New US Supreme Court justice Amy Coney Barrett may be the tie-breaker in a case that could have a huge impact on the US election
Amy Coney Barrett is about to take her place on the bench of the US Supreme Court, making her one of the nine most powerful people in America.
The death of Justice Ruth Bader Ginsburg 46 days before the election gave Republicans an opportunity to solidify the conservative majority of the court.
After an evening vote in the Senate which saw her confirmed 52 to 48, Justice Barrett was sworn in at the White House, making her the sixth conservative-leaning justice on the nine-member bench.
Once she puts on the robe, Justice Barrett will immediately preside over a list of contentious petitions to the court.
Some even relate to the potential political fortunes and financial dealings of President Donald Trump, who put her on the bench.
One election case could have huge impact
The presidential election is now one week away, and because of the coronavirus pandemic, more Americans than ever are voting by mail.
Republicans in the crucial swing state of Pennsylvania have asked the Supreme Court to block efforts to allow an additional three days to count the mail-in ballots. Advocates wanted the extension to allow for the processing of ballots which arrive late, or do not have a legible postmark.
According to the brief, the Supreme Court was divided 4-4 on the emergency stay request, with Chief Justice John Roberts siding with the liberals to allow the extension.
Five justices are needed to grant the Republicans’ request, making Justice Barrett’s vote critical in the new request.
Pennsylvania Republicans have already filed a second petition for the Supreme Court to hear the case again.
“If it goes back to the US Supreme Court … Amy Coney Barrett … could be a 5-4 majority striking those rules down,” senior lecturer in American politics and foreign policy at the United States Studies Centre, David Smith, said.
“It’s broadly agreed Trump can’t win without Pennsylvania. If Biden doesn’t win Pennsylvania, then he will probably lose as well. So it is absolutely key.”
More cases could still follow, with deadlines for ballots unclear in a few other states.
Justice Barrett will also weigh in on any post-election disputes that emerge as ballots are counted.
When asked about election cases during her confirmation process, Judge Barrett said she was “100 per cent committed to judicial independence from political pressure”.
There’s a Trump tax case before the court
The Supreme Court is also expected to decide soon on whether a New York prosecutor can get access to eight years of Donald Trump’s tax returns.
In July, Mr Trump’s lawyers argued that he should be immune from the criminal subpoena, but the Supreme Court rejected that in a 7-2 decision.
“The President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need,” Chief Justice John Roberts wrote in his decision.
The case was sent back to the lower courts for further review, but is expected to return to the Supreme Court sometime this year.
But even if the court approves the New York subpoena, Mr Trump’s tax returns won’t automatically be made public, because they’ll be subject to grand jury secrecy rules.
A decision is due on ‘Obamacare’
Shortly after the election, the court is due to hear arguments which seek to overturn the Affordable Care Act (ACA), which provided health insurance to millions of Americans.
Despite Mr Trump wanting to dismantle large parts of former president Barack Obama’s healthcare law, Congress has only been able to successfully eliminate the ACA’s penalty for not carrying insurance.
In Texas vs California, the current lawsuit argues that because Congress removed the penalty, then the individual mandate can no longer be constitutionally justified as a tax.
That would mean the entire law would be invalidated.
The ACA, also known as Obamacare, is a pretty significant piece of legislation. Some experts have already argued that if it is overturned before the Supreme Court, “the prospect of substantive replacement that seeks to expand care to more Americans is unlikely”.
An abortion case is also coming up
The case, if the Supreme Court justices choose to hear it, could directly consider the precedent of Roe vs Wade and has the potential to reverse the landmark 1973 decision which gave American women access to abortion.
It relates to a law, signed by Mississippi’s Republican governor Phil Bryant in 2018, which bans all abortions 15 weeks into a pregnancy except in medical emergencies or if there are “significant fetal abnormalities”.
The state’s Attorney-General Lynn Fitch noted Mississippi’s defence of its 15-week abortion ban could give the Supreme Court an opportunity to clarify how lower courts should interpret Roe vs Wade.
“This case remains an ideal vehicle to promptly resolve … the contradictions in this Court’s decisions over use of ‘viability’ as a bright line for measuring pro-life legislation,” he wrote in a seven-page supplemental brief.
Justice Barrett is a devout Catholic, but has declined to offer a personal view on abortion access.
When asked during her Senate confirmation hearings if she could set aside her religious beliefs in making decisions on issues like abortion, Judge Barrett responded: “I can.”