Trump Court pick Amy Coney Barrett's past critiques on Obamacare face scrutiny

Her scholarly writings provide opponents with a paper trail of skeptical comments on the health care law that they lacked with prior Trump nominees Brett Kavanaugh and Neil Gorsuch.

WASHINGTON — Judge Amy Coney Barrett, President Donald Trump’s newly announced Supreme Court nominee, whose appointment could cement a conservative court majority for a generation, is on record criticizing past judicial decisions upholding the Affordable Care Act.

In a 2017 Notre Dame Law School article, Barrett quoted from Justice Antonin Scalia, who protested 2012 and 2015 rulings upholding core provisions of the law and lamented that Obamacare should be renamed “SCOTUScare.”

Barrett’s scholarly writings are giving fuel to Democratic arguments that her appointment could upend health coverage for 20 million Americans. They provide her opponents with a paper trail of comments on the politically salient health care law that they lacked with Trump's prior court nominees Brett Kavanaugh and Neil Gorsuch.

“For Justice Scalia and those who share his commitment to uphold text, the measure of a court is its fair-minded application of the rule of law, which means going where the law leads. By this measure, it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result,” Barrett wrote in the January 2017 article.

Regarding a 2012 ruling upholding the law’s individual mandate by a 5-to-4 margin, National Federation of Independent Business v. Sebelius, Barrett also criticized Chief Justice John Roberts, saying he had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

Barrett would be Trump’s third appointment to the nation’s highest court, and with Republicans in control of the Senate, Democrats say they are clear-eyed about their limited procedural options for halting the appointment. If confirmed, Barrett could take her seat just before an election Trump is already saying he expects to be decided by the Supreme Court.

With the nation experiencing a pandemic that’s already claimed 200,000 lives and left at least 6 million with potential Covid-19-related “pre-existing” conditions, Democrats are focusing on health care to persuade voters that Barrett’s appointment will have a direct impact on their lives. A new lawsuit led by Texas and supported by the Trump administration is coming before the Supreme Court on Nov. 10.

"The American people should make no mistake — a vote by any Senator for Judge Amy Coney Barrett is a vote to strike down the Affordable Care Act and eliminate protections for millions of Americans with pre-existing conditions," Senate Minority Leader Chuck Schumer, D-N.Y., said, describing her as the potential "deciding vote" to invalidate the law.

A Senate Republican aide familiar with the nomination process said it was a "fool's errand to predict how judges will rule" on particular cases, such as the ACA lawsuit, after they're confirmed. The aide, who spoke on condition of anonymity, indicated that Barrett is likely to address the issue during the process.

'ACA supporters should be concerned'

Some legal scholars say Barrett’s past writings indicate sympathy for prior challenges to Obamacare but don’t reveal how she'd rule in the upcoming case, which hinges on a different legal question.

Jonathan Adler, a professor at Case Western Reserve University School of Law and an architect of the 2015 legal challenge to ACA subsidies, said Barrett’s passage evoking “SCOTUScare” was “a fairly straightforward description of the Scalia dissent.”

“Given her embrace of textualism, it might be fair to suggest she found his opinion more convincing than the majority,” he said. “The second indicates some disapproval for the Chief Justice's NFIB opinion and its stretching of the text.”

But Adler said that wouldn’t be inconsistent with believing the pending Texas case should fail.

“Neither tells us much of anything about her views of the current ACA suit, however, as many of us who thought Roberts was wrong in NFIB, and that Scalia was correct in King, believe that Texas should lose the current case," he said in an email, referencing the 2015 case King v. Burwell.

Nicholas Bagley, a professor at the University of Michigan Law School and a critic of recent ACA litigation, said Barrett’s article suggests she would've sided with Scalia in the 2012 case, but said it “doesn't tell us anything about how she'd rule in a case that's significantly weaker.”

Still, Bagley warned not to discount the legal danger Obamacare faces after the death of Justice Ruth Bader Ginsburg, who voted in the majority in both cases involving the law.

“I think ACA supporters should be concerned,” he said in an email. “Not panicked: The lawsuit is weak and the Supreme Court is unlikely to endorse it. But a small risk of a bad thing is worth worrying about.”

Republicans have failed to undo the ACA legislatively, despite controlling Congress and White House for two years of Trump’s administration, and haven’t offered a replacement if the lawsuit succeeds.

“Where is that Republican substitute bill?” Sen. Dick Durbin, D-Ill., asked in a Judiciary Committee hearing this week.

Demand Justice, a progressive group that plans to spend as much as $10 million to build opposition to Barrett's nomination, released an ad Friday warning that if Barrett "were on the Supreme Court, millions of Americans could lose their health insurance."

As a candidate, Trump criticized Roberts for voting to uphold the ACA, tweeting: “My judicial appointments will do the right thing unlike Bush’s appointee John Roberts on ObamaCare.”

“We should be rightly concerned that he’s going to keep his word,” Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee, said during a Thursday hearing.

On Saturday, after Trump officially announced Barrett as his pick, Democrats said her confirmation to the high court would cost millions of people their health care.

"Today, President Trump nominated Judge Amy Coney Barrett to the Supreme Court — a jurist with a written track record of disagreeing with the Court’s decision to uphold the Affordable Care Act," Joe Biden, the 2020 Democratic presidential nominee, tweeted. "Vote like your health care is on the ballot — because it is."

House Speaker Nancy Pelosi, D-Calif., said in a statement that should Barrett be confirmed, "millions of families’ health care will be ripped away in the middle of a pandemic that has infected seven million Americans and killed over 200,000 people in our country."

Heidi Przybyla is an NBC News correspondent.

Sahil Kapur is a senior national political reporter for NBC News.

Allan Smith is a political reporter for NBC News.