The irony of this debate is that it obscures the philosophical commitments that explicitly shape who Barrett would be as a justice. Article VI of the Constitution prohibits any religious test from being imposed on candidates for office. We cannot know how Barrett’s Catholicism shapes her views, and moreover, it is likely unconstitutional for senators to consider that in evaluating her fitness for the job. But it is clear that her involvement in the conservative legal movement has definitively shaped her approach to the law.
Abortion would be by far the most controversial issue up for consideration by a Supreme Court with a conservative supermajority. A number of cases already in the pipeline to the high court could lead to significant restrictions on abortion rights around the country. But conservatives also see opportunities in other areas of the law: expanding the boundaries of religious freedom, for example, as well as scaling back bureaucrats’ ability to determine government policies. Specific laws, most notably the Affordable Care Act, are at direct risk of being struck down; a challenge to the health-care law is scheduled for oral arguments just a few days after the election.
In recent years, conservative justices have joined the liberal wing of the Court for decisions on highly contested issues, from legalizing same-sex marriage in Obergefell v. Hodges to protecting the status of young undocumented immigrants in Department of Homeland Security v. Regents of the University of California. The biggest advantage of having six Republican-appointed justices on the Court is that conservatives can “seek review in the Supreme Court, and not have to worry about 5–4 decisions,” C. Boyden Gray, who served as White House counsel to George H. W. Bush, told me. The new conservative supermajority “promises a revolution in doctrine,” Balkin said. “But that’s too strong a word, because, in fact, doctrine has been changing markedly over the course of the last 30 years.”
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For all their claims of neutrality, Supreme Court justices are political creatures who tend to follow their ideological leanings when big decisions are at stake. Over time, the Court has gradually become more favorable to conservative judicial philosophies. Even Justice Elena Kagan, who was appointed by Barack Obama, has said so: “We’re all textualists now,” she declared. Barrett’s nomination, then, is not the beginning of a new era on the Supreme Court. It is the ratification of a long-standing trend.
Thirty years ago, the movement could not claim this kind of dominance. Democrats tanked Robert Bork, one of the early advisers to Yale’s chapter of the Federalist Society, at his 1987 Supreme Court confirmation hearings. David Souter, who joined the Court in 1990, was later reviled by conservatives for steadily becoming more liberal over his tenure. Now every conservative who makes it to the federal bench is a known entity. “For all the candidates since then, they’ve all had records where you can get a pretty good picture of how they would deal with tough, national issues,” Gray, who worked on Souter’s appointment, told me.