President Donald Trump's latest pick for the U.S Supreme Court: Amy Coney Barrett puts a sharper focus on what a more conservative court could mean for the challenge to the Affordable Care Act.
Barrett, a federal appeals court judge in Chicago, is surely going to move the makeup of the court more to the right if she is confirmed to replace the late liberal Justice Ruth Bader Ginsburg. The bench will be compromised of six justices nominated by Republicans and just three by Democratic presidents.
That potential shift in power matters because in just a few weeks the high court is set to hear the case that could overturn the Affordable Care Act, and if Barrett is confirmed in time she will likely play a critical role and could upend the law.
Barrett, who clerked for the late conservative Justice Antonin Scalia, has been critical of the ACA and a previous Supreme Court decision to uphold the law.
Barrett, also a Notre Dame law school professor, penned a 25-page article in 2017, reviewing a book by a legal scholar considered "among the chief architects" of one of the prior challenges to the ACA, according to a recent Health Affairs article.
In 2012, Chief Justice John Roberts joined the liberal wing of the court, saving the law by ruling that the individual mandate that requires Americans to have insurance coverage (or pay a penalty) could be considered a tax.
In her article, Barrett wrote that "Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute."
Barrett went on to explain that had Roberts "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 argues that judges shouldn't defer to what is popular. "[The author] is surely right that deference to a democratic majority should not supersede a judge's duty to apply clear text."
Barrett, a practicing Catholic and mother of seven, has also been critical of a section of the ACA that allows religiously-affiliated organizations to pass the cost of birth control, which is required coverage under the law, onto the insurance carrier. She reportedly signed a letter along with hundreds of other academics critical of that accommodation, according to USA Today. The letter states in part that the arrangement "fails to remove the assault on religious liberty."
Still, despite Barrett's critical view of the ACA, she may not yield the fatal blow to the law.
The plaintiffs, a collection of red states, in the ACA case are asking the justices to tear down the entire law because one part — the individual mandate — is unconstitutional in their eyes.
That raises the importance of the concept of severability, whether part of a law can be severed or cut from the rest. Roberts and Justice Brett Kavanaugh seem to favor severability. In the past they have argued that just because one piece of a larger law is unconstitutional does not mean the rest should come down with it.
Kavanaugh previously wrote that the court's preference has been to "salvage rather than destroy" the rest of a law in the event one part is deemed unconstitutional.
If Roberts and Kavanaugh join the liberal wing in favor of severability, the vote would be 5-4, even if Barrett votes to strike down the entirety of the law.
Still, analysts are more skeptical about what a loss at the Supreme Court would mean for the ACA, arguing "the law cannot practically be halted by a SCOTUS," according to a recent note from SVB Leerink.
"Ultimately, if SCOTUS were to uphold the lower court ruling, Congress would need to act to remedy the issue(s) the court finds with the law (or replace it altogether)," SVB Leerink analysts wrote.
And as the election nears, the analysts point out that if the Democrats win in November and take the Senate and White House, they could pass through a fix that would render the case moot.