Late development ‘could decide election’
Newly appointed US Supreme Court Justice Amy Coney Barrett will help decide several important cases in the coming weeks, some of which relate to the presidential election and could influence its final result.
Justice Barrett was sworn in at the White House last night, eight days before the election, after the Senate voted to confirm her by a 52-48 margin.
Justice Barrett, a political conservative, promised Americans her own policy preferences would not influence her decisions on the bench.
"It is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give in to them," she said.
"Federal judges don't stand for election, thus they have no basis for claiming their preferences reflect those of the people.
"This separation of duty from political preference is what makes the judiciary distinct among the three branches of government. A judge declares independence, not only from Congress and the president, but also from the private beliefs that might otherwise move her.
"My fellow Americans, even though we judges don't face elections, we still work for you. It is your Constitution that establishes the rule of law and the judicial independence that is so central to it.
"The oath that I have solemnly taken tonight means at its core that I will do my job without any fear of favour, and that I will do so independently of both the political branches and my own preferences."
Mr Trump heaped praise on Justice Barrett with some uncharacteristically soaring rhetoric.
"Justice Barrett, as you take your oath tonight, the legacy of our ancestors falls to you," the President said.
"The American people put their trust in you and their faith in you as you take up the task of defending our laws, our Constitution, and this country that we all love.
"We ask God to give you wisdom and courage. I know you will make us all very, very proud. As long as we are loyal to our founding and to our fellow citizens, America's future will be bright, America's destiny will be great and America's people will forever and always be free."
He said the American people had been "profoundly impressed" by Justice Barrett during her confirmation hearings in the Senate.
"Over the past few weeks, the entire world has seen Justice Barrett's deep knowledge, tremendous poise, and towering intellect," said Mr Trump.
"She answered questions for hours on end. Throughout her entire confirmation, her impeccable credentials were unquestioned, unchallenged, and obvious to all."
So, what comes next? There is no quiet settling in period for the new justice, with the Supreme Court due to consider a raft of potentially controversial petitions, the first of which could influence the result of next week's presidential election.
Republicans in Pennsylvania, a crucial swing state, have asked the court to strike down a measure which would allow mail ballots to be counted up to three days after election day, even if their postmark is not legible.
Pennsylvania is among the states that still accept ballots if they arrive during a window after election day, as long as their postmark indicates they were sent before the deadline. This measure represents a relaxation of the rules.
The Supreme Court split 4-4 on an emergency stay request on this matter last week, with the four conservative justices voting to block the ballot extension, and Chief Justice John Roberts siding with the three progressives.
Should the court agree to hear the case before election day, Justice Barrett could add her vote to her fellow conservatives' and strike down the measure.
"Because the election is imminent, these questions must be answered immediately," the petitioners have said.
Justice Barrett could also influence a similar case, this time concerning North Carolina, another swing state which leans a little more Republican.
The state's Board of Elections has extended the period during which its ballots can still be counted after election day from three days to nine.
Republicans want that change to be blocked. They argue the board has usurped the authority of the state legislature, which has only passed legislation enabling the three-day extension.
A federal appeals court has ruled in favour of the nine-day extension, saying it "simply makes it easier for more people to vote absentee" and citing the coronavirus pandemic.
The petitioners hope the Supreme Court will overturn the lower court's ruling.
These two cases, put together, could lead to thousands of votes being disqualified, in a pair of states which may prove crucial to the outcome of the election.
Because mail votes are overwhelmingly Democratic, those disqualifications would almost certainly help Mr Trump.
The Democrats are worried.
"Barrett's first decisions as a justice may determine the outcome of the election," writes Slate, a liberal-leaning news site.
"One of the first cases she could hear as a new Supreme Court justice could decide who wins the White House," says Fox News.
You get the idea. It's also floating around a lot on social media.
Watch the Supreme Court carefully the next few days. Key voting rights cases could determine whether hundreds of thousands of mail-in ballots are counted in Pennsylvania, Wisconsin, and North Carolina. There's a reason for the mad rush to confirm and swear in Amy Coney Barrett.— Elie Honig (@eliehonig) October 26, 2020
This Friday, the court will hear arguments on Mississippi's 15-week abortion ban, which contains exemptions for medical emergencies or severe foetal abnormalities, but not for cases in which the pregnancy is a result of rape or incest.
The law was passed, and promptly struck down by a federal judge, in 2018.
One of the other core concerns Democrats have about Justice Barrett's ascension to the court is whether abortion rights, as secured by the landmark Roe vs Wade decision of 1973, will now be under threat.
The day after the election, the Supreme Court is due to hear a case, Fulton vs City of Philadelphia, which could lead to them up-ending a 30-year-old precedent on the issues of discrimination and religious liberty.
Depending on the justices' ruling, the case could make it easier for non-discrimination rules to be challenged on religious grounds.
There is also a pending decision which will directly affect Mr Trump. Prosecutors in New York are trying to win access to the President's financial documents from a period spanning from the start of 2011 to August of 2019.
In July, the Supreme Court voted 7-2 to deny Mr Trump's claim of immunity from the subpoena seeking his records. The issue went back to the lower courts, which continued to reject the arguments of Mr Trump's lawyers.
His legal team now wants the Supreme Court to freeze the latest lower court ruling while it considers whether to hear the case again itself.
Biggest of all, perhaps, is the case looming a week after the election.
The justices must decide whether Barack Obama's signature healthcare law, the Affordable Care Act, is unconstitutional. If they say it is, the entire law will be struck down, potentially leaving millions of Americans without health insurance coverage.
Mr Trump has been promising a plan to replace Obamacare for years, but has yet to release one. He was asked about it during his contentious 60 Minutes interview last week.
"You promised that there was going to be a new health package, healthcare plan. You said that it was going to be great, you said it'll be ready, it's going to be ready, it's all ready, it'll be here in two weeks, it's going to be like nothing you've ever seen before. And of course we haven't seen it. So why didn't you develop a health plan?" interviewer Lesley Stahl asked.
"It is developed. It's fully developed. It's going to be announced very soon, when we see what happens with Obamacare," Mr Trump insisted.
"Your plan was to repeal and replace. And if the Supreme Court finishes Obamacare, there will be all these people stranded, because there's no replacement," Stahl told him.
"No, we will make a deal, and we will have a great healthcare plan," Mr Trump said.
"What about the people with pre-existing conditions?" she asked.
"They'll be totally protected," he promised.
"How?" asked Stahl.
"They'll be protected, Lesley," said Mr Trump.
They went back and forth on that issue several times. Mr Trump kept insisting Americans with pre-existing conditions would be protected, but never explained how.
As the questioning continued, he changed his story a couple of times, first saying "we will come up with a great plan" and then telling Stahl "we have large sections of it already done", contradicting his earlier assertion that the whole thing was ready.
So in summary, there is already more than enough on Justice Barrett's plate as she takes her seat on the bench.
Originally published as Late development 'could decide election'
A great conservative jurist, former CA4 Judge Michael Luttig, convincingly explains why a 2009 SCOTUS decision means Justice #AmyConeyBarrett must recuse from any case that cd decide the election. If she doesn’t, expect a devastating political backlash. https://t.co/9D8UFs0Ijd— Laurence Tribe (@tribelaw) October 18, 2020
EDITORIAL | Amy Coney Barrett dodged when asked whether she would recuse herself from casting a vote that could decide an election between Joe Biden and the president who just nominated her.— New York Daily News (@NYDailyNews) October 27, 2020
This is a recipe for a crisis of legitimacy.https://t.co/aAuqhndELr