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U of U law professor on Barrett nomination, future of Supreme Court

Posted at 9:06 PM, Sep 27, 2020

SALT LAKE CITY — If President Donald Trump's nominee to the Supreme Court is confirmed by the Senate, it could mark one of the largest shifts in the court's ideology in almost 30 years.

"I think she is going to apply the law rather than make the law," said Paul Cassell, a professor at the University of Utah's S.J. Quinney College of Law and a former federal judge. "I think in some ways that's going to mean a more modest role for the Supreme Court."

Cassell clerked for former Justice Antonin Scalia when Scalia was a judge in the D.C. circuit.

Amy Coney Barrett, who Trump nominated Saturday, also clerked for Scalia when he was on the Supreme Court, and she models a lot of her jurisprudence off of Scalia's style and image.

"She is in the tradition of Scalia," Cassell said.

Barrett is what those in the legal community call a 'textualist.'

"She’s going to look at constitutional and statutory issues and try to decide, 'What does the text mean?'" Cassell said. "I think she’s going to try and determine what the lawmakers or the constitution drafters originally intended and apply that original meaning of the document.”

Barrett filling the seat of Justice Ruth Bader Ginsburg, if confirmed, could represent one of the largest shifts in judicial ideology in the court since the replacement of liberal powerhouse Thurgood Marshall with Justice Clarence Thomas in 1991.

But Cassell says Barrett's addition doesn't necessarily equate to a major ideological change in the court.

“Many of the issues the Supreme Court looks at are not ideological," he said. "So I don’t think it’s going to make a seismic shift in what the Supreme Court does.”

Barrett's nomination has sparked social backlash across the country — including here in Salt Lake City where protesters demonstrated their opposition Saturday.

Many have said her confirmation to the Supreme Court would likely lead to the end of the Affordable Care Act, as well as the eventual overturn of the landmark abortion rights case Roe v. Wade. But Cassell disagrees.

“I don’t think we are going to see any radical shifts in jurisprudence either on statutory issues like the Affordable Care Act, or constitutional issues like Roe v. Wade," he said. "Perhaps over time, but I certainly think there aren’t going to be any abrupt shifts in the near future."

Cassell said in the long run, Barrett's nomination — and likely confirmation — will have little affect on the legacy and social legitimacy of the Supreme Court.

“I think they're going to see that Judge Barrett — if confirmed, Justice Barrett — is a very capable judge," he said. "The court will continue on as it always has deciding issues based on the law rather than personal preference.”

Barrett's confirmation hearing in the Senate Judiciary Committee is set to being Oct. 12. At this point, Senate Republicans have the votes needed to secure her nomination. That won't happen without major pushback from Democrats who are expected to use a wide range of procedural rules to disrupt and slow the process.