Amy Coney Barrett, the Supreme Court and the Affordable Care Act: what the record says

Democrats have complained loudly about the unfairness of an election-year Supreme Court selection for President Donald Trump when President Barack Obama was denied the same opportunity.

But now that Trump has named a candidate, they’re also worried about her positions on the Affordable Care Act, Obama’s signature health care law. 

Joe Biden, Obama’s vice president and now the Democratic presidential nominee, spoke about it in remarks he made on the Supreme Court on Sept. 27. 

"It should come as no surprise that President Trump would nominate Judge Amy Coney Barrett," Biden said. "She has a written track record, disagreeing adamantly with the Supreme Court’s decision to uphold the ACA. In fact, she publicly criticized Chief Justice Roberts’ opinion upholding the law eight years ago."

We decided to look into the evidence. We found that Barrett hasn’t written a lot about the Affordable Care Act, but what she has written has been decidedly negative about the Supreme Court’s 2012 ruling upholding its constitutionality. 

Her most extensive writing on the Affordable Care Act that we found was a 2017 book review titled, "Countering the Majoritarian Difficulty." The book review focused on judicial restraint and when courts should invalidate laws passed by legislatures.

Barrett’s writing suggests sympathy with Supreme Court justices who are both "originalists" and "textualists," best exemplified by Justice Antonin Scalia, a conservative icon, who objected to the majority view that upheld the Affordable Care Act in two cases: the National Federation of Business (NFIB) vs. Sibelius and and the later King vs. Burwell. 

Those cases, upheld by Chief Justice John Roberts and the court’s left-leaning justices, found the law constitutional because it ultimately depended on the federal government’s taxing authority to compel people to buy insurance (called the individual mandate). Scalia argued that was wrong because, among other things, the law itself called the tax a penalty.

Barrett’s review said that Roberts "has not proven himself to be a textualist in matters of statutory interpretation."

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Her writing also suggested she sided with Scalia: "To the extent that NFIB v. Sebelius expresses a commitment to judicial restraint by creatively interpreting ostensibly clear statutory text, its approach is at odds with the statutory textualism to which most originalists subscribe. Thus Justice Scalia, criticizing the majority’s construction of the Affordable Care Act in both NFIB v. Sebelius and King v. Burwell, protested that the statute known as Obamacare should be renamed ‘SCOTUScare’ in honor of the court’s willingness to ‘rewrite’ the statute in order to keep it afloat." 

The Washington Post cited an interview with Barrett in 2015 on the radio program "On Point," in which Barrett said of the decision that "it’s clearly a good result that these millions of Americans won’t lose their tax subsidies," but "the dissent has the better of the legal argument." (We were unable to find a transcript or recording of the complete interview.)

When President Trump nominated her as his selection to replace the late Justice Ruth Bader Ginsburg, Barrett noted her close ties to Scalia and his judicial approach, calling him a mentor with an "incalculable influence" on her life and alluding to a textualist approach. 

"His judicial philosophy is mine, too: a judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold," she said.  

Finally, other liberal groups pointed to a letter Barrett signed along with many Catholic clergy, religious and legal experts that objected to the Obama administration’s policies on birth control and the Affordable Care Act. The letter argued that the administration was infringing on Catholic institutions’ religious liberty by requiring them to accommodate their employees’ access to contraception as part of health insurance.  

We reached out to the White House and the Trump campaign, but did not hear back.

Biden said that Barrett "has a written track record, disagreeing adamantly with the Supreme Court’s decision to uphold the ACA. In fact, she publicly criticized Chief Justice Roberts’ opinion upholding the law eight years ago."

The track record we found is not very lengthy, and it is more academic than "adamant." But it is there, and it strongly suggests Barrett would have sided with Scalia over Roberts in finding the Affordable Care Act unconstitutional.  

We rate the statement Mostly True.