatever the result of the election, the President continues to hold, and they risk undermining public confidence in the legitimacy of the ultimate result of the election—perhaps even provoking violence and civil disorder.

The President knows better. His advisors know better. His supporters in Congress know better. But most importantly, the American people know better—because we’ve seen, first-hand, how prior presidential elections have run. Simply put, there is no evidence that this election is anything other than one of the many in American history in which a number of states have been closely divided. We have every confidence in state election officials to finish counting all of our votes as best they know how—and we encourage all of our fellow citizens to wait until they have done so before jumping to conclusions.

Signatories as of November 9, 2020[*]

 

Stephen I. Vladeck

Charles Alan Wright Chair in Federal Courts, University of Texas at Austin School of Law

Matthew Adler

Professor of Law, Duke University School of Law

Sam Bagenstos

Frank G. Millard Professor of Law, University of Michigan Law School

Joseph Blocher

Lanty L. Smith '67 Professor of Law, Duke University School of Law

Erwin Chemerinsky

Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law

Alan Chen

Professor of Law, Denver University Sturm College of Law

Sarah Cleveland

Louis Henkin Professor of Human and Constitutional Rights, Columbia Law School

Wilfred Codrington III

Assistant Professor of Law, Brooklyn Law School

Michael Dorf

Robert S. Stevens Professor of Law, Cornell Law School

Joshua Douglas

Ashland, Inc.-Spears Distinguished Research Professor of Law, University of Kentucky J. David Rosenberg College of Law

Garrett Epps

Professor Emeritus, University of Baltimore School of Law

Bryan Fair

Professor, The University of Alabama

Joseph Fishkin

Marrs McLean Professor in Law, University of Texas at Austin School of Law

Luis Fuentes-Rohwer

Professor of Law and Class of 1950 Herman B. Wells Endowed Professor, Indiana University Maurer School of Law

Ruben Garcia

Professor of Law, UNLV Boyd School of Law

Kent Greenfield

Professor of Law and Dean’s Distinguished Scholar, Boston College Law School

Heidi Kitrosser

Robins Kaplan Professor of Law, University of Minnesota Law School

Harold Hongju Koh

Sterling Professor of International Law, Yale Law School

Steven Koh

Marianne D. Short and Ray Skowyra Sesquicentennial Assistant Professor of Law, Boston College Law School

Margaret Lemos

Robert G. Seaks LL.B. '34 Professor of Law, Duke University School of Law

Lawrence Lessig

Roy L. Furman Professor of Law and Leadership, Harvard Law School

Justin Levitt

Professor of Law, Loyola Law School

Marin Levy

Professor of Law, Duke University School of Law

Leah Litman

Assistant Professor of Law, University of Michigan Law School

Darrell Miller

Professor of Law, Duke University School of Law

Victoria Nourse

Ralph Whitworth Professor of Law, Georgetown University

Richard Painter

  1. Walter Richey Professor of Corporate Law, University of Minnesota School of Law

William Rich

Professor Emeritus, Washburn University School of Law

Kermit Roosevelt

Professor of Law, University of Pennsylvania Law School

Chris Seaman

Associate Professor of Law and Director, Frances Lewis Law Center, at Washington and Lee University.

Bryan Sells

Adjunct Professor of Law, Georgia State University College of Law

Peter Shane

Jacob E. Davis & Jacob E. Davis II Chair in Law, Ohio State University Moritz College of Law

Jed Shugerman

Professor of Law, Fordham Law School

Neil Siegel

David W. Ichel Professor of Law and Professor of Political Science, Duke University Law School

David Strauss

Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School

Ciara Torres-Spelliscy

Professor of Law, Stetson University College of Law

Laurence Tribe

Carl M. Loeb University Professor Emeritus, Harvard Law School

[*] Affiliations provided for identification purposes only. All signatories represent their views as individuals and do not sign on behalf of any law school or organization.

