Professor Barrett analyzed portions of Chief Justice Roberts' controversial opinion in the ObamaCare case. Her critique of Roberts' objectively controversial opinion is not controversial; it is and remains reasonable and mainstream.
In fact, seventy-five percent of Chief Justice Roberts' colleagues on the Supreme Court refused to join all portions of his opinion in the ObamaCare case.
Nevertheless, Professor's Barrett's academic analysis did not constitute an exercise of judicial power. Moreover, the Judiciary has no power to legislate. The power to craft healthcare policy is legislative which is reserved to Senator and Members of Congress.
The first and most important words in the Constitution are found in Article I, Section 1: All legislative Powers herein granted shall be vested in a Congress of the United States. Judge Barrett's judicial philosophy embraces these words and understands the limits of judicial power. She understands that a judge has zero legislative power because all federal legislative power is vested in Congress.
Senators on the Judiciary Committee have alleged that a Justice Barrett would take away our health care. They are wrong.
Judge Barrett has not been nominated to serve as Health Care Czar but as one of nine justices on the U.S. Supreme Court. So, what are Senators talking about?
They are primarily referring to a 2017 law review article where then law professor Amy Coney Barrett rightly criticized Chief Justice Roberts’ political attempt to re-write the Obamacare law.
Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute,” (and she was absolutely right),
Roberts' “approach is at odds with the statutory textualism to which most originalists subscribe,” (she's right again), and
“it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result.” (amen to all that).
Amy Coney Barrett, Countering the Majoritarian Difficulty, 32 Const. Comm. 61 (2017) (emphasis added); available at https://conservancy.umn.edu/bitstream/handle/11299/183482/4%20-%20Barrett.pdf?sequence=1&isAllowed=y
Barrett’s view is not only constitutionally correct, it was essentially shared by no less than four Supreme Court Justices in the Obamacare case. Moreover, sections of Roberts’ opinion were so poor that they were rejected by all but two of his colleagues on the Court. In fact, 75% of his colleagues refused to join all portions of his opinion!
It is beyond dispute that Roberts’ opinion was and remains heavily criticized, especially among the academics, which was the role held by then Professor Barrett when she analyzed Robert's "opinion." Moreover, Barrett said nothing controversial in recognizing the indisputable fact that Roberts' opinion was a mess.
Nevertheless, desperate for a political line of attack, Democrat Senators see Barrett’s recognition of Roberts’ failure as an opportunity to accuse her of “opposing health care.”
That’s like saying those who oppose socialism want to decrease Americans’ standard of living. The opposite is true. Obamacare was a huge step toward socialized medicine; it was and remains a big fat failure. Schumer and his fellow legislators have a moral duty to fix it.
Obamacare did to health care what only socialism can do; it: (1) drove health care premiums through the roof, (2) increased the cost of co-pays and deductibles, and (3) damaged the quality of health care for all Americans.
Obamacare must be fixed, but it will be fixed by legislators – not judges. Barrett understands this constitutional fact and her criticism of Roberts’ had nothing to do with health care policy, but everything to do with the proper constitutional use of judicial and legislative power – something Democrat Senators and their liberal "legislators" on the bench know nothing about.
American get it. We aren’t worried about a mother of seven children, who happens to be a judge, taking away our healthcare. A Justice Barrett would be limited to deciding cases and keeping activist judges and activist legislators, like Senate Democrats, within their Constitutional lanes. Perhaps that is their real concern.