9 upcoming Supreme Court cases where Amy Coney Barrett could be the deciding vote

Jacob Shamsian
·13 min read
amy coney barrett trump white house ceremony
President Donald Trump and Amy Coney Barrett stand on the Blue Room Balcony after her confirmation vote passed in the Senate. AP Photo/Patrick Semansky
  • Amy Coney Barrett was confirmed to the Supreme Court this week, giving conservatives a 6-3 majority.

  • That means that conservatives will have wider latitude in making major decisions, and can sideline Chief Justice John Roberts, who has occasionally sided with more liberal justices to deliver rulings.

  • It also means that fraught issues like abortion, healthcare, and LGBTQ civil rights, are now open to major rulings from the more conservative justices.

  • Barrett's previous writings suggest she could make important decisions in forthcoming cases about the environment, and whether the federal government can help scam victims.

  • Visit Business Insider's homepage for more stories.

Justice Amy Coney Barrett's elevation to the Supreme Court on Monday brings its perceived conservative majority up to 6-3.

It's a rightward lurch for the judicial branch. When Justice Ruth Bader Ginsburg was on the bench, Republican appointees had a 5-4 majority, meaning the four justices thought of as liberal had to persuade just one of the conservatives over to their side for rulings.

Since Justice Brett Kavanaugh replaced perennial swing Justice Anthony Kennedy on the bench in 2018, Chief Justice John Roberts has occasionally played the role of swing voter, going against the other conservative justices on some issues while joining them on most others.

But now, if Barrett largely sides with the conservative bloc as expected, Roberts' swing vote is effectively nullified. The other conservative justices — Kavanaugh, Neil Gorsuch, Samuel Alito, and Clarence Thomas — could have a 5-4 majority without him.

Here are the most consequential forthcoming Supreme Court cases and issues where Amy Coney Barrett could be the deciding vote.

Election-related cases are expected to dominate the next couple of weeks.

Pennsylvania drop box
A Pennsylvania voting drop box. Mark Makela/Getty Images

In justifying his decision to nominate Barrett so close to the 2020 election, President Donald Trump suggested he wanted to ensure the Supreme Court wouldn't be deadlocked for major voting-rights decisions.

There are a number of lawsuits over state voting rules that have already gone to the Supreme Court, with more to come. The most urgent regards the swing state of Pennsylvania, where Roberts sided with the three liberal justices, leaving the court tied at 4-4. In that case, the decision defaulted to a lower court ruling that permitted election officials to count ballots that arrived three days after November 3.

Already, the Pennsylvania Republican Party has asked the Supreme Court to hear the case again and invalidate ballots that arrive in the mail after Election Day. Even without Roberts, the Republican-appointed justices could have a 5-4 majority in that case and disqualify a number of mail-in votes. The court indicated it could revisit the case after Election Day.

Numerous other cases are expected to go to the Supreme Court in the coming days as the Democratic and Republican parties fight over voting rules that have shifted due to the coronavirus pandemic.

The court will hear a major Obamacare-related case a week after Election Day.

Barrett
Barrett at her confirmation hearings. Anna Moneymaker/Getty Images

On November 10, the Supreme Court will hear another case seeking to overturn the Affordable Care Act. In 2012, Roberts sided with the four liberal justices on the court to largely save it.

In this new case, California v. Texas, Texas and several other states are arguing that the entire ACA should be invalidated since Congress voted in 2017 to gut the individual mandate, a key component of the wide-ranging healthcare law. The Trump administration has also supported overturning the ACA in the court fight, as Republicans had failed to do so in Congress when they controlled both chambers before the 2018 midterms.

In the fight over Barrett's confirmation, Democrats pointed to the ACA as the chief reason they opposed her confirmation. Also known as Obamacare, the law, passed in 2010, offers health insurance for more than 20 million Americans and forbids insurers from discriminating against people with preexisting health conditions.

Trump has promised to only nominate justices who would overturn the legislation. In her confirmation hearings, Barrett refused to say how she might rule in the case.

But Daniel Goldberg, the legal director of the left-leaning judicial reform group Alliance For Justice pointed out that, in 2017, Barrett criticized Roberts' decision in the 2012 healthcare case.

"She did nothing at her confirmation hearings to alleviate the concerns of the American people that, in the middle of the pandemic, their access to healthcare is seriously at risk," Goldberg told Business Insider.

