The anti–Amy Coney Barrett strategy

Americans did not hear from Judge Amy Coney Barrett until the end of day one of her U.S. Supreme Court confirmation hearing on Monday. As members of the Senate Judiciary Committee delivered customary, 10-minute opening statements, the judge sat attentive and upright in a deep pink sheath dress and a string of pearls. Her eyes occasionally attested to a smile behind her black mask.

When she finally got her chance to address the committee, the 48-year-old started by talking about her kids, nearly all of whom sat masked in a row behind her. She said of her family that “nothing is more important to me.”

Barrett went on to speak about her background, her time clerking under Judge Laurence Silberman and Justice Antonin Scalia, and her own adherence to originalism—the legal philosophy that judges should interpret the Constitution according to the original meaning of the text.

What Barrett’s opening statement did not mention was how she would hypothetically rule in future cases if confirmed to the high court. Democrats especially have made much about one case the Supreme Court is set to hear Nov. 10: California v. Texas, the case that will determine the future of former President Barack Obama’s healthcare law, the Affordable Care Act.

“Potentially this justice is going to destroy the Affordable Care Act,” Sen. Richard Blumenthal, D-Conn., told a gaggle of reporters on his way into the hearing. “Our strategy is to reveal this judge for what she is.”

In their opening statements, Democrats remained laser-focused on how a conservative majority, bolstered by Barrett’s nomination, might overturn the Affordable Care Act. They accused Republicans of attempting to ram through a Supreme Court nomination during a pandemic instead of passing COVID-19 relief efforts. Democrats illustrated their statements with posters of constituents suffering from various health issues.

Some Democratic lawmakers took aim at Barrett for a 2017 article she wrote criticizing aspects of the 2012 NFIB v. Sebelius decision that upheld the Affordable Care Act as constitutional. In the article, Barrett disagreed with Chief Justice John Roberts’ majority opinion, which said the law was constitutional because it fell under Congress’ ability to levy taxes. The ruling held that the law’s individual mandate, the requirement that people purchase health insurance coverage or pay a fine, counted as a tax. Barrett disagreed.

“Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” she wrote. “Had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress’s commerce power.”

In 2017, a Republican-controlled Congress repealed the individual mandate. In December 2018, a federal judge in Texas ruled that without the individual mandate, the healthcare law was unconstitutional in its entirety. The law remains in place while the Supreme Court weighs California v. Texas.

Sen. Chuck Grassley, R-Iowa, on Monday defended Barrett’s position on Sebelius as “mainstream.” “I know a tax when I see one and this wasn’t a tax,” he said.

Thanks to the COVID-19 pandemic, health took center stage in other ways throughout Monday’s hearing. During Justice Brett Kavanaugh’s 2018 confirmation hearing, a steady stream of onlookers flowed into the hearing room. Reporters sat shoulder to shoulder alongside folding tables at the back of the room. On Monday, the room held only about 50 people who followed strictly enforced social distancing protocols. Most lawmakers wore masks except while speaking.

In 2018, protesters disrupted Kavanaugh’s hearing with chants and signs, prompting Capitol Hill Police to arrest hundreds throughout the week. Proceedings stretched long into the afternoon. This time around, the hearing chugged along uninterrupted except for a brief lunch break and the occasional technological glitch during video calls with lawmakers who elected to appear virtually.

Most who called in were Democratic senators, including vice presidential nominee Sen. Kamala Harris, D-Calif., who joined from her office. But GOP Sen. Thom Tillis of North Carolina also called in remotely after testing positive for the coronavirus just 10 days ago. Tillis attended a White House Rose Garden event announcing Barrett’s nomination and tested positive soon after. The other lawmaker who tested positive, Sen. Mike Lee, R-Utah, chose to appear in person at the hearing. He said he had been cleared by a doctor to be present, and did not wear a mask during his opening statement. He did not say whether he had recently tested negative for a COVID-19.

Outside the Capitol, crowds of protesters in rain gear braved intermittent showers and chilly weather to chant outside some of the Senate entrances. But by the time the lunch break had rolled around, the crowd had largely dispersed.

Conspicuously absent Monday were Democratic references to Barrett’s religious views. Republicans drew attention to this tactical about-face: During Barrett’s 2017 confirmation hearing for her seat on the 7th U.S. Circuit Court of Appeals, ranking member Sen. Dianne Feinstein, D-Calif., and Sen. Dick Durbin, D-Ill., interrogated Barrett about her Roman Catholic faith.

Feinstein’s stated concern that Barrett’s religious convictions would prevent her from judging impartially (“The dogma lives loudly within you,” Feinstein said) sparked furor on the right. Republicans pointed out the line of questioning was tantamount to a religious test for judicial nominees, something the Constitution forbids.

Barrett made her position clear in 2017: “It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law.”

This week, Barrett was likely prepared to do so again: When President Donald Trump announced her nomination to replace now-deceased Justice Ruth Bader Ginsburg, some media outlets attempted to compare Barrett’s involvement in a charismatic Christian group to the dystopian novel The Handmaid’s Tale.

Carrie Severino, president of Judicial Crisis Network, told me around the time of Barrett’s nomination that people would be watching to see whether lawmakers participate in “a replay of the anti-Catholic smears.”

However, Democrats sidestepped the questioning Monday.

Before departing for Ohio, Democratic presidential nominee Joe Biden told reporters that Barrett’s faith was not relevant to the proceedings: “Her faith should not be considered. … No one’s faith should be questioned.”

It remains to be seen whether that strategic discipline will hold during the remaining days of the hearing. After today’s opening statements, Blumenthal told reporters he remained concerned about what Barrett’s nomination would mean for abortion and gun control. His words may preview more lines of questioning about Barrett’s pro-life views and how she could rule on cases that would impact Roe v. Wade, which legalized abortion nationwide.

Republicans argued that Barrett ought to enjoy bipartisan support. “The Senate used to recognize that exceptional qualifications were all that was required for a spot on the court,” said Sen. John Cornyn, R-Texas. He told Barrett, “I do remain concerned about some of the earlier attacks on your faith. … There is no religious test to serve on the Supreme Court.”

On Tuesday and Wednesday, members will be able to question Barrett for two rounds of 30- and 20-minute increments. On Thursday, the last day of the hearing, both parties will hear from witnesses.

Senate Judiciary Chairman Lindsey Graham, R-S.C., called Barrett’s committee vote a foregone conclusion, barring something unexpected: “All Republicans will vote yes and all Democrats will vote no.”