Just how bad? That’s difficult to say.
President Donald Trump announced Barrett’s nomination on Saturday. With a quick Senate confirmation, she could be on the bench Nov. 10, when the court plans to hear California v. Texas, a lawsuit calling on the justices to wipe the Affordable Care Act off the books.
And although Barrett hasn’t said a lot about the health care law, her one major comment came in a 2017 law review article, when she said a previous decision upholding the law “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
The author of that ruling was Chief Justice John Roberts, who joined the four liberals in allowing most of the program to stand. It’s a pretty clear sign that, had Barrett been on the bench then, she would have voted with the other Republican-appointed justices and said Obamacare was unconstitutional.
But in predicting how Barrett would approach this challenge, there is one complicating factor. Most experts consider the new case, which comes from a group of Republican state officials and has the backing of the Trump administration, to be a lot weaker.
Finding a respectable legal expert who will vouch for it on the merits is nearly impossible. Before the death last week of Justice Ruth Bader Ginsburg, most informed observers expected the case to fail and possibly to fail big, with some and maybe even most of the other conservative justices joining Roberts and the liberals in turning it away.
But California v. Texas is coming before the Supreme Court because three federal judges, one from a federal district in Texas and two on the U.S. Court of Appeals for the 5th Circuit, already found its logic compelling. All three are Republican appointees, which almost certainly helps explain why they ruled as they did. Obamacare...