- On Monday, Amy Coney Barrett was officially sworn in as the new justice on the Supreme Court, ending a highly contentious partisan battle just a week before the election.
- In the weeks following the election, the new justice is set to hear several landmark cases, including the most recent challenge to the Affordable Care Act (ACA) and another lawsuit that involves LGBTQ discrimination protections.
- Many critics have expressed concerns that Barrett will push the court to overrule the ACA and try to roll back LGBTQ protections based on her previous public statements and personal views.
- As soon as the end of this week, the Supreme Court will also decide whether or not to hear two election-related cases regarding mail-in ballots extensions in key battleground states.
Barrett Appointed to Supreme Court
The Senate officially approved the nomination of Amy Coney Barrett to the Supreme Court on Monday with a vote of 52 to 48.
The decison fell almost entirely along party lines, and though her nomination was hotly contested, this outcome was largely expected.
Sen. Susan Collins (R-Me.) was the only Republican to vote against the appointment. No Democrats voted to confirm Barrett, marking the first time in 151 years that not one member of the minority party voted to confirm a justice.
The confirmation marks the end of the historic, lightning-fast nomination process defined by partisan divisions. Democrats repeatedly accused their Republican colleagues of hypocrisy for breaking the precedent they themselves set when they blocked President Barack Obama’s Supreme Court nomination ten months before the 2016 election.
That decision was made under the premise that the nomination came too close to the election and that the next president should get to pick the nominee.
Now, with just seven days to go before the election, Republicans have their new Supreme Court justice, as well as a solid conservative majority on the highest court for the first time since the 1930s.
Here’s a look at what happens next.
Affordable Care Act
Judge Barrett is being seated right as the court is scheduled to hear some highly consequential cases. Arguably the most significant is the latest challenge to the Affordable Care Act (ACA), also known as Obamacare. The court will begin hearing oral arguments on starting Nov. 10, just one week after the election.
With Barrett assuming her role on the bench right as the court is set to hear the landmark case, many expressed concerns that she could still sway the court to get rid of the ACA, thus leaving more than 20 million Americans without health insurance during a pandemic.
The new justice has publicly criticized the Supreme Court decision that upheld Obamacare as constitutional. In a 2017 article, she argued that under an originalist reading of the Constitution — interpreting it the way it was originally written — Obamacare would not be allowed.
In that same article, Barrett also criticized Chief Justice Roberts’ stance on the ACA and claimed that he considered too many factors outside of the Constitution
Notably, when pressed on the topic during her Senate confirmation hearings, she did give some supporters of the law hope when she outlined her views on the legal doctrine known as severability, which allows for parts of a law to be struck down without getting rid of an entire law.
Barrett told the Senators that the presumption is to always favor severing parts of a given law rather than scrapping the whole thing. Some argued that opinion would be favorable for how she may rule on Obamacare, but others remained skeptical.
Even before hearing the ACA arguments, the Supreme Court is also set to take up another key case that could allow private agencies that receive taxpayer funding to provide government services to deny those services to people based on their sexual orientation.
The case stems from a lawsuit filed against the City of Philadelphia by Catholic Social Services (CSS) in 2018. City officials canceled a contract with the agency to provide foster care services to children after learning that CSS refused to accept same-sex couples as foster parents because of its own religious objections.
A lower court ruled that the city was allowed to end the contract because it fell under the enforcement of its anti-discrimination policy, and an Appeals Court upheld that decision. Now the case is set to go before the Supreme Court, and the consequences could highly significant.
“A broad ruling could decide when religious organizations deserve exemptions from anti-discrimination laws that the groups say would cause them to violate deeply held beliefs, such as what constitutes a marriage,” The Washington Post explained.
Many Democrats and activists have criticized Barrett for her controversial views on LGBTQ rights, specifically pointing to a lecture she gave in 2016 where she defended Supreme Court justices who argued against making gay marriage legal.
Others have also noted a separate speech she gave, where she argued that Title IX — the law that protects people from sex-based discrimination in education programs or other activities that receive federal funding — does not apply to trans people.