An American History of Separating Families

On Thursday, the U.S. House of Representatives Committee on the Judiciary released a report with a title that pulls no punches: “The Trump Administration’s Family Separation Policy: Trauma, Destruction, and Chaos.” It opens with the righteous statement that “these preventable tragedies must not be forgotten.” The Committee’s indignation is justified, but what is missing is historical context. The separation of Central American families carried out by the Trump Administration is just the latest version of cruel family separation practices rooted in America’s soil.

The report is a product of a 21-month investigation that, in the Committee’s own words, “revealed a process marked by reckless incompetence and intentional cruelty.”  The Administration formally executed the “zero tolerance” family separation policy between April and June 2018.  However, the report details that the executive branch began sowing the policy’s seeds weeks after inauguration, in mid-February 2017, and the actual separation of families began before the President’s announcement.  In fact, it reveals that the U.S. Department of Health and Human Services (HHS) reported that by April 2018–the same month the President publicly revealed zero tolerance–the government already had separated “at least 856 children” from their parents, of which “twenty-six percent were under the age of five.”

The report also details how government officials when they first started separating families acknowledged that there was no way to link children with their parents, but did nothing to rectify this.  Last week, we learned that the government has yet to find the parents of 545 migrant children.  The HHS Office of Inspector General estimated that in total, the U.S. government separated nearly 2,800 children.  The Young Center for Immigrant Children’s Rights issued a report this summer on the Administration’s ongoing practices that separate migrant children from their parents.

The law clinic I direct represents two of these thousands of separated families.  In both cases, U.S. immigration officials separated the parents from their children, who at the time were under the age of eight, soon after the families crossed the border. Officials ripped both children from their parents’ arms, put them on planes, and held them in shelters thousands of miles away.  The government deported their parents within a week of their arrivals.  Both parents then spent agonizing weeks in their home countries trying to get information on the children’s whereabouts. After about six months, the U.S. government finally returned the children to their parents.

Even as someone who for almost two decades has witnessed egregious harms inflicted on non-citizens by the U.S. government, I found myself particularly affected by the cruelty my clients had suffered. I initially was unable to answer my students’ question of how the U.S. government can engage in such cruelty, until together we realized that family separation is embedded in American history. It was a practice tied to our inhumane founding, to force a fantasized notion of America by solving the so-called “Indian problem.”  Part of this solution was separating Indigenous children from their families, first by placing them in boarding schools and later by promoting and facilitating their adoption by non-Indigenous families. A 1978 U.S. House of Representatives report cited that the government separated approximately twenty-five to thirty-five percent of Indigenous children from their families.

There was also the separation of enslaved families and kidnapped freed African Americans, about which Ta’Nehisi Coates says, “Here we find the roots of American wealth and democracy – in the for-profit destruction of the most important asset available to any people, the family. The destruction was not incidental to America’s rise; it facilitated that rise.” Local governments and private organizations removed Polish and Irish immigrant children from the mid-19th through early 20th century, the majority of whom were Catholic, through a movement called “orphan trains.”  Most of 150,000 to 200,000 children were not orphans, and were placed with Protestant and Anglo-American families. Although family separation arguably is not explicitly the objective of U.S. mass incarceration and mass deportation policies, it certainly has been their outcome.

Imagine if the House Committee report placed the Trump Administration’s family separation practices in the context of the separation of vulnerable, mostly Black and Brown, families as deeply rooted in American history. Some might say that doing so would dilute its critical force.  I offer that providing historical context would force us to think more broadly about systemic oppression, creating spaces for change that could be more meaningful to communities in the U.S. most vulnerable to state sponsored violence and harm.

Anita Sinha is an Associate Professor of Law and Director of the International Human Rights Law Clinic at American University, Washington College of Law

Supreme Court Recusal

Recusal – the act of a specific judge or justice being removed from a specific case, typically for ethical reasons – is as old as courts themselves. It reflects a concern about self-interested judging that is at odds with the impartial, independent judiciary envisioned by our Constitution and, to that end, serves two general purposes. The first is to protect individual litigants from biased judges. Our judicial system cannot function if litigants lack a fair opportunity to present their cases to an open-minded arbiter. The second is to protect the integrity of the judiciary, which is necessary to maintain public confidence in our judicial institutions and actors.

