Amy Coney Barrrett, Librul Commie Traitor, Or Something

Photo of Amy Coney Barrett w:Wikipedia:CSPAN, Public domain, via Wikimedia Commons

Dear butthurt right wing tweeters:

I see that you’re super mad online because the person you thought was there not to do her job but to further your pet agendas did not do what you wanted. You’re obviously quite disappointed, but had you paid attention you might have known better. It was all at your fingertips for your reading pleasure, if you cared to look.

If you are not a butthurt right wing tweeter and wondering what I’m talking about, some on the far right were extremely mad online yesterday because a petition seeking to prohibit Indiana University from requiring students to be vaccinated for Covid-19 was rejected by the librul commie traitor, Justice Amy Coney Barrett.

Antonin Scalia would be so ashamed!

She’s a coward and a traitor!

She’s been compromised!

She’s the biggest disappointment to don a robe since John Roberts!

She was installed on the bench via clever ruse by the Democrats, who feigned opposition to her nomination because they actually wanted her (this one is my favorite)!

There is always a lot of weeping and gnashing of teeth when those who view the court as the enforcement arm of their political agenda don’t get their way from a justice who is supposed to be “on their side.” Sometimes, it is warranted; there are definitely times when members of the Court seem to twist the law to fit a personal belief, but I stand by my assertion that it is the exception, not the norm (except for Alito, but I shall not digress.)

I have my preferences when it comes to jurists, sure. But most of the time, the list of potentials are all people I have never heard of, because I don’t keep up with a who’s who of the federal bench. Most don’t. Instead, they assume that if the president making the nomination is/is not of their preferred political party, then the nominee will/will not be a justice who agrees with their positions and rules how they want. When it doesn’t shake out that way, we get the reactions noted above.

Maybe I have the advantage of studying the law that keeps me back from the edge, but I don’t panic much about SCOTUS appointments – not even when the seat to fill is that of my beloved RBG. I’m also not usually surprised when a justice rules in a way they aren’t “expected” to, or in a way that is not the party line for the ideology they are viewed as representing. The best way to make an informed prediction about how a court will rule is to understand their record of jurisprudence: are they an originalist? Textualist? A believer in a “living constitution”? These considerations, not political stripes, influence the majority of a justice’s decisions.

When Amy Coney Barrett became the forerunner in the race to fill Justice Ginsburg’s seat last fall, I did the yeoman’s work for you. I read through several of Justice Barrett’s decisions from her time on the federal bench and her scholarly legal writings to try to get a picture of what could be expected from her. I spent hours on it, and I wrote a four part series for this very website, tweeted out far and wide for anyone who wanted to know how Barrett might interpret the law.

Those who read that would have learned that sometimes, she rules in favor of criminal defendants, and sometimes she doesn’t, and sometimes she sides with the government over people suing them, and sometimes she doesn’t, and sometimes she sides with restrictions on abortion protesters… I could go on.  In any event, you didn’t even have to read my series; you could have done any amount of digging into her past jurisprudence and realized that where she falls on an issue is influenced by any number of factors, and her political orientation is not a significant one.¹

Justice Barrett is assigned to the seventh circuit, where the petition  for injunction against IU was filed and denied by the lower federal courts. A justice is tasked with reviewing petitions that come out of their circuit and deciding whether to refer to the whole court for consideration or to reject it. Why did Justice Amy Coney Barrett betray her fellow conservatives in their fight against mandating vaccines? Let’s have a look-see at what she was working with:

The case is Klaassen, et al v. Trustees of Indiana University. The “Emergency Application for Writ of Injunction” was filed by IU student Ryan Klassen and 7 of his peers. The petition presents two questions: 1)”Whether heightened scrutiny applies to Indiana University’s Mandate that all IU students take the COVID vaccine in violation of their constitutional rights to
bodily integrity and autonomy and medical treatment choice…” and 2) whether IU has overcome that level of scrutiny. The emergency petition sought to put a halt to the enforcement of the mandate while these questions are litigated.

Note that question one first assumes as a given that the mandate violates the constitution, and the only question is what level of scrutiny should be applied. The lower court adopted their assumption, but denied relief. From the 7th Circuit Court of Appeals decision:

Given Jacobson v. Massachusetts, 197 U.S. 11 (1905), which holds that a state may require all members of the public to be vaccinated against smallpox, there can’t be a constitutional problem with vaccination against SARS-CoV-2. Plaintiffs assert that the rational-basis standard used in Jacobson does not offer enough protection for their interests and that courts should not be as deferential to the decisions of public bodies as Jacobson was, but a court of appeals must apply the law established by the Supreme Court.

