Amy Barret sworn in right before US elections in November 2020


by Namrata Jeph

Judicial independence is a multifaceted concept and there is no one ideal model of implementing judicial independence in the sense that one-size-fits-all. It is a result of a combination of different conditions, measures, checks, and balances that can vary from one country to another. However, only when a judiciary is independent it can make fair decisions that uphold the rule of law, an essential element of any genuine constitutional democracy. The Constitutional guarantees are of no significance without independent courts to protect them. In words of Andrew Jackson, all the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary. The nomination of Justice Amy Coney Barrett for the post of Associate Justice of the Supreme Court of the United States by President Donald Trump right before the November election created a major controversy.

This nomination was meant to fill the vacancy left by Justice Ruth Bader Ginsburg, a liberal icon who passed away on 18th September, 2020. The appointment of Justice Barrett has made the composition of the Supreme Court of United states 6-3 favoring the conservatives. However, this move had been criticized as rushed and unprecedented-with questions being raised on its credibility.  In this article, the author shall analyze the principles and issues that lie at the core of this controversy.

Election Year Dynamics

Under Article II of the U.S. Constitution, the President is empowered to nominate and with the advice and consent of the senate appoint the judges of the Supreme Court. The U.S. Constitution lacks any time sequence for exercising this presidential duty. The vacancy created due to the death of Justice Ginsburg is the second-closest (45days) to an election ever, the only one that occurred this closer was in the 1864 presidential election and President Abraham Lincoln back then delayed the nomination until after he won the re-election.

President Barack Obama’s nomination of Merrick Garland in the year 2016 was blocked on the ground that it was an election year. In March 2016, following the death of Justice Scalia, the Republican-controlled Senate refused to consider Obama’s nomination of Merrick Garland to the court or even grant him a hearing. Senate Majority Leader Mitch McConnell declared that any appointment by the sitting president to be null and void on the ground that the next president was to be elected later that year. McConnell observed that “the American people should have a say in the court’s direction. It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on the president and withhold its consent.”

However McConnell, amidst the Presidential Elections of 2020 promised to bring Trump’s nominee Amy Coney Barrett to a vote.  This dual position taken by McConnell is a classic instance of advancement of political agendas.

Challenges Ahead

Appointment procedures can be unduly influenced by the political or personal considerations of the appointing authorities. Notwithstanding the difficulty of predicting how a nominee will vote, a judge’s prior judicial decisions, writings, and statements may provide some insights into how the nominee will approach particular matters.

Justice Barrett’s past writings on abortion have triggered liberal warnings that the 1973 Supreme Court decisions Roe v. Wade and Doe v. Bolton which legalized abortion nationwide could be overruled. The court in this case favored the argument that prioritized the woman’s reproductive autonomy over the protection of ‘life’ argument, which includes prenatal life as well. The fundamental right to abortion as recognized in Roe has also been upheld subsequently time and again.

Justice Barrett in one of her articles titled Catholic Judges in Capital Cases, observed that euthanasia and abortion take away innocent lives and identified abortion as being ‘always immoral’. Justice Barrett also signed a statement in 2006 opposing abortion on demand. The same statement also mentioned, “It’s time to put an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children.” However it is important to note that overruling of Roe v. Wade will not ipso facto make abortions illegal in United States but will only allow states to set their own laws legalizing, banning or restricting the procedure at any time during pregnancy.

Justice Barrett could cast a decisive vote in a Trump-backed challenge to the Affordable Care Act, also known as Obamacare, on 10 November. In NFIB v. Sebelius the Court rejected a challenge to the constitutionality of the Affordable Care Act with a narrow 5-4 majority. Justice Ginsburg, Justice Barrett’s predecessor and Chief Justice John Roberts voted to uphold Obamacare. Justice Barrett in her article titled Countering the Majoritarian Difficulty wrote that “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power. Had he 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.”

Court-packing can be understood as an effort to manipulate the size of the Court’s membership for partisan ends. The confirmation of Justice Barrett eight days before the election by a partisan 52-48 vote has renewed questions about a possible court-packing attempt by the Democrats post-elections. Democrats certainly will not be able to undo Justice Barrett’s appointment to the Court, but with the expectation of being able to wield power soon, they have stepped up a discussion of “court-packing,” to undermine a 6–3 conservative majority that otherwise may be entrenched for a generation. However, the likelihood of Democrats succeeding with this plan depends on how well they perform at elections.

If the Democrats decide to pursue this strategy it will not be without objections. One such objection can come from Chief Justice John Roberts, who once while addressing the partisan view on the courts pointed out that “we do not have Obama judges or Trump judges, Bush judges or Clinton judges.”  The pursuance of this plan can also be of the ultimate detriment of the institution of the Court and the legitimacy of its decisions


Justice Ruth Bader Ginsburg is one of her writings observed that the Founders of the United States sought to secure the Judiciary’s independence from the political branches of the Government, and thus, the judges’ ability to decide cases impartially. Relying on Chambers v. Florida, Justice Ginsburg pointed out that Court’s function is to stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement.

Justice Barrett will have a decisive vote in some impending and extremely politically sensitive issues like the Affordable Care Act, the issue concerning undocumented immigrants, use of military funding to pay for the border wall and also the litigation on voting in the election, which may include contest the election results. It shall thus be interesting to observe in due course of time how much Justice Barrett can live up to not just the legacy of Justice Ginsburg but also Justice Barrett’s statement from the oath ceremony where she said that “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”

Views are personal.

Image credits: Boston University


Namrata Jeph is currently pursuing law from National Law University, Jodhpur and is a Senior Editor at Economics, Law and Social Sciences Review.

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