There are 16 abortion cases in the pipeline to the Supreme Court.

abortion protest supreme court
Abortion rights demonstrators rallying outside the Supreme Court in March. AP Photo/Jacquelyn Martin File

Trump, after taking five different positions on abortion over the course of three days during the 2016 election, later pledged to only appoint justices who would overturn Roe v. Wade.

The landmark 1973 ruling established the legality of abortion nationwide, and conservatives have fought in the decades since to overturn it.

In the years that conservatives have held a majority on the bench, the Supreme Court has opted instead to erode Roe's protections and allow state laws to limit abortion access.

As Business Insider's Kimberly Leonard has reported, there will soon be plenty of opportunities for the Supreme Court to revisit abortion laws. Sixteen abortion cases are in the pipeline.

Anti-abortion advocates have pinned their hopes on Barrett as a justice who will vote to overturn Roe v. Wade once and for all, steamrolling Roberts, who has occasionally sided with the more liberal justices on abortion decisions.

"It's an opportunity for the new six to three conservative majority to either expressly overturn Roe v. Wade, or continue to seriously erode it," Goldberg said.

If Biden wins the presidency, his climate proposals may fail at the Supreme Court.

supreme court worker snow environment
A worker clears snow from the steps outside of the U.S. Supreme Court in Washington, U.S., November 15, 2018. REUTERS/Leah Millis

One of Democratic presidential nominee Joe Biden's signature issues is climate change. And if he wins the presidency, Goldberg expects the Supreme Court to support Republican attempts to challenge his climate protections in court.

"Almost every single rule by the Obama administration was challenged in court, and I imagine it can happen again in a Biden administration," Goldberg said.

The Supreme Court has generally been too divided to make sweeping climate change decisions, according to The Guardian.

But Trump's appointees — Gorsuch, Kavanaugh, and now Barrett — have signaled in their rulings that they believe federal agencies should have limited powers to enact environmental safety measures. Republicans — largely state attorneys general — have used that philosophy to try to overturn the Obama administration's climate rules. With Barrett now on the Supreme Court, Goldberg predicts the powers of the Environmental Protection Agency will be curtailed.

In one case that could soon come before the high court, more than 20 states are challenging the Trump administration's weaker vehicle pollution standards, The Guardian reported. The case is currently tied up in an appeals court, and may be repealed depending on who wins the White House in November, and what the appeals court decides.

The Supreme Court will soon hear a case over same-sex couple adoption.

Jim Obergefell outside the Supreme Court in Washington in 2015.
Jim Obergefell outside the Supreme Court in Washington in 2015. Andrew Harnik / AP

A major LGBTQ civil rights case, Fulton v. City of Philadelphia, is scheduled to be heard on November 4, the day after the election.

The court will decide whether the city of Philadelphia violated religious liberty rights when it cut ties with Catholic City Services, an adoption agency that refuses to place children with same-sex couples.

Becket Law, the law firm representing Catholic City Services, cites the teachings of the Catholic Church for that policy.

"As part of the Catholic Church, however, the agency can't endorse same-sex or unmarried couples as agency partners serving foster children in need," the firm says on its website. "Instead, Catholic Social Services will help these couples find another agency that can partner with them."

In Obergefell v. Hobbes, in 2015, then-swing Justice Anthony Kennedy sided with the then-four liberal justices to establish the legality of same-sex marriage nationwide.

Since then, the only major LGBTQ rights case the court has heard was Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in 2018, over a baker who refused to decorate a cake for a same-sex couple. In that case, the court delivered a 7-2 decision sidestepping the issue of whether the baker illegally discriminated against the couple, and instead ruled based on procedural grounds.

With Barrett, Goldberg said, the conservatives on the court now have a clear majority to rule against LGBTQ civil rights. Advocates are especially wary of Barrett because she's given numerous paid speeches to Alliance Defending Freedom, a conservative legal group that's been on the anti-LGBTQ side of both Obergefell and Masterpiece Cakeshop.

"I think it's pretty clear where Amy Coney Barrett stands with respect to equality for LGBTQ Americans," Goldberg said. "Her Writing has made that clear, [and] she certainly did nothing to alleviate the concerns of millions of people across the country that she is somebody who thought Obergefell was wrongly decided."

In this case, the court will also revisit the 1990 decision Employment Division Department of Human Resources of Oregon v. Smith, which forbade a religious exemption for general law. With Barrett's confirmation, there would be five votes to overturn it, according to UCLA Berkley Law School dean Erwin Chemerinsky.

"Now, though, conservatives favor such exemptions, and there well may be five votes to overrule Employment Division," Chemerinsky wrote in the American Bar Association Journal, adding that doing so would "dramatically expand the protection of free exercise of religion, including as a basis for an exemption from anti-discrimination laws."