Plaintiffs invoke substantive due process. Under Washington v. Glucksberg, 521 U.S. 702, 720-22 (1997), and other decisions, such an argument depends on the existence of a fundamental right ingrained in the American legal tradition. Yet Jacobson, which sustained a criminal conviction for refusing to be vaccinated, shows that plaintiffs lack such a right. To the contrary, vaccination requirements, like other public-health measures, have been common in this nation.

In short, Supreme Court precedent allows for the mandatory vaccination, and the Appeals Court is bound by that precedent. The Circuit Court went further, pointing out that the mandate in this case is even less onerous than that in Jacobson. This mandate covers only students who wish to attend IU; the law challenged in Jacobson applied to all adults in the state. In addition, the Court pointed out that unlike Massachusetts, the University provided for exemptions and accommodations under certain circumstances. Further, the circuit court noted that of the 8 student plaintiffs, only one was ineligible for an exemptions. The exempted students would be required to be tested and wear face coverings, which the plaintiffs also protest, but which the lower court found did not trigger constitutional concern.

The petition for emergency relief subsequently filed with the Supreme Court claims that IU’s policy violates the rules for drugs authorized for emergency use. Such authorization requires that a provider ensure patients know the drug is only approved on the basis of an emergency, that they are informed of the risks and benefits of the medication, that they understand they have the option to refuse the drug, and the consequences of doing so. But the students concede that the university is not the provider and is therefore not subject to the emergency authorization provisions. Nevertheless, they insist the Court should hold them to it because… reasons.

The petition is neither well-reasoned nor well-written.  The petitioners quote an article from the Wall Street Journal comparing their situation to forced organ donation, arguing that the latter would not be permitted without their informed consent (though I am at a loss to figure out how they ascribe the requirement of informed consent to the University rather than to the medical providers who administer the vaccine.) They then draw parallels between themselves and the Tuskegee Airmen:

…IU’s Mandate does not provide for voluntary and informed consent to the taking of the vaccine, a fundamental tenet of medical ethics, which the Tuskegee Institute also failed. Thus, IU’s Mandate is contrary to modern medical ethics.

They do not address the fact that no one is forcing them to receive the vaccine, because no one is forcing them to attend IU.

The specious arguments continue for some 39 pages:

IU’s requirement is contrary to CDC advice because the CDC recommends the vaccine but does not recommend mandates.

IU’s requirement is contrary to Indiana state regulations because there is no state-wide mandate.

No other state university in Indiana is requiring the vaccine.

Covid is really only dangerous to old people, and most IU students are young. The petition cites the statistics showing how low the death rates are for those under 30 as further support for their argument against the mandate. But when they moved on the their next argument – the alleged horrific risks to their health from side effects of the vaccines – they do not acknowledge what a small percentage of those vaccinated experience these serious effects.

I could go on, but I won’t. Instead, let’s look at what Justice Barrett had to consider when deciding whether to grant injunctive relief or to refer the case to her colleagues. The main consideration is the likelihood that cert would be granted on the full petition and reverse the lower court, and the harm that will be suffered without the injunctive relief. The petitioners argue the case is ripe for the Court to tackle because of the current prominence of the mandate issue, referring dismissively to “precedent over a century old.”

Justice Barrett was apparently not convinced. We don’t know exactly why, because she issued no written reason for the rejection nor did any of her colleagues chime in. It could be that she found the arguments presented to be as flimsy as I did and saw no potential merit to the claims. Some on Twitter suggested this was Amy Coney Barrett displaying her pro-life stance. The more cynical among us might suggest Barrett is playing the long game, in that a ruling in favor of the students in this case would set a precedent of protecting bodily autonomy no matter how another person or people are affected, a rationale that could backfire for the pro-life contingent in an abortion case down the road.

I tend to think it is the first; this is simply not a good case. Attendance at IU is not mandatory, the policy is tailored to allow for several avenues of exemption, and the public interest underlying it all is significant.

Unfortunately, those who thought Amy Coney Barrett’s role was to enact their policy preferences rather than carefully consider the applicable law see this as a shocking betrayal – just as they did when she failed to give credence to laughable “election fraud” cases, didn’t vote to dismantle the ACA, and signed on to the Fulton v City of Philadelphia opinion that didn’t go far enough in its sanctioning of religious discrimination against LGBTQ foster parents.

No justice, no matter who appoints her, is always going to do what you want. That is not why they are there. We should be glad when justices follow a good faith interpretation of the law, not the popular stance of their parties. It’s nice when those things align on issues we care about, but only those with a simplistic and immature view of the law expect it to always be so.

Instead of being reassured about objectivity, folks who don’t know their mandamus from a habeas corpus are calling for the removal of a jurist for “getting it wrong.” That’s fine; Amy Coney Barrett is appointed for life. She doesn’t have to care.

And that is the beauty of the whole thing.

1. This is not to suggest that there is never interplay between how a justice approaches the law and their ideological bent; originalism is typically consistent with what conservatism purports to be. But for most justices, it is not the overriding factor.