The Senate voted 52-48 Monday to confirm Amy Coney Barrett to the U.S. Supreme Court, giving the court a 6-3 conservative majority that could determine the future of the Affordable Care Act and abortion rights.
All Democrats in the chamber voted against Barrett’s confirmation, as did Republican Susan Collins of Maine, who agreed with Democratic objections to confirming a justice so close to the Nov. 3 election.
President Donald Trump and his GOP allies in the Senate pushed for a quick confirmation of Barrett, and it came just 38 days after the death of Justice Ruth Bader Ginsburg, who for 27 years anchored the court’s liberal wing. Trump had said he wanted his replacement for Ginsburg in place to avoid a deadlocked court should the outcome of the presidential election depend on a ruling, as was the case in 2000.
A White House swearing-in ceremony for Barrett is being planned for Monday evening with Justice Clarence Thomas set to administer the oath of office.
The highly partisan vote on the confirmation mirrors the divisions in the country leading up to the election and on some of the issues that will be before the high court in the near future. Those issues include the validity of the Affordable Care Act and the status of the 1973 Roe v. Wade ruling that legalized abortion rights nationwide, as well as voting and civil rights.
The court is scheduled to hear arguments on the ACA, the law known as Obamacare, a week after the election. The Trump administration is urging the court to declare the law invalid, including its protections for people with pre-existing conditions.
The Mississippi attorney general, meanwhile, has pitched the court to take up her state’s ban on abortions after 15 weeks in a case that could sharply limit Roe and for the first time let states outlaw the procedure before a fetus becomes viable.
Trump has said he wants the justices he’s selected for the court — there are now three of them — to invalidate Obamacare and overturn Roe v. Wade.
The court is already addressing pre-election skirmishes over the rules for casting and counting ballots in the contest between Trump and Democrat Joe Biden.
Just last week, the court deadlocked 4-4 on how many days Pennsylvania could wait after Election Day for mail-in votes to arrive, leaving in force a three-day extension for the receipt of absentee ballots in the pivotal state. Barrett could provide the fifth vote to overturn any state court ruling that expands voting, or otherwise favors Democrats.
The court also is scheduled to hear arguments Nov. 30 on Trump’s attempt to exclude undocumented immigrants from the 2020 census, a case that could determine the allocation of House seats and federal dollars.
Barrett, 48, has served on the 7th Circuit Court of Appeals since 2017 and taught at Notre Dame Law School. In three days of testimony during her confirmation hearings, Barrett stressed she would be independent, while asserting she had no agenda but to follow the Constitution and the law. She deflected questions on how she might rule on issues such as abortion, despite having the clearest anti-abortion record of any nominee in decades.
Barrett’s nomination so close to the election and the rapid confirmation process drew an angry response from Democrats, who pointed to the refusal of Senate Republicans to even give a hearing to President Barack Obama’s nominee, Merrick Garland, to fill a vacancy that arose in February 2016 because it was an election year.
While the number of justices has been set at nine since 1869, that experience and the Barrett nomination has ignited a campaign by Democratic activists to expand the court in retaliation, though that idea hasn’t been embraced by Biden or Senate Democratic Leader Chuck Schumer.
Biden has said he would appoint a commission to consider court reform, while Schumer has said everything would be on the table next year if Democrats take back the Senate.
Republicans have long seen court battles as a key motivator for turning out their base, and Republican senators including Judiciary Committee Chairman Lindsey Graham of South Carolina are pinning their re-election hopes in large part on their successful efforts to shift to the courts to the right.
They won’t have to wait long see whether their efforts bear fruit at the ballot box.