Barrett Faces Gauntlet of Challenges in First Weeks As Justice

Emergency election appeals, abortion petition await new justice

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October 26, 2020

Justice Amy Coney Barrett, sworn in Monday night after the Senate confirmed her nomination 52-48, has joined the Supreme Court under trying circumstances.

The Court is currently handling an emergency application involving absentee mail-in ballot deadlines in North Carolina, a hotly contested battleground. Democrats and progressive advocacy groups are pressing Barrett to recuse herself from such matters, arguing that President Donald Trump has created an appearance of bias by connecting her nomination with post-election court battles. Beyond the election, the Court will soon decide whether to hear an abortion appeal from Mississippi, which could embolden state-level efforts to restrict the procedure.

Barrett would have held the deciding vote in an emergency appeal from the battleground state of Pennsylvania that deadlocked the short-handed Court on Oct. 19. In that case, the Pennsylvania Supreme Court told election officials to count tardy mail-in ballots received by Nov. 6, unless it was more likely than not the ballot was submitted after Election Day. Keystone State Republicans asked the justices to impose an Election Day deadline. The justices split four to four, so the Pennsylvania court's order was upheld.

Barrett is facing heavy pressure to disqualify herself from such cases, after Trump said the Senate should confirm his nominee to ensure the Court has a full complement of justices to resolve any post-election disputes. The pressure campaign leans on a 2009 Supreme Court case involving a West Virginia coal baron who donated $3 million to help elect a state judge. That judge in turn cast a deciding vote protecting the donor's company from a $50 million damages judgment. A 5-4 Court held that the Constitution required the judge to recuse, saying a reasonable person would conclude the judge was biased based on an "appraisal of psychological tendencies and human weakness."

Applying that standard to Barrett's case, Democrats argue the reasonable onlooker will suspect the new justice feels bound to support the man who just appointed her to the High Court. Barrett pledged to fully and faithfully apply the recusal law during her confirmation hearings, but declined to disqualify herself from particular cases in advance.

"The issue is not whether Barrett has good intentions or is horribly biased; it's whether a reasonable observer could reasonably question her participating in a dispute involving Trump’s reelection as a neutral arbiter of fact and law," Sen. Sheldon Whitehouse (D., R.I.) wrote in a Washington Post column. "This inherent conflict was evident from the start—but Trump gave away the game."

Decisions to disqualify ultimately rest with each individual justice. While federal judges are required to follow a code of conduct, those ethics rules are not binding on justices of the Supreme Court. Barrett may look to the example of her one-time mentor, Justice Antonin Scalia, who was similarly urged to recuse himself from a 2004 case involving then-vice president Dick Cheney, a friend and hunting companion. Scalia refused and wrote a 20-page memo explaining why recusal, though sometimes necessary, would disservice the Court and the parties in that particular case.

Beyond the immediate press of the election, Barrett will soon have an opportunity to weigh in on an abortion petition that has been pending before the Court since August. The dispute involves a Mississippi law that bans abortions past 15 weeks, barring severe fetal abnormality.

One question in the case arose from the Supreme Court's June abortion decision, in which Chief Justice John Roberts joined the liberal bloc to strike down Louisiana's abortion-clinic regulations. Justice Stephen Breyer wrote an opinion for the four liberal justices holding the regulations unconstitutional because the burdens they created outweighed the benefits. Roberts wrote a solo opinion striking down Louisiana's law on different grounds.

In the ensuing months, federal courts have split as to which legal test from June's case they should follow. Two federal appeals courts say Roberts's rationale is binding on the lower courts, while a third court chose to follow the burdens-benefits approach.

While that disagreement may sound arcane, it's very significant for the odds that the justices will hear the Mississippi case. The Supreme Court tends to take up cases involving legal questions over which multiple courts disagree.

Legal briefs from all sides of the Mississippi dispute were submitted by August 19. The next step is for the justices to decide whether to hear the case. The case is No. 19-1392 Dobbs v. Jackson Women's Health Organization.