During the Senate hearings, Barrett was largely tight-lipped about her views on key Supreme Court decisions. At one point she refused to say whether she believed the case that established gay marriage as legal had been decided properly.
There are also some other legal battles that Barrett could rule on as early as later this week. This Friday, the justices are expected to meet privately to decide what cases could still be added to this term’s docket.
Two of the cases they are considering are emergency orders regarding ballot extensions in two key battleground states: Pennsylvania and North Carolina.
Last week, the Supreme Court denied a request from Pennsylvania’s Republican Party to shorten the deadline in which state election officials could receive absentee ballots. The highest court took up the case after Pennsylvania’s Supreme Court sided with Democrats and allowed them to extend the deadline that mail-in ballots could be received to three days after the election.
Notably here, the Supreme Court did not directly rule against the Republicans, but instead split the decision 4-4, meaning the court was deadlocked, and thus the decision from the lower court would stand.
But now, with the ninth seat filled, Pennsylvania Republicans are asking the court to reconsider blocking the extension and to fast-track the decision.
In a very similar legal battle, the high court has also been asked to consider whether or not to hear a case brought by the Trump campaign and the North Carolina Republican Party asking them to block a mail-in ballot extension approved by the State Board of Elections last month.
The extension would allow officials to receive ballots postmarked by Election Day for nine days after the election. So far, that new deadline has already been held up by a district court and a federal appeals court.
Wisconsin and Kavanaugh
Currently, it is unclear if the court will hear either case, though it is worth noting that they have taken up a number of similar election-related legal battles in recent weeks.
On Monday, the Supreme Court voted 5-3 to reject attempts by Democrats in Wisconsin to extend the deadline for accepting mail-in ballots to six days after the election. Instead, the court ruled that mail-in ballots in the state can only be counted if they arrive on Election Day.
While the court did not provide a reason for this decision, as is normal in cases like this, some justices filed opinions including Brett Kavanaugh, who sparked controversy in his defense of his decision to strike down the extension.
“Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election,” he wrote, arguing for the importance of deadlines. “And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”
Many condemned the justice, accusing him of issuing a shockingly partisan opinion and arguing that the situation he detailed would not be considered “flipping” the election, including Justice Elana Kagan, who took aim at Kavanaugh’s argument here in a footnote in her own opinion.
“But there are no results to ‘flip’ until all valid votes are counted,” she wrote. “And nothing could be more ‘suspicio[us]’ or ‘improp[er]’ than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”
Some also pointed out the fallacy in Kavanaugh’s argument that mail-in ballots that arrive after election day will change the outcome that a majority of voters wanted.
“If Trump leads by 10 votes on Nov. 3 but 6,000 ballots arrive the day after having been sent on Oct. 24, most of them preferring former vice president and Democratic nominee Joe Biden, Kavanaugh worries that this constitutes an unfair rejection of the will of the public,” The Post wrote.
Others still argued that Kavanaugh’s opinion is especially concerning given the fact that currently, election officials in at least 18 states and Washington, D.C., do count ballots that arrive after Election Day.
“In these states, there is no result to ‘flip’ because there is no result to overturn until all valid ballots are counted,” Slate reported, noting that Kavanaugh’s opinion echoes false claims repeatedly made by President Donald Trump about absentee voting.
In fact, early that same day, the president posted a tweet that mirrored the justices’ argument almost exactly.
“Big problems and discrepancies with Mail In Ballots all over the USA,” he wrote. “Must have final total on November 3rd.”
The post was quickly flagged by Twitter as election-related misinformation.
See what others are saying: (The Washington Post) (Slate) (CNN)
Highlights and Key Takeaways from the State of the Union
The president’s scaled-down agenda and heckling from Republicans throughout the night underscored the high level of polarization in the newly divided Congress.
A Big Night for Biden
President Joe Biden gave the annual State of the Union Tuesday, delivering the high-stakes address before a House now controlled by Republicans.
There was a lot riding on Biden’s shoulders: the speech has largely been seen as a soft launch for his 2024 presidential campaign at a time when his approval rating has remained quite low, hanging around just 42%.
