“When I wrote, and this was as a law professor, about those decisions, I did critique the statutory interpretation of the majority opinions. And as I’ve mentioned before, my description of them was consistent with the way that Chief Justice Roberts described the statutory question,” Barrett said.
“But I think that your concern is because I critiqued the statutory reasoning, that I’m hostile to the ACA, and that because I’m hostile to the ACA, that I would decide a case a particular way,” she continued.
“And I assure you that I am not. I’m not hostile to the ACA. I’m not hostile to any statute that you pass,” she added:
And the cases on which I commented — we can talk at another time, I guess, about the context, the distinctions between academic writing and judicial decision making — but those were on entirely different issues. So to assume that because I critiqued the interpretation of the mandate or the phrase established by a state means that on the entirely different legal question of severability I would reach a particular result just assumes that I’m hostile. And that’s not the case. I apply the law. I follow the law. You make the policy.
Barrett has maintained that judges are not lawmakers and, in the past, criticized Roberts’ decision in
NFIB v. Sebelius, “in which he rewrote the statute to save it.” She “never said that the statute should be overturned,” as Breitbart News detailed.
Even prior to the start of this week’s hearings, Democrats have been sounding the alarm, warning that Justice Barrett would, indeed, jeopardize the future of Obamacare and, specifically, those with pre-existing conditions. Progressives point to the upcoming case set to come before the Supreme Court on November 10th, although the case
deals primarily with the individual mandate — not pre-existing protections.