Following the confirmation of Amy Coney Barrett to the Supreme Court on Oct. 26, two professors at the University of Nebraska-Lincoln gave their academic perspective on the potential future implications of her confirmation.
Even before Barrett was seated at the Supreme Court, the lineup of justices had a conservative leaning. However, her nomination will pull the court further to the right, and it is likely to keep this leaning for many years to come, given the infrequent turnover rate of justices, according to John Gruhl, a professor of political science at UNL.
The votes of justices cannot be fully predicted, regardless of political party, according to Gruhl. There are examples of this, such as Associate Justice of the Supreme Court Neil Gorsuch, a known conservative, agreeing that the Civil Rights Act of 1964 also prohibited discrimination of transgender individuals. However, even with this unpredictability, there is an assumption that most cases will be decided in a conservative fashion from now on, Gruhl said.
Chief Justice of the Supreme Court John Roberts' vote is now less crucial, according to Gruhl. Before Barrett’s nomination, even though Roberts is considered to be conservative, he would at times vote alongside the more liberal members of the court. Now, the court has a six to three conservative leaning due to Barrett’s nomination, and Roberts’ vote is no longer as decisive as it once was, Gruhl said.
Gruhl said the Supreme Court could revisit the legality of certain important issues, such as abortion, given the conservative majority of the court.
“This means the right to abortion is in jeopardy,” Gruhl said. “Barrett herself has written harshly about the Roe v. Wade decision that created the right to abortion. Most legal scholars believe it is just a matter of time whether the court will go step-by-step to eviscerate the right to abortion or whether it might do so in one fell swoop.”
Gruhl said he did not think it was appropriate for the Trump administration to appoint a replacement justice this close to an election.
“When [Barrett] was confirmed, it was eight days before election day, and by that time there had already been millions of votes cast, so you couldn’t even say it was before the election, the election had already taken place,” Gruhl said.
Gruhl said he believed it was hypocritical of the Senate to allow Donald Trump to nominate Barrett and confirm her when they denied Barack Obama the same right in 2016 and blocked his Supreme Court nomination, Merrick Garland, ten months prior to the end of Obama’s term.
“If people don’t follow any principles, if they don’t even follow their own principles, their own rules so-called, then all it comes down to is power,” Gruhl said.
Eric Berger, professor of law, said that there was hypocrisy in the Republican stance now compared to that in 2016.
“The lesson is it’s about political power, and the Republicans controlled the Senate in both instances and used that power to their advantage,” Berger said.
Berger said that apparent random nature is a common criticism of the current system, with the composition of the courts greatly depending on who happens to be the president when justices retire or pass away.
“It is dangerous to make predictions because the court doesn’t always do what people expect it to do,” said Berger.
Berger said he suggests reading Supreme Court opinions for oneself on issues of interest in order to stay informed, and he suggests that students take courses on how American court systems function.
Gruhl said that he believes the political parties are continuing to become more polarized and that bringing unification to the country will not be an easy process.
“We need to move to a situation in which judges aren’t so aggressive as policymakers, where it’s just not assumed that liberal judges will always vote for a liberal outcome and conservative judges will always vote for a conservative outcome,” Gruhl said.
Gruhl emphasized the problem of polarization in our current political climate and how most Americans hate it but end up fueling it regardless.
“There are clear reasons why we’ve become more polarized, but what is not clear is how we might become less polarized in the future,” he said. “Except the average American hates it, hates the polarization even if that person leans to the Democrats or to the Republicans.”
Gruhl said the issue of polarization was easier during the Cold War because the American people had a common enemy, and it might take another attack for the country to be as unified as it once was.
“If we had an external enemy, we would probably learn to come together,” Gruhl said.