That is a bump from the mid-30s he was hovering at last summer, but it still places him among some of the lowest average second-year approval ratings of any president in modern history.
To that point, this year’s State of the Union also put a lot of pressure on Biden to really perform at the top of his game and show the American people he still has what it takes to lead them — even as polls show that a majority of Democrats want a president from a new generation.
Biden is already the oldest president ever at 80, and a re-election bid means he’s asking voters to trust him with the country until he is 86. Republicans have repeatedly seized on his past stumbles to argue he is unfit for office. But, for the most part, Biden has been applauded for delivering exactly the address he needed to.
Championing Enacted Policies
The president’s address was fairly run-of-the-mill for a second-year president.
Touting his administration’s biggest accomplishments over the last few years, Biden put particular focus on the modest but steady economic gains and recoveries in key sectors. He emphasized economic initiatives like the Inflation Reduction Act and the historic infrastructure bill, taking a jab at Republicans who did not back the bipartisan bill to rebuild roads and bridges.
“I want to thank my Republican friends who voted for the law. And my Republican friends who voted against it as well,” he said. “But I’m still — I still get asked to fund the projects in those districts as well, but don’t worry. I promised I’d be a president for all Americans. We’ll fund these projects. And I’ll see you at the groundbreaking.”
Biden also took credit for a range of social policies, like lowering prescription drug prices, lowering costs for childcare and housing, and investing in climate programs. However, he also made it clear that there is still a long way to go, calling on Republicans and their new House Majority to work with him to “finish the job” — a phrase that he reportedly said 12 different times during the speech.
Push for Bipartisanship
In that vein, Biden presented an agenda that was very toned down from the ambitious, progressive plans he had outlined before a Democratic-controlled Congress.
He did not push for many new policies, and when he did, they were very middle of the road — like ending “junk fees” in travel, entertainment, and credit cards. The president also reiterated calls for a number of initiatives that have been non-starters for Republicans, like codifying abortion rights, renewing the assault weapons ban, and imposing new taxes on billionaires.
For the most part, Biden largely focused on a push for bipartisanship.
“To my Republican friends, if we could work together in the last Congress, there is no reason we can’t work together and find consensus on important things in this Congress as well,” he said.
Biden went on to outline a unity agenda of issues he believes he can get GOP backing on, like support for veterans, fighting the opioid epidemic, and increasing access to mental health benefits.
Republicans Heckle Biden
Achieving unity and bipartisanship is easier said than done — especially given the extreme levels of polarization and division in the federal government. That was very much on display Tuesday night.
In an unusual show of partisan tensions, Republicans — mainly on the far-right — repeatedly heckled the president in what The Hill described as “some of the rowdiest pushback from an opposing party in recent memory.”
House Speaker Kevin McCarthy (R-Ca.) had told reporters that Republicans would act in line with the congressional “code of ethics” and that they would not play “childish games.” It was also reported that the Speaker explicitly warned his party to behave because there would be hot mics and cameras everywhere.
But McCarthy’s members ignored him. One of the most notable moments came when Biden talked about Republicans’ refusal to raise the debt ceiling and accused them of holding the economy hostage until Democrats agreed to their demands.
“Instead of making the wealthy pay their fair share, some Republicans, some Republicans, want Medicare and Social Security to sunset. I’m not saying it’s the majority,” Biden said, to boos from the GOP. “Let me give you — anybody who doubts it, contact my office. I’ll give you a copy — I’ll give you a copy of the proposal.”
The remark was met with much uproar. One member shouted an expletive, and Rep. Marjorie Taylor Greene (R-Ga.) yelled “Liar!” as Biden continued to speak.
“I’m glad to see — no, I tell you, I enjoy conversion,” Biden quipped in response. “Folks, as we all apparently agree, Social Security and Medicare is off the books now, right? They’re not to be — all right. We’ve got unanimity.”
The comments have widely been described as Biden baiting Republicans — who fell into his trap. While it is true that a couple of Republicans floated tying Social Security and Medicaid cuts to the debt ceiling negotiations, that has largely been rejected — including by McCarthy, who said it is off the table.
