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Late yesterday the U.S. Senate voted to consent to the appointment of Judge Amy Coney Barrett to the U.S. Supreme Court.  The vote was straight down party lines and stands as the most partisan Supreme Court appointment in U.S. history with no Democratic Senator voting in favor of her appointment.  The seating of Justice Coney Barrett by President Trump marks the third Justice he has appointed to the Supreme Court in his first term and caps off a bitter battle between Republicans and Democrats over the growing partisan makeup of the Court.  President Trump’s three appointments have tipped the balance of what was previously a 5-4 liberal Court conservative by a decisive 6-3 margin.  And, one does not need to be a judicial scholar to realize Justice Coney Barrett’s replacement of Justice Ginsberg marks an extreme ideological shift in the makeup of the Court.

Many believe the resulting conservative shift will be the hallmark of the Court for the foreseeable future.  However, with three Justices currently over 70 years old the potential for several seats to be vacated in the next four years is a real possibility.  Of these three seats, two are held by conservative Justices, in Justice Alito and Justice Thomas, with 82 year old Justice Breyer holding the third and liberal seat. 

The Democrats also possesses a nuclear option.  Should they take back control of the White House and Congress, some Democrats have mentioned court packing.  Simply put, court packing would allow for the expansion of the Supreme Court from nine Justices to a larger number through the passage of federal legislation.   This would pave the way for Biden, with a Democratic party controlled Congress, to very quickly turn the Court liberal.  Many Americans see court packing as a strategy that should be avoided at all costs, while others feel it is a fair way to rebalance the Court.  It should be noted the Supreme Court has been set at nine Justices since 1869 and court packing with today’s hotly partisan politics may be a politically explosive venture.

What does Justice Coney Barretts’ appointment mean for employers? 

For the foreseeable future all cases that end up before the Supreme Court will have a conservative, pro-employer Court.  During her nearly three years as a judge for the U.S. Court of Appeals for the 7th Circuit, Justice Barrett heard several cases involving employer-employee matters.  While none of these cases were groundbreaking in their outcome, Justice Coney Barrett did favor employers more times than not.  Justice Coney Barrett’s views, as expressed in her prior decisions are far more conservative and supportive of business than her predecessor Justice Ginsburg, who was well known for her pro-employee stance and writings from the bench.  This is obviously good news for employers, especially if the Republican’s lose control of the White House next month.  Moreover, unlikely the Presidential and Congressional elections, unless court packing occurs, this conservative Court could remain in power for decades. 

Brody and Associates regularly advises management on complying with the latest state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.