Supreme Court recusal is important to the confirmation process for at least three reasons. First, because Supreme Court justices’ recusal decisions are unreviewable and very rarely explained, the confirmation process may be the best opportunity for public vetting of a justice’s views on recusal. It is perhaps the only chance for public inquiry into how the prospective justice envisions balancing the institutional cost of recusal, discussed below, against the benefits of protecting the integrity of the Court from real or perceived bias. Second, a prospective justice may invoke future recusal problems as a reason not to answer a question at their hearing. Third, and relatedly, because Supreme Court justices rarely, if ever, publicly answer questions about their personal views on the law or judging (let alone under oath), confirmation hearings are among the very few instances where a justice may publicly take a position that could be grounds for recusal in a future case or cases.

The justices’ autonomy over recusal is reflected in practice. Notwithstanding their wide discretion in deciding whether to recuse, recusal is not uncommon at the Court. Stock ownership is among the most common grounds for recusal but is far from the only one. Justice Breyer has recused himself from multiple petitions in cases that involved his brother, a senior district judge in California. Justice Kagan recused herself from the controversial affirmative action case Fisher v. University of Texas, almost certainly because she had worked on the case while Solicitor General. In the October 2018 Term, Justice Kavanaugh recused from several cases he participated in while a judge on the appeals court, as well as Gundy v. United States, a constitutional challenge to Congress’s authority to delegate power to administrative agencies, because he joined the Court after oral argument. This past term, Justice Sotomayor recused herself from a “faithless elector” case, Colorado Department of State v. Baca, because of her friendship with one of the parties.

Whereas the justices are regularly confronted with recusal issues, they are not required to, and hardly ever, explain their recusal decisions. Moreover, when the justices do publicly explain their views on recusal, they reveal a range of concerns that are beyond the statutory requirements set by Congress. These concerns are driven by the fact that, unlike lower court judges, a recused justice may not be substituted for, leaving the Court with at least one fewer member in that case. Recusal’s effect on the physical makeup of the Court raises the possibility of a tie vote that could prevent the Court from issuing a precedential decision on an issue of national importance, or, in instances of multiple recusals, a lack of quorum that would prevent the Court from deciding the case at all. Chief Justice Roberts confirmed the justices’ views on recusal in his 2011 Year-End Report on the Federal Judiciary when he explained that, “if a Justice withdraws from a case, the Court must sit without its full membership. A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy.” Similar concerns have been expressed by justices in their congressional testimony, public statements on recusal, and individual memoranda explaining specific decisions not to recuse.

Understanding recusal in this way reveals much that is relevant to the confirmation process. A nominee’s hearing is an opportunity to discover (and potentially commit them to) their views on how recusal should be employed at the Court. In particular, how the Court’s obligation to resolve important legal questions should be balanced against perceived challenges to its integrity and legitimacy. As the Court becomes more politicized, concerns about the justices’ political affiliations or connections may diminish public confidence in the Court’s ability to remain independent. The recusal statute’s requirement that justices be removed from cases in which their impartiality might reasonably be questioned may be read more broadly as the political environment in the nation—and the Courts’ perceived place in it—becomes more contentious.

Nowhere is this more evident than in the controversy surrounding Judge Amy Coney Barrett’s confirmation to the Court just days before a presidential election. Within hours of Justice Ruth Bader Ginsburg’s death on September 18, Senate majority leader Mitch McConnell, the person in charge of the confirmation process, announced that “President Trump’s nominee will receive a vote on the floor of the United States Senate.” This is directly contrary to his position in 2016, when President Obama nominated Chief Judge Merrick Garland to fill the late Justice Antonin Scalia’s seat on the Court 237 days before the election. At that time, McConnell announced that the Senate would refuse to consider any of the president’s nominees to the Court until after the election because the Senate should "give the people a voice in the filling of this vacancy."

