Judge Amy Coney Barrett declined to say Wednesday whether she believes voter discrimination still exists in America and, in some of the testiest exchanges with senators this week, rejected suggestions that she would diminish voting rights as a Supreme Court justice.
The tensions at the hearings reflected the escalating stakes of voting and representation in America, especially with a presidential election underway amid a pandemic and records set for early votes cast.
The court under Chief Justice John Roberts has curtailed the reach of the 1965 Voting Rights Act. The conservative majority has narrowly defined its role in protecting the franchise, deferring to state officials and their electoral rules. And it has separately prevented challenges to partisan gerrymandering and lifted campaign finance regulations.
Barrett, currently a judge on the Chicago-based 7th US Circuit Court of Appeals, has a record of conservatism that would align with justices on the right wing and likely reinforce the pattern on election-related issues.
Justice Ruth Bader Ginsburg, who died on September 18 and whom Barrett would succeed, was an unyielding voice of dissent against the Roberts court trend.
Ginsburg wrote for liberals who protested the 2013 Shelby County v. Holder decision, which has given states greater latitude to impose voter-identification laws and to limit polling places and when ballots may be cast. That dissent gave birth to her iconic status as the “Notorious RBG.”
That case from Alabama limited the reach of a section of the landmark act that required states with histories of racial discrimination to clear any electoral changes with the US Department of Justice or a federal court. The section had covered mainly Southern localities, and Roberts wrote that although some voter bias remained, the country had changed sufficiently, extinguishing the “preclearance” criteria for covered localities.
Indicative of how such dilemmas tend to break along ideological and political lines, Roberts was joined by four fellow Republican-appointed conservatives on the nine-member bench as the four Democratic-appointed liberals dissented.
Democratic Sen. Kamala Harris of California, running mate to former Vice President Joe Biden, now seeking the White House, referred to that decision on Wednesday as she questioned Barrett.
“Since the Supreme Court’s decision in Shelby, at least 23 states have passed restrictive voting laws and have attempted to also close polling places, stopped early voting and take people’s names off the voter rolls that should not have been removed,” Harris asserted.
She asked Barrett whether she agreed with a statement by Roberts in that case: “Voting discrimination still exists, no one doubts that.”
Barrett minimized the sweep of the Shelby County v. Holder decision, as she had done at other points in the hearing, saying Congress could always choose to amend the law to create a formula for states that would be covered by a “preclearance” rule. Barrett eventually declared that she “will not comment on what any justice said in an opinion, whether an opinion is right or wrong or endorse that proposition.”
Pushed again, Barrett said, “I think racial discrimination still exists in the United States.” But she resisted addressing discrimination in polling practices.
“I’m not going to express an opinion because these are very charged issues,” she said. “They have been litigated in the courts, so I will not engage on that question.”
Voting rights vs. gun rights
A similarly contentious exchange occurred when Democratic Sen. Dick Durbin of Illinois questioned Barrett’s commitment to voting rights, particularly compared with her defense of Second Amendment rights.
He homed in on a 2019 dissenting opinion by Barrett in a 7th Circuit case as she had sided with a Wisconsin man who, after a nonviolent felony conviction, was seeking restoration of his Second Amendment rights.
Barrett wrote that government has “the power to prohibit dangerous people from possessing guns” but it “extends only to people who are dangerous. Founding legislatures did not strip felons of the right to bear arms simply because of their status as felons.”
The 7th Circuit majority, she added, “treats the Second Amendment as a second-class right.”
Durbin focused on a section of her opinion placing comparative value on Second Amendment rights compared with other individual rights.
In her opinion in the case of Kanter v. Barr, Barrett wrote that historically the right to arms differed “from rights that depend on civic virtue for employment. The Second Amendment confers an individual right, intimately connected to the natural right of self-defense, and not limited to civic participation (i.e., militia service). By the very terms of the civic-rights argument, then, the right to arms would have been ‘treated differently’ than rights like the right to vote or to sit on juries.”
Durbin told Barrett, “You concluded that any felony can take away your right to vote, but only a violent felony can take away your right to purchase an AK-47.”
“Senator, with respect, that’s distorting my position,” Barrett responded. “What I said in that case … is that the right to vote is fundamental. … (B)ut we possess it as part of our civic responsibility for the common good.”
Voting cases in the post-RBG era
The Roberts court already has a solid five-justice majority to favor state regulation of electoral practices, in the face of civil rights challenges. But the dynamic in such cases may be different without its most passionate dissenter in the area.
When she wrote on behalf of herself and fellow liberals in the 2013 Shelby County case, Ginsburg declared, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Ginsburg was similarly the voice of dissent in April when the majority reversed lower court orders extending the deadline for absentee voting in Wisconsin by six days because of the Covid-19 pandemic.
“The Court’s order, I fear, will result in massive disenfranchisement,” Ginsburg wrote, referring to risks “to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.”
Since that April dispute, the Supreme Court has fielded a series of state election controversies. And President Donald Trump has predicted that his own effort to win a second term could end up at the Supreme Court.
He has cited that possibility for his interest in getting Barrett confirmed. “I think this will end up at the Supreme Court,” Trump said last month. “And I think it’s very important that we have nine justices.”
Barrett, who would be Trump’s third appointee to the bench, brushed back questions about whether the President could delay the date of the November election and, as she had done earlier, declined to commit to recusing herself from any presidential election dispute.
She acknowledged in her Senate questionnaire that she had assisted with the 2000 case of Bush v. Gore, on the side of then-Texas Gov. George W. Bush in the Florida election dispute. She told senators on Wednesday she could not recall specifics of her involvement.
“I did work on Bush v. Gore,” she said. “I did work on behalf of the Republican side. To be totally honest, I can’t remember exactly what piece of the case it was. There were a number of challenges.”