That, however, was not the only moment where Republicans acted out. When Biden was speaking about the opioid epidemic, he cited the fact that over 70,000 Americans are killed by fentanyl each year, prompting one Republican to yell: “It’s your fault!”
There was further jeering and mocking laughter at various points of the night. In fact, the event got so rowdy that McCarthy was seen shushing his members multiple times from his perch behind Biden.
Biden, for his part, did repeatedly jab at Republicans on a number of issues. He condemned them for not backing certain proposals, criticized GOP policies, and called out efforts to ban abortion and repeal the Inflation Reduction Act — saying firmly that he will veto those attempts.
Small Steps for Bipartisanship, Lack of Foreign Policy
Despite the heated reproaches, the State of the Union did yield some solid moments of unity.
For example, Biden garnered bipartisan applause at one point while speaking about the need for police reform. He also received standing applause from Republicans when he slammed Russia’s war with Ukraine, as well as when he talked about building more semiconductor production in America.
On the topic of foreign policy, many experts noted that Biden spent relatively little time talking about Russia and China, despite the fact that he devotes much of his work and time to dealing with foreign adversaries.
The president, however, allocated only a small amount of his speech to talking about the war with Russia as well as ongoing standoffs with China.
See what others are saying: (The New York Times) (The Washington Post) (NPR)
Republican Congressman Proposes Bill to Ban Anyone Under 16 From Social Media
The proposal comes amid a growing push for social media companies to be stringently regulated for child and adolescent use.
The Social Media Child Protection Act
Rep. Chris Stewart (R-Ut.) introduced legislation Thursday that would ban all Americans under the age of 16 from accessing social media.
The proposal, dubbed the Social Media Child Protection Act, would require social media companies to verify users’ ages and give parents and states the ability to bring legal actions against those platforms if they fail, according to a press release.
The legislation would also mandate that social media platforms implement “reasonable procedures to protect the confidentiality, security, and integrity of personal information collected from users and perspective users.”
The Federal Trade Commission (FTC) would be given the authority to enforce these regulations and implement fines for violations.
Stewart has argued that the move is necessary to protect children from the negative mental health impacts of social media.
“There has never been a generation this depressed, anxious, and suicidal – it’s our responsibility to protect them from the root cause: social media,” he said in a statement announcing the bill.
“We have countless protections for our children in the physical world – we require car seats and seat belts; we have fences around pools; we have a minimum drinking age of 21; and we have a minimum driving age of 16,” the Congressman continued.
“The damage to Generation Z from social media is undeniable – so why are there no protections in the digital world?”
While Stewart’s arguments are nothing new in the ongoing battle around children and regulating social media, his legislation has been described as one of the most severe proposals on this front.
The plan would represent a huge shift in verification systems that critics have long said fall short. Many social media sites like TikTok and Twitter technically ban users under 13 from joining, but there is no formal verification process or mechanisms for enforcement. Companies often just ask users to provide their birthdays, so those under 13 could easily just lie.
Backlash and Support
Stewart — who spent the weeks before the rollout of his bill discussing the matter with the media — has already gotten pushback from many who say the idea is too extreme and a bad approach.
Carl Szabo, the vice president and general counsel of the social media trade group NetChoice, told The Washington Post that such a decision should be left to parents.
“Rather than doomsaying or trying to get between parents and their families, the government should provide tools and education on how best to use this new technology, not demonize it,” he said.
Others have also argued that the move could cut off access to powerful and positive online resources for kids.
“For many kids, especially LGBTQ young people who may have unsupportive parents or live in a conservative area, the internet and social media are a lifeline,” Evan Greer, the director of the advocacy group Fight for the Future, told The Post. “We need better solutions than just cutting kids off from online community and educational resources.”
Lawmakers have also echoed that point, including Rep. Ro Khanna (D-Ca.), who represents Silicon Valley. However, there also seems to be support for this measure. At least one Democratic Congressmember has told reporters they are open to the idea, and Stewart says he thinks the proposal will have broad bipartisan backing.