Barrett has made her position clear on the federal government's ability to help citizens who are scammed.

Money scam
A venture capitalist shared three rules to avoid getting scammed by investors. Visoot Uthairam/Getty Images

On the docket for the next Supreme Court term is a case called AMG Capital Management v. Federal Trade Commission. The former is challenging the ability of the FTC, a federal agency, to seek restitution on behalf of people who have been defrauded by corporations and fraudulent financial institutions, according to Goldberg.

While Barrett was on the Seventh Circuit court of appeals, she heard a similar case and ruled to strip the FTC of that power.

"This is a power that the FTC has utilized for decades to recover billions of dollars on behalf of consumers," Goldberg said. "This is just one example of where she has already made clear her contempt for an act of Congress, put in place to protect consumers."

The Chamber of Commerce and the National Retail Federation filed a friend of the court brief in support of AMG Capital Management's petition, arguing that "The FTC's interpretation of the statute imposes unwarranted costs and uncertainties on businesses and the public."

The Supreme Court will soon hear another case over the legality of independent federal agencies.

Elizabeth Warren
Sen. Warren questions the head of the Consumer Financial Protection Bureau in 2014. Chip Somodevilla/Getty Images

Republicans were furious at Roberts this summer when he wrote a majority opinion that upheld the existence of the Consumer Financial Protection Bureau. The GOP largely opposed the creation of the agency in 2011, believing it to be unconstitutional because it exists largely outside of presidential control.

In that case, Roberts was backed by the other four conservative justices, ruling that the agency, which monitors consumer protection in financial services, would be allowed to exist, but that the president may have wide latitude in deciding whether to fire the person in charge of it.

But the GOP will have another shot against independent federal agencies this term, with Collins v. Mnuchin, according to Goldberg.

The case challenges the authority of the Federal Housing Finance Agency, which has a similar structure to the Consumer Financial Protection Bureau. With Barrett on the court, and her record against sweeping federal agency powers, Goldberg worries the other justices will ditch Roberts and join her in striking down independent federal agencies altogether.

"This could have huge implications beyond just this one agency," he said. "It could be an opportunity to attack independent regulatory agencies writ large, like the FTC or the Federal Reserve."

Presidential powers when it comes to immigration are on the docket.

trump border wall
U.S. President Donald Trump waves as he tours a section of new U.S.-Mexico border wall built in San Luis, Arizona, U.S., June 23, 2020 Carlos Barria/Reuters

The Supreme Court has thus far shied away from issuing major rulings on Trump's immigration policies. Most of their decisions, according to Shoba Sivaprasad Wadhia, the director of the Center for Immigrants' Rights Clinic at Penn State Law, have been issued in the "shadow docket."

"Some of the court's most significant shadow-docket rulings have occurred in immigration cases, and by and large, these rulings have favored the Trump administration, often at the expense of marginalized immigrants," Wadhia wrote on SCOTUSblog.

It's not always clear why the Supreme Court has issued so many of those opinions on the shadow docket, which comprise rulings with unsigned opinions, and do not always establish a precedent. But with Barrett on the bench, the Supreme Court will have the chance to make a significant immigration-related ruling later this year.

The Trump administration is facing a lawsuit over whether it may use military funds to build a border wall with Mexico, and the Supreme Court may deliver a ruling that outlines the scope of a president's power to establish immigration policy without the support of Congress.

The Supreme Court has also agreed to hear a case on whether the Trump administration can force asylum-seekers to remain in Mexico until their applications have been reviewed and approved, reversing a previous policy that allowed them to apply for asylum in the US.

The Supreme Court will hear a case on whether to count non-citizens while changing House districts.

census posters for census 2020
Ted S. Warren/AP

This year's (much-fraught) census will allow the House of Representatives to allocate and draw borders for its districts next year.

In deciding the numbers, the Trump administration's Commerce Department, which runs the census, has fought to omit non-citizens living in the United States, which would allocate fewer districts in states with more undocumented residents or people in the immigration system. The Supreme Court is expected to hear the case on November 30.

In September 2019, the Supreme Court ruled on a different regarding the census, on whether the census may ask about someone's citizenship status. In that case, Roberts was the key justice in issuing a complicated ruling that ultimately delayed the issue, permitting the Commerce Department to return to the court if it came up with a different legal reasoning.

Barrett's views on the census are less clear than her views on other issues. But given that Roberts was pivotal in the last census case, her role on the court could shift the ultimate ruling.

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