Does the Supreme Court Look or Think Like America?

The addition of Amy Coney Barrett to the U.S. Supreme Court will maintain the number of female justices, but the composition of the panel continues to look quite different than the rest of America in gender, race and religion as well as on certain key policy issues.

If she’s approved by the Senate, Barrett is expected to be another conservative voice on a court that’s mostly white, male and Catholic. In an era of increasing questions about systemic racism in the judicial system, the court may find itself out-of-step with the rest of the country if the November election results in a substantial shift to the left.

“Obviously, demography and anything else that shape one’s experience affects how one thinks about the world and thus one’s judging,” said Michael Klarman, a professor at Harvard Law School. “Chief Justice Roberts implicitly denies this when he talks about judges calling balls and strikes, but I think most people acknowledge that a judge’s experience cannot somehow be abandoned when donning robes.”

Some of the issues on which the court may come to be at odds with public opinion include abortion, which 79% of Americans say should be legal, at least under certain circumstances, and upholding the Affordable Care Act, which is viewed favorably by 49% of Americans according to a September Kaiser Family Foundation Health tracking poll, compared to 42% who view the law unfavorably.

“Given the nationwide consequences of the court’s decisions, and the role that the courts play in our system of democratic governance, if the makeup of the Supreme Court fails to reflect any meaningful diversity, the court risks losing legitimacy in the eyes of the wider American citizenry,” said Katherine Franke, a professor at Columbia Law School.

The specific religious background of a justice may not be as much of an issue as the way their views reflect a broader conservative or liberal perspective, according to Sam Erman, a law professor at the University of Southern California. The outlook of conservative Catholic judges is often aligned with those of Evangelical Christians, whereas some Jewish justices have been in sync with politically progressive groups, Erman said.

One place Barrett could have a substantial impact is on the court’s approach to Roe v. Wade. While Chief Justice John Roberts in June provided the crucial vote in a 5-4 decision that invalidated a Louisiana law opponents said would have left the state with just one abortion clinic, the addition of Barrett could swing that vote tally in the other direction. That may mean that additional restrictions on abortions will be allowed by the Supreme Court—or it could open up the court to potentially striking down access to abortions in some states altogether.

Barrett has voiced skepticism about the Affordable Care Act, also known as Obamacare. In a 2017 law review article, she criticized the court’s opinion upholding the law, arguing that it pushed the text “beyond its plausible meaning.” The Trump administration continues to push for the court to strike down the act, with a case scheduled for arguments Nov. 10.

In a blow to conservatives in June, the Supreme Court ruled that the Civil Rights Act of 1964 barred an employer from firing someone simply for being homosexual or transgender. “The answer is clear,” Gorsuch wrote in a landmark 6-3 ruling expanding the law. Gorsuch’s decision, based on the text of the statute, was consistent with the views of a slight majority of the American public, who favor the expansion of LGBTQ rights. Whether rulings such as these survive a more conservative court—or whether the high court carves out exceptions for employers—is one of the chief questions in the coming years.

Ginsburg was one of the five justices to sign onto Obergefell v. Hodges, the seminal 2015 decision that recognized the right to same-sex marriage. It's unlikely that a more conservative court, with Kavanaugh, Gorsuch and perhaps Barrett, will reverse a ruling that is now widely accepted and has led to far-reaching change in American society. Still, the court in coming years may be reluctant to expand the reach of the 14th Amendment's Due Process and Equal Protection clauses, which were the grounds for the court's holding in Obergefell.