“This is bipartisan… There’s Democratic leaders who are actually maneuvering to be the lead co-sponsor on this,” he told KSL News Radio, adding that President Joe Biden recently wrote an op-ed for The Wall Street Journal that referenced similar ideas.
A Growing Movement
Stewart is just one among the growing number of lawmakers and federal officials who have voiced support for keeping kids and younger teens off social media altogether.
In an interview with CNN Sunday, U.S. Surgeon General Vivek Murthy expressed concern regarding “the right age for a child to start using social media.”
“I worry that right now, if you look at the guidelines from the platforms, that age 13 is when kids are technically allowed to use social media,” he said. “But there are two concerns I have about that. One is: I, personally, based on the data I’ve seen, believe that 13 is too early.”
Murthy went on to say that adolescents at that age are developing their identity and sense of self, arguing that social media can be a “skewed and often distorted environment,” adding that he is also worried about the fact that the rules around age are “inconsistently implemented.”
His comments gained widespread backing. At least one Senator posted a tweet agreeing, and an FTC Commissioner also shared the remarks on the platform. Stewart, for his part, explicitly cited Murthy’s remarks in the press release announcing his bill.
See what others are saying: (The Washington Post) (KSL News Radio) (CNN)
Feds Investigate Classified Files Found in Biden’s Former Office
The documents reportedly include U.S. intelligence memos and briefing materials that covered topics such as Ukraine, Iran, and the United Kingdom
What Was in the Files?
President Biden’s legal team discovered about 10 classified files in his former office at the Penn Biden Center for Diplomacy and Global Engagement in Washington D.C., the White House revealed Monday.
The Department of Justice has concluded an initial inquiry into the matter and will determine whether to open a criminal investigation.
According to a source familiar with the matter who spoke to CNN, they include U.S. intelligence memos and briefing materials that covered topics such as Ukraine, Iran, and the United Kingdom.
A source also told CBS News the batch did not contain nuclear secrets and had been contained in a folder in a box with other unclassified papers.
The documents are reportedly from Biden’s time as vice president, but it remains unclear what level of classification they are and how they ended up in his office.
Biden kept an office in the. Penn Biden Center, a think tank about a mile from the White House, between 2017 and 2020, when he was elected president.
On Nov. 2, his lawyers claim, they discovered the documents as they were clearing out the space to vacate it.
They immediately notified the National Archives, which retrieved the files the next morning, according to the White House.
What Happens Next?
Attorney General Merrick Garland must decide whether to open a criminal investigation into Biden’s alleged mishandling of the documents. To that end, he appointed John Lausch Jr., the U.S. attorney in Chicago and a Trump appointee, to conduct an initial inquiry.
Garland reportedly picked him for the role despite him being in a different jurisdiction to avoid appearing partial.
Lausch has reportedly finished the initial part of his inquiry and provided a preliminary report to Garland.
If a criminal investigation is opened, Garland will likely appoint an independent special counsel to lead it.
The case mirrors a similar DoJ special counsel investigation into former President Donald Trump’s alleged mishandling of classified materials and obstruction of efforts to properly retrieve them.
On Nov. 18, Garland appointed Jack Smith to investigate over 300 classified documents found at Trump’s Florida residence, Mar-a-Lago.
Trump resisted multiple National Archives requests for the documents for months leading up to the FBI’s raid on his property, then handed over 15 boxes of files only for even more to be found still at Mar-a-Lago.
“When is the FBI going to raid the many houses of Joe Biden, perhaps even the White House?” Trump wrote on Truth Social Monday. “These documents were definitely not declassified.”
Rep. James Comer (R-KY), the new chairman of the House Oversight Committee, told reporters he will investigate the Biden files.
Republicans have been quick to pounce on the news and compare it to Trump’s classified files, but Democrats have pointed out differences in the small number of documents and Biden’s willingness to cooperate with the National Archives.
The White House has yet to explain why, if the files were first discovered six days before the midterm elections, the White House waited two months to reveal the news to the public.