Justice Barrett’s impact on employment law

Judge Amy Coney Barrett’s confirmation to the U.S. Supreme Court will immediately alter the kind and nature of the coalitions that form on the Court in reaching its decisions. Her votes on cases affecting employment, however, aren’t expected to change many outcomes.

With the still-shocking exception of the Bostock case, extending Title VII of the Civil Rights Act of 1964 protections to the LGBTQ community, the Supreme Court has been predictably proemployer. Judge Barrett’s addition will likely mean 6-3 decisions, rather than the 5-4 rulings we’ve witnessed in cases such as those regarding mandatory arbitration. Should matters involving joint employment or independent contractor status reach the new Court, a similar outcome is anticipated.

Except for the Affordable Care Act (ACA).

Although a great deal of notice has been given to President Donald Trump’s stated wish to have Judge Barrett on the Court before November 3 to rule on any election test case (a la Bush v. Gore), such a case may never develop or reach the high court. On November 10, however, it’s certain the Court will hear the challenge (supported by the U.S. Department of Justice) to the ACA’s constitutionality. Judge Barrett’s whirlwind confirmation may have as much to do with her being on the Court to hear and therefore be able to vote on the ACA case as it is on more politically volatile matters.