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OPINION

Federal court decisions affect much in American life

The Examiner

Judge Amy Coney Barrett is on the fast track to becoming a Supreme Court justice. She will replace Ruth Bader Ginsburg, also known as RBG. Apparently, Judge Barrett is drawing the short name of ACB. ACB and RGB might have been friendly if they served together, but I suspect that they would not agree on many decisions.

Bob Buckley

Once approved by the full Senate, which seems inevitable, there will be six conservatives on the court. Merrick Garland will become a footnote in history as he was appointed by President Obama in March 2016 but blocked from consideration by Senator Mitch McConnell and the Republicans because they said that the next president should fill a vacancy that occurs in a presidential election year. That logic obviously did not apply here as ACB will be approved.

Judge Barrett has undergone much scrutiny this week, and I must confess that I did not watch much of the Judiciary Committee hearings. She may be a very bright woman, and I don’t think her religion should be a factor in determining whether she is qualified, but the double standard of Senate Republicans on election year appointments is troubling.

I don’t practice much in federal court. I have tried one case in federal court since 1980, and it was not an enjoyable experience. The case had been filed in state court, but removed to federal court by the defendant’s attorney because the defendant was not a resident of Missouri. Jurisdiction was based on “diversity jurisdiction,” which requires that the case be removed to federal court if there is diversity of citizenship between the plaintiffs and defendants. I have only voluntarily filed one case in federal court in my career. It was a civil rights case (my only one of those too), and it had to be filed in federal court.

Most lawyers don’t appear often in federal court unless it is Bankruptcy Court. Thus, federal courts don’t impact my practice very often. However, federal judicial decisions do impact daily life in many aspects of life. In the past 10 years, Obergefell v. Hodges was decided, which ruled that the fundamental right to marry is guaranteed to same-sex couples. A different result might have occurred had there been six conservatives on the Supreme Court.

Shelby County v. Holder, decided in 2013, determined that racial voter discrimination that Congress addressed in the Voting Rights Act of 1965 no longer existed. Many would argue today that the actions of some state officials in some Southern states is ample proof that racial voter discrimination still exists.

Citizens United v. Federal Election Commission was decided in 2010 and opened the floodgates of corporate money in elections as the court held that all corporations, profit or non-profit, have many of the same rights to participate in and spend money on elections as individuals.

National Federation of Independent Business v. Sebelius was a case challenging a provision in the Affordable Care Act (also known as Obamacare). Chief Justice Roberts joined the liberals on the court in a 5-4 decision which held that the individual mandate to buy health insurance was a tax and was constitutional. A challenge to the Affordable Care Act is now pending in the Supreme Court, and if the Trump administration is successful, some of the popular parts of Obamacare – protection of pre-existing conditions and coverage for children under the age of 26 in family polices – will vanish.

There is also concern that the new court could become an arbiter in the presidential election as was did in Bush v. Gore in 2000. In that case, after Al Gore won the popular vote, but the election’s outcome was contingent upon Florida and its 25 electoral votes. Once the deadline for counting the votes had passed, no clear winner of Florida’s electorate vote was announced. Gore then requested a manual recount under Florida’s statute. 

The Supreme Court determined that Florida’s recount law was unconstitutional, and President Bush received the Florida electoral votes and the presidency. Justice Ginsburg dissented on that case and said the Supreme Court should give deference to the state Supreme Court’s interpretation of its own laws.

Judge Barrett may be presented with a similar case. She is a conservative and considers deceased Justice Antonin Scalia as her mentor. Scalia was an originalist, which means she interprets the text of the Constitution to have the meaning that it had at the time people ratified it. She said that meaning does not change over time and “it’s not up to me to update it or infuse my own policy views into it.”

Judge Barrett also stated that she believes in “stare decisis” (adherence to precedent). She has argued that stare decisis is just one of many features of our judicial system that promotes doctrinal stability. She actually wrote a law review article for Notre Dame University in 2017 that is entitled “Originalism and Stare Decisis.” She contends they are compatible.

Roe v. Wade has been the law of our country since 1973. It will be interesting to see how originalism and stare decisis affect her views on the inevitable challenge to that case and on many other issues that will come before her. She appears to be a very bright woman with strong faith. Both of those qualities should guide her.    

Bob Buckley is an attorney in Independence. Email him at bbuckley@wagblaw.com.