Senator Lindsey Graham, the chair of the Judiciary Committee and the second-most powerful person in the confirmation process, followed Senator McConnell’s lead despite having promised in 2016 that: "If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say, ‘Lindsey Graham said let's let the next president, whoever it might be, make that nomination.’” What’s more, Senator Graham expressed confidence that Republicans would confirm a new justice before the election prior to knowing who the president would nominate. This abrupt shift by both Republican leaders reveals the inherent partisanship and opportunism in their decision, and draws into question the integrity of the entire confirmation process.

But simply filling the seat before the voters weigh in is only one example of the hyper-politicization of Judge Barrett’s nomination. President Trump also made clear that installing his nominee on the Court before the election is important to the outcome of the election itself. He explained he thinks the election “will end up in the Supreme Court and I think it’s very important that we have nine justices, and I think the system’s going to go very quickly.” He also directly connected Judge Barrett’s confirmation to a central issue of his campaign by tweeting that his judicial nominees, including Judge Barrett, “will do the right thing unlike Bush’s appointee John Roberts” and vote to overturn the Affordable Care Act in a case scheduled a few days after the election; just in time for Judge Barrett to join the Court.

The hypocrisy of McConnell and Graham, and the explicit connection of Judge Barrett’s nomination to President Trump’s campaign platform and the election cast a shadow on the Court’s integrity and independence. More urgently, they cast a shadow over Judge Barrett’s potential participation in cases involving the 2020 election that requires her recusal from such cases. As we learned from Bush v. Gore, the public is inherently skeptical about the Court’s involvement in a presidential election, especially one that appears to be decided along party lines. This skepticism contributes to the conclusion that a reasonable observer could question Judge Barrett’s participation in a case involving the election and further supports her recusal.

Finally, although the threat of a tie vote due to Justice Barret’s recusal is an important consideration, it should not overcome her need to recuse. Whereas a 4-4 decision would be a terrible outcome in a case effectively deciding a national election, leaving the Court with an even number of justices may also be a blessing, as it could force the eight sitting justices to seek (and find) greater consensus. The Court has been inspired to pursue unanimity in other landmark decisions; what better place to rise above partisan and ideological divides than in a case about preserving our democratic process.

In recusing herself from any election disputes, Justice Barrett would be practicing the lessons of 2000 by protecting the Court’s legitimacy and incentivizing her eight remaining colleagues to find common ground on an issue of the greatest national importance.

Judge Barrett’s Originalism: Conservative Politics All the Way Down

About the only thing of interest, if one can call it that, Judge Amy Coney Barrett revealed during her confirmation hearings was that she is an “originalist.” That label, however, is utterly meaningless as a descriptor of constitutional interpretation but it does accurately suggest Barrett will vote conservative most of the time regardless of whether constitutional text or history supports her suggested results. History and common sense both show that there are conservative judges, moderate judges, and liberal judges, but there are no originalist judges. Our political dialogue would be much improved by removing this pernicious term from our societal debates about the proper role of the United States Supreme Court.

In the 1970s and 1980s, originalists were almost universally opposed to judges overturning state and federal law absent a clear inconsistency with constitutional text. This call for judicial deference by people like Judge Robert Bork and Professor Raoul Berger was a conservative political reaction to liberal Warren Court decisions such as Roe v. Wade and Miranda v. Arizona. The key component of this theory was judicial restraint.

After twelve years of conservative judges appointed by Ronald Reagan and George H.W. Bush, however, the originalist calls for judicial deference transitioned in the 1990s to strained justifications for aggressive originalist judicial review of state and federal laws. In other words, originalism became a sword for justices and academics to use to urge more judicial review, not less, almost always in the pursuit of conservative constitutional decisions. Judges resorted to discussions of constitutional history only when doing so supported the results they desired on other grounds.

Judge Barrett’s alleged originalism, like the faux originalism of her mentor Justice Scalia, has nothing to do with deferring to legislative majorities and everything to do with reaching conservative political results. Over the course of his career, Justice Scalia voted to overturn over 100 state and federal laws on such hot button issues as affirmative action, campaign finance reform, myriads of contested free speech issues, voting rights, and the proper balance between the state and federal governments almost always without any persuasive originalist justification. Although Scalia off the bench and in dissents talked the talk of originalism, when he voted, he walked the walk of aggressive living constitutionalism.

