Democrats have complained loudly about the unfairness of an election-year Supreme Court selection for President Donald Trump when President Barack Obama was denied the same opportunity.
But now that Trump has named a candidate, they’re also worried about her positions on the Affordable Care Act, Obama’s signature health care law.
Joe Biden, Obama’s vice president and now the Democratic presidential nominee, spoke about it in remarks he made on the Supreme Court on Sept. 27.
"It should come as no surprise that President Trump would nominate Judge Amy Coney Barrett," Biden said. "She has a written track record, disagreeing adamantly with the Supreme Court’s decision to uphold the ACA. In fact, she publicly criticized Chief Justice Roberts’ opinion upholding the law eight years ago."
We decided to look into the evidence. We found that Barrett hasn’t written a lot about the Affordable Care Act, but what she has written has been decidedly negative about the Supreme Court’s 2012 ruling upholding its constitutionality.
Her most extensive writing on the Affordable Care Act that we found was a 2017 book review titled, "Countering the Majoritarian Difficulty." The book review focused on judicial restraint and when courts should invalidate laws passed by legislatures.
Barrett’s writing suggests sympathy with Supreme Court justices who are both "originalists" and "textualists," best exemplified by Justice Antonin Scalia, a conservative icon, who objected to the majority view that upheld the Affordable Care Act in two cases: the National Federation of Business (NFIB) vs. Sibelius and and the later King vs. Burwell.
Those cases, upheld by Chief Justice John Roberts and the court’s left-leaning justices, found the law constitutional because it ultimately depended on the federal government’s taxing authority to compel people to buy insurance (called the individual mandate). Scalia argued that was wrong because, among other things, the law itself called the tax a penalty.
Barrett’s review said that Roberts "has not proven himself to be a textualist in matters of statutory interpretation."