Is Amy Coney Barrett Joining a Supreme Court Built for the Wealthy?

by Kim Phillips-Fein

Kim Phillips-Fein, a historian at the Gallatin School of Individualized Study at New York University, is the author, most recently, of Fear City: New York’s Fiscal Crisis and the Rise of Austerity Politics and Invisible Hands: The Businessmen’s Crusade Against the New Deal.

Much of the public anxiety about Amy Coney Barrett — judge on the U.S. Court of Appeals for the Seventh Circuit, Notre Dame law professor and Donald Trump’s nominee for the Supreme Court — has focused on the question of abortion, and whether as a believer in originalism and a practicing Catholic she would be likely to vote to reverse Roe v. Wade.

At least as consequential might be her position on the Social Security Administration: She has suggested that an originalist — whose view of the law is rooted in the idea that the duty of judges is to ascertain whether laws reflect the original meaning of the Constitution — might say that it is not clearly permissible given a strict reading of the Constitution. This isn’t to say that she thinks it should or even could be repealed. “Some decisions,” she wrote, “thought inconsistent with the Constitution’s original public meaning are so well baked into government that reversing them would wreak havoc.” But it does indicate that in the area of judicial philosophy, there are many ways to be extreme.

The Supreme Court has at least as significant an influence on questions about national economic life as it does on social issues. Although we don’t usually think of it this way, the decisions of the Supreme Court have the power to affect the quality of the air we breathe, the pay we receive and the conditions under which we work, by determining what kinds of business and industry regulations are constitutional.

Those who share Judge Barrett’s belief in the legal philosophy of originalism are not ideologically monolithic, but most originalist judges are united in a deep skepticism toward the idea of a powerful federal government. Can it determine regulations that shape national economic policy? What kinds of laws can and should be permitted under the rubric of regulating interstate commerce?

With a 6-3 conservative court, the country is at risk of having the few remaining tools that permit some limits on the power of business — like labor unions and environmental legislation — weakened still further. The court’s future decisions could give corporations even more weight and workers less, by blocking potential legislation that might mitigate the impact of unfettered capitalism and staggering inequality.

As a federal appeals judge, Judge Barrett has often ruled in ways friendly to employers. She has joined rulings that stopped a case in which the U.S. Equal Employment Opportunity Commission objected to a company that allegedly assigned workers to particular geographic locations based on race and ethnicity and that limit the scope of laws prohibiting age discrimination.

During the 1930s, similar issues brought Franklin D. Roosevelt’s administration into conflict with the Supreme Court. Many of the early initiatives of the New Deal were rejected as unconstitutional — something the court had done since the early 20th century, acting as a bulwark against Gilded Age social and economic reforms. State laws that tried to set maximum working hours, for example, were rejected by the court as an intolerable restriction on freedom of contract.

Read entire article at New York Times