Judge Barrett, following in her mentor’s footsteps, has already voted in dissent to strike down a Wisconsin law on the books since 1981 barring all  those convicted of felonies from owning guns unless the state can prove the individual is a risk for violence, This decision was not based on text, history, or precedent but Judge Barrett’s conservative values. Expect more of the same on issues of abortion, federalism, voting rights, and affirmative action when she becomes a Justice.

Truly originalist judges, to be sincere and honest, would have to adopt a strong deferential stance towards state and federal laws because that was the original understanding of the power of judicial review. In Federalist No. 78, written by Alexander Hamilton, he argued that judges should only overturn laws absent an “irreconcilable variance” between a law and the Constitution. Nationally acclaimed historians such as Jack Rakove and Sylvia Snowiss have reviewed the founding period and concluded that the people at the time expected judges to overturn laws only where they were obviously and clearly unconstitutional. In other words, judicial review was supposed to be limited, modest, and used sparingly.

The original Originalists, like Judge Bork, understood this history and preached judicial restraint as a way to cure what they saw as the excesses of the Warren Court. But the Supreme Court is a political institution that makes political decisions. Once the Court was staffed with conservatives who wanted to limit voting rights, assist big business, and allow for unlimited money in political campaigns, among other important issues, all of a sudden judicial restraint became a thing of the past and originalism was either ignored or distorted in the service of the Court issuing mostly conservative decisions (overturning same-sex marriage bans, prayers at high school events, and on rare occasions abortion laws were exceptions proving the rule).

Judge Barrett knows or at least should know that in the hard cases that reach the United States Supreme Court, the text and history in question will point in many different directions or often in no helpful direction. Constitutional phrases like equal protection of the laws, due process of law, freedom of speech, establishment of religion, and cruel and unusual punishments have no fixed meaning and contested histories. Judges have to go well beyond text and history to apply those flexible aspirations to modern problems unless they adopt a strong posture of judicial restraint.

Additionally, today’s originalists, unlike those of the 1980s, admit that the applications of the text change as society changes. What all of this means is that the Justices will, as they always have, vote their preferences. The only form of originalism that can change that is one that comes with strong judicial deference, not the current version which allows judges to pick and choose which historical facts, if any, support their desire to reach conservative political results. Unfortunately, calls for judicial restraint, whether from the left or the right, are rarely heeded by Supreme Court justices who have life tenure and largely unreviewable power.

Judge Barrett’s alleged commitment to originalism, like her mentor’s, is an empty promise devoid of constraining effect. Today, originalist judges and justices are just conservative judges and justices, nothing less and nothing more. The American people should not be fooled by her empty nods towards originalism as a theory of constitutional interpretation. Her brand of originalism, like those of most modern judges, is just conservative living constitutionalism in disguise.

Eric Segall is the author of Originalism as Faith (Cambridge 2018).

Abortion Access for Low-Income People is at Stake in the Amy Coney Barrett Nomination

The nomination of Judge Amy Coney Barrett threatens to radicalize the Supreme Court. Barrett’s record demonstrates that she is fundamentally hostile to reproductive rights, and within her judicial philosophy, she discounts the consequences and burdens of the judiciary’s decision-making in people’s lives.

However, her approach is in conflict with current Supreme Court precedent, which has considered exactly these kinds of real-world burdens with respect to laws impinging upon reproductive rights. While low-income Americans often struggle to access reproductive health care, the Court in last term’s June Medical Services v. Russo (2020) reaffirmed earlier holdings in Planned Parenthood v. Casey (1992) and Whole Woman’s Health v. Hellerstedt (2016) that constitutional review of state abortion restrictions must take into account the burdens they impose on the least advantaged.

