The Senate is expected to confirm Judge Amy Coney Barrett to the Supreme Court on Monday evening, in time for oral arguments on an Affordable Care Act case on Nov. 10.
Barrett, a judge on the U.S. Court of Appeals for the 7th Circuit, is likely to be confirmed without Democratic support. The full Senate vote came a month after Barrett’s nomination was announced at the White House on Sept. 26. The vote also will mean Barrett will be seated in time for both the November election and for the court to hear oral arguments in California v. Texas, a case that could determine the fate of the Affordable Care Act.
The confirmation returns the Supreme Court to nine justices. If the Supreme Court had come to a 4-4 decision, a lower court decision that ruled the ACA’s zeroed-out individual mandate was unconstitutional and ordered further severability analysis would have stood.
Democrats argued during Barrett’s confirmation hearings that if she were seated to the court the ACA would be at risk, citing past writings where she criticized an opinion by Chief Justice John Roberts in National Federation of Independent Business v. Sebelius, in which the court decided that the ACA’s individual mandate was a tax and could be lawfully enacted by Congress.
“[Roberts] construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress’s commerce power,” Barrett wrote in a 2017 law review article.
Congress’ decision to zero out the individual mandate is the crux of the legal issue in California v. Texas.
During her confirmation hearings Barrett insisted she didn’t have any hostility toward the ACA and had no goal to repeal the landmark healthcare law, and said the White House did not ask her about the case during the nomination process.
“I am not here on a mission here to destroy the Affordable Care Act, I’m just here to apply the law,” Barrett said.
Though Barrett declined to comment on the facts of the case in California v. Texas, she said they are different from those in National Federation of Independent Business v. Sebelius.
She also said judges should presume that a larger law can be saved even when part of it is ruled unconstitutional. Severability could be an important factor in how much of the ACA could be preserved if some parts of the law if the Supreme Court finds some provisions to be unconstitutional.