Senate Narrowly Confirms Amy Coney Barrett to U.S. Supreme Court

By Mark Walsh — October 26, 2020 4 min read
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The U.S. Senate on Monday confirmed Amy Coney Barrett to the U.S. Supreme Court, after a rapid confirmation process that highlighted, among other things, her comfort with the high court’s recent decisions on religion and education and her view that the courts are not meant to resolve many of society’s most contentious issues.

The Senate voted 52-48 in favor of Barrett on Monday evening, with one Republican and all Democrats voting against her because of what they viewed as an improper process to fill the seat of the late Justice Ruth Bader Ginsburg so close to the presidential election. Ginsburg, a champion of women’s rights and a frequent vote for student rights, died Sept. 18.

[Updated] Barrett took one of her two required oaths at ceremony on the South Lawn of the White House on Monday evening. Justice Clarence Thomas administered the constitutional oath, while Chief Justice John G. Roberts Jr. will administer the judicial oath at Tuesday at the court.

Sen. Susan Collins of Maine was the lone Republican to vote against Barrett, saying the nominee should be chosen by the election winner.

“To be clear, my vote does not reflect any conclusion that I have reached about Judge Barrett’s qualifications to serve on the Supreme Court,” Collins said on the floor Sunday. “What I have concentrated on is being fair and consistent, and I do not think it is fair nor consistent to have a Senate confirmation vote prior to the election.”

Sen. Charles Schumer, D-N.Y., the minority leader, said Sunday, “Confirming a lifetime appointment this late into a presidential election season is outrageous.”

He referred to Republicans’ refusal to give Judge Merrick Garland, President Barack Obama’s nominee to succeed the late Justice Antonin Scalia, in 2016, and said, “there is no escaping this glaring hypocrisy.”

Sen. Mitch McConnell, R-Ky., the majority leader, said Barrett is “a stellar nominee in every single respect. Her intellectual brilliance is unquestioned. Her command of the law is remarkable. Her integrity is above reproach.”

“A lot of what we have done over the last four years will be undone sooner or later by the next election,” McConnell added on the floor Sunday. “They won’t be able to do much about this for a long time to come.”

New Argument Session Looms

Barrett, 48, will join the high court in time for its next two-week argument session, which will be conducted over the telephone beginning Monday. Among the cases she will participate in are two that are being watched in the education community.

In Fulton v. City of Philadelphia, to be argued Nov. 4, the justices are weighing a challenge by the social-services agency of the Roman Catholic Archdiocese of Philadelphia to that city’s refusal to continue to use the agency for its foster-care system because the agency would not place such children with same-sex couples.

The case has implications not only for the ongoing debate over religiously motivated objections to same-sex marriage, but also for a 30-year-old Supreme Court precedent that made it easier for neutral laws to restrict religious practices, and that issue has arisen in education.

On Nov. 10, the justices will hear arguments in California v. Texas, a case about the Affordable Care Act, which has implications for health insurance for young people and, to a degree, for school employees.

During her confirmation hearing earlier this month, Barrett addressed a handful of education issues. She acknowledged that the court’s 1954 decision on school desegregation in Brown v. Board of Education of Topeka was correctly decided and a “superprecedent” beyond overruling.

She spoke movingly of watching with some of her seven children the video of George Floyd, the Minneapolis man who died in May after a police officer kept his knee on Floyd’s neck.

“As you might imagine, given that I have two Black children, that was very, very personal for my family,” Barrett said on the second day of her hearing.

Barrett was asked about the Supreme Court’s recent rulings on religion and education. On one issue, she noted that she had been part of a panel on the U.S. Court of Appeals for the 7th Circuit, in Chicago, that took a broad view of which religious-school teachers were exempt from coverage of the nation’s anti-discrimination laws. The high court took the same view in a decision last July, in Our Lady Guadalupe School v. Morrissey-Berru.

Barrett also commented on the high court’s June decision in Espinoza v. Montana Department of Revenue, which held that a Montana state constitutional provision barring aid to religion discriminated against religious schools and families seeking to benefit from a tax credit for donations for scholarships.

“The court has been clear that religious institutions cannot be discriminated against or excluded from public programs simply because they are religious.” Barrett said.

Barrett was questioned little or not at all about some other contentious issues in education, including the consideration of race in college admissions, the protections against sex discrimination in Title IX of the Education Amendments of 1972, or gender identity and sexual orientation discrimination in schools.

In her opening statement, Barrett said “courts are not designed to solve every problem or right every wrong in our public life.

“The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people,” Barrett said. “The public should not expect courts to do so, and courts should not try.”

A version of this news article first appeared in The School Law Blog.