In Casey, the Supreme Court held that a state unlawfully impedes upon the constitutional right to access abortion if it creates an “undue burden” on the right. The Court factored in real-world circumstances facing people seeking abortion when it invalidated Pennsylvania’s requirement that a woman notify her spouse of her intention to have an abortion, recognizing that compliance would be especially burdensome for those in abusive relationships. The Court wrote that “we must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.”

The Supreme Court’s decision in Whole Woman’s Health reaffirmed the importance of considering real-world circumstances when applying the undue burden standard. In assessing the burdens imposed by two Texas TRAP (“targeted regulation of abortion providers”) laws, the Court credited the district court’s finding that each requirement created “a particularly high barrier for poor, rural, or disadvantaged women,” highlighting increased travel as just one example.

Following these Supreme Court decisions, lower courts evaluating the constitutionality of abortion restrictions have consistently factored in burdens attendant to economic hardship. These included the socioeconomic makeup of patients seeking abortions, travel time to clinics, transportation costs, hotel costs, lost wages from time off from work, childcare costs, and time and resources spent borrowing or raising the necessary funds for all of the above.

One of these cases, known as June Medical Services v. Gee (later June Medical Services v. Russo), involved a challenge to a Louisiana TRAP law identical to one of the Texas requirements invalidated in Whole Woman’s Health. While blocking the Louisiana law, the district court made extensive findings that the resulting clinic closures would disproportionately burden low-income people. For instance, the court found that those seeking abortion are disproportionately poor: 42% of women having abortions nationally live at or below the poverty line, and “another 27% ha[ve] incomes at or below 200% of the poverty line.” The court also found that the burdens of the law – from longer wait times to delays in care – “would have the effect [of] increasing health risks among the State’s poorer women.”

After the Fifth Circuit reversed the district court’s decision, the Supreme Court agreed to hear the case. In its decision last term in June Medical Services, the Court invalidated the law as an undue burden on the right to abortion. Five Justices – a plurality of Justices Breyer, Ginsburg, Sotomayor, and Kagan, plus Chief Justice Roberts in concurrence – reaffirmed the holdings from Casey and Whole Woman’s Health that real-world circumstances, including harms amplified by poverty, are relevant under the undue burden standard.

The plurality closely evaluated the real-world impacts of Act 620. It explained that “the reduction in abortion providers caused by Act 620 would inevitably mean ‘longer waiting times and increased crowding’” and that “even if they obtain an appointment at a clinic, women who might previously have gone to a clinic in Baton Rouge or Shreveport would face increased driving distances.” Moreover, the plurality explained that “the impact of these increases would be magnified by Louisiana’s requirement that every woman undergo an ultrasound and receive mandatory counseling at least twenty-four hours before an abortion,” and that this impact would be even greater under the admitting privileges law, as “a Shreveport resident seeking an abortion who might previously have obtained care at one of that city’s local clinics would either have to spend nearly twenty hours driving back and forth to Doe 5’s clinic twice, or else find overnight lodging in New Orleans.” The plurality recognized that “the burdens of this increased travel would fall disproportionately on poor women, who are least able to absorb them.”

Chief Justice Roberts, providing the fifth vote to strike down the law, also acknowledged the significance of these real-world impacts. He credited the district court’s finding that the law “would result in longer wait times for appointments, increased crowding, and increased associated health risk.” And he recognized that people in Louisiana seeking abortion already “have difficulty affording or arranging for transportation and childcare on the days of their clinic visits,” and that the “increased travel distance” due to clinics closures would only serve to “exacerbate this difficulty.” He also observed that “the law would be particularly burdensome for women living in northern Louisiana…who once could access a clinic in their own area and will now have to travel approximately 320 miles to New Orleans.”

In the wake of June Medical Services, there is now broad, reaffirmed precedent from the Supreme Court that the burdens falling most heavily on low-income people seeking abortion matter under the Constitution. The Court’s membership is now undergoing a transformation. If confirmed to the Supreme Court, Judge Barrett must set aside her own unforgiving judicial philosophy and pay the respect of stare decisis to precedent giving constitutional meaning to the lived experiences of marginalized people seeking to exercise their fundamental rights.