The addition of Justice Amy Coney Barrett to the Supreme Court on Tuesday, a week before Election Day, comes as the justices careen through a political gauntlet that includes disputes over voting accommodations that could shape the election outcomes in two battleground states.
Barrett came under intense political pressure almost immediately after taking the oath on Tuesday when a Pennsylvania county asked her to recuse herself from the fight over the state’s mail-in ballot extension.
A similar dispute over an extended mail-ballot due date in North Carolina, another hotly contested state that is seen as must win for President Trump, also awaits.
And on Friday when the justices gather privately to decide what new cases to add to the court’s docket, one of the petitions they’ll consider concerns a Mississippi law that bans virtually all abortions after 15 weeks of pregnancy, which could set up a clash over the court’s landmark 1973 decision in Roe v. Wade.
How — or whether — Barrett participates in any of the matters she will confront in her first week on the job may provide the clearest signals to date about the high court’s direction following the death of Justice Ruth Bader Ginsburg.
The Senate voted 52-48 on Monday to confirm Barrett, making her the first justice in modern history to be confirmed without bipartisan support and underscoring Democratic frustration with the GOP push to confirm her and misgivings about her judicial philosophy.
As the staunch conservative settles into the Supreme Court chambers formerly occupied by the late liberal stalwart Ginsburg, who died from cancer in September, Barrett faces enormous pressure from both ends of the political spectrum, especially over her role in election litigation.
Conservatives are counting on Barrett to cement a 6-3 conservative majority on the court. In the election-related disputes, they will look to her with hopes that she embraces the arguments that Republicans and their allies have advanced in courtrooms across the country during what is the most litigated election in U.S. history.
Republicans have fiercely opposed judicial orders to relax voting restrictions, arguing that such measures have removed critical election guardrails, opened the vote to fraud and unlawfully taken the management of elections away from state legislatures.
Those arguments were largely embraced Monday night by the court’s conservative majority, who voted 5-3 to deny a bid by Democrats to reinstate a six-day extension for the receipt of mail-in ballots in Wisconsin.
Trump said Barrett’s confirmation would be needed prior to Election Day in part so she could be seated in time to rule on voting litigation. He has repeatedly warned, without basis in fact, of the risk of widespread voter fraud this election.
The president’s prior remarks were used against Barrett on Tuesday in a recusal motion filed by the Luzerne County Board of Elections.
The group, one of the parties that has asked the Supreme Court to reject efforts by Pennsylvania Republicans to roll back voting accommodations in the state, said in its recusal motion that Trump’s remarks created at least the appearance of a conflict for Barrett.
Justices are generally permitted to decide for themselves whether or not recusal is appropriate in a given case to avoid an actual or perceived conflict of interest, but already the pressure on Barrett to step back from the case is intense.
“Donald Trump explicitly said he wants Amy Coney Barrett on the Supreme Court to help him get reelected,” said Norm Ornstein, a resident scholar at the conservative American Enterprise Institute.
“It was bad enough that she did a campaign event with him on the White House balcony celebrating her confirmation,” he said. “To turn around now and vote on election-related cases would be the most outrageous breach of ethics, a direct quid pro quo, we have ever seen on the Supreme Court.”
Pennsylvania Republicans returned to the Supreme Court on Friday night in a second effort to roll back the state’s mail-in ballot extension, just days after the court deadlocked on the issue.
They have asked the justices to fast-track the formal review of a major ruling by the Pennsylvania Supreme Court, which held that mailed ballots must be accepted if they arrive by Nov. 6 and aren’t postmarked after Election Day.
Republicans’ latest request came less than a week after the Supreme Court left intact Pennsylvania’s mail-ballot extension with a 4-4 deadlock. The tie vote last week broke largely along ideological lines, with Chief Justice John Roberts joining the court’s three liberals in denying the GOP’s request to halt the state court ruling, while the court’s four most conservative justices indicated they would have granted it.
If the GOP’s latest bid proves successful, it could disenfranchise a number of mail-in voters. The harm would likely fall disproportionately on Democratic presidential nominee Joe Biden’s supporters, who are considered about twice as likely as Trump’s backers to vote by mail.
The Keystone State is a crucial battleground in the 2020 election after Trump won it in 2016 by fewer than 45,000 votes.
Barrett could play a similarly consequential role in a dispute over an extended mail ballot due date in North Carolina. The Trump campaign and top Republican state lawmakers last week urged the justices to reverse lower court rulings that pushed back the deadline for the receipt of mail ballots by six days.
Proponents of the eased restriction argue that North Carolina’s extended deadline is a reasonable accommodation in light of the coronavirus pandemic and anticipated delays by the Postal Service.
At the end of her first partial week of work, Barrett is expected to participate in the court’s regular Friday conference to discuss petitions requesting a review by the Supreme Court. Among them is a dispute over Mississippi’s pre-viability abortion ban, which will also represent a major test for the newly confirmed justice.
The approval of four justices is needed to grant a petition, and the court could announce as soon as Monday whether it has agreed to take up the petition brought by Mississippi Attorney General Lynn Fitch (R).
Fitch is appealing a ruling by the U.S. Court of Appeals for the 5th Circuit. That court sided with challengers to Mississippi’s pre-viability abortion ban, holding that the restriction placed an unconstitutional burden on a woman’s right to terminate an unwanted pregnancy before viability.
A razor-thin 5-4 majority voted to block a Louisiana abortion restriction last term, with Roberts casting the deciding vote alongside Ginsburg and the court’s three other more liberal justices.
But under the newly cemented 6-3 conservative court, Barrett would hold the key vote if she were to join the court’s four more conservative members in deciding future abortion rights cases.