Amy Coney Barrett confirmation hearing: Cases to know

Roe v. Wade, Kanter v. Barr were among the most high-profile discussion points Tuesday

As Amy Coney Barrett answered senators' questions for more than 11 hours Tuesday she discussed a number of court cases, some written by her and some by the Supreme Court justices she aims to join by the end of the month, while the Judiciary Committee sought to divine her views on issues from gun rights to abortion. 

Some of the cases were household names, like Roe v. Wade, and others were more obscure, like Kanter v. Barr, but all important to understand as the American public gets what will likely be its last glimpse of Barrett speaking publicly before she assumes a lifetime tenure on the highest court in the land. 

Here are some of the court cases to know as the Barrett confirmation hearings continue.


1. Roe v. Wade and Planned Parenthood v. Casey 

Roe v. Wade is the Supreme Court case from 1973 that prevents states from banning abortion and has been one of the most contentious decisions by the high court for decades. It grounded an individual right for women to choose abortion in an individual right to privacy the justices say they found contextually in the Fourteenth Amendment. 

Planned Parenthood v. Casey is a case from 1992 that upheld the fundamental holding of Roe and is part of the reason why some Democrats consider Roe to be a "super precedent," or a case that is so widely accepted it would be out of bounds for the Supreme Court to consider overturning it. Barrett under questioning from multiple senators declined to say that Roe is a "super precedent," 

“I'm answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall into that category," Barrett said in response to questioning from Sen. Amy Klobuchar, D-Minn., on Tuesday. 


2. Kanter v. Barr

Kanter v. Barr is not a Supreme Court case, but instead perhaps the most high-profile opinion that Barrett has written in her time as an appeals court judge. At question in the case was a Wisconsin law taking gun rights away from all felons, even those who were found guilty of nonviolent crimes. 

Judges Joel Flaum and Kenneth Ripple, who were appointed by President Ronald Reagan, wrote the majority opinion in the case and upheld the law. But Barrett dissented, saying that while governments have the power to take away gun rights from dangerous people, but that being convicted of a nonviolent felony does not necessarily make people dangerous. 

"History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns," Barrett wrote. "But that power extends only to people who are dangerous."

She added: "[W]hile both Wisconsin and the United States have an unquestionably strong interest in protecting the public from gun violence, they have failed to show, by either logic or data ... that disarming Kanter substantially advances that interest."


Sen. Dick Durbin, D-Ill., brought up the Kanter case Tuesday, criticizing Barret for giving Second Amendment gun rights more "respect" than voting rights. Barrett responded by noting that "the Constitution contemplates that states have the freedom to deprive felons of the right to vote," and distinguishing between civic rights like voting and individual rights like gun ownership. She added that she was not expressing a personal view on the policy option of states taking away felon voting rights. 

3. California v. Texas

Democrats are making the Affordable Care Act (ACA), also known as ObamaCare, central to their campaign pitch, and by extension, it's becoming central to their grilling of Barrett in the Judiciary Committee hearings. 

The Trump administration is backing a lawsuit brought by a group of red states called California v. Texas, which aims to overturn the ACA based on the fact that there is no longer a financial penalty associated with the individual mandate to buy health insurance in the law. The Supreme Court choosing to read that provision as a tax was the key reason why it was not ruled unconstitutional in a previous challenge, NFIB v. Sebelius.

But because there is no longer any money being collected by that provision, the red states behind the suit argue that it's now simply an unconstitutional mandate to purchase a certain product, arguing that Congress cannot force people to buy insurance "any more than it can order them to buy a new car or broccoli."

Barrett was previously critical of the Supreme Court's reading of the individual mandate as a tax in writings before she was appointed as a judge. Democrats are seizing on that as both an argument against Barrett's confirmation and an election-year base-mobilizing issue to argue against Trump. 

However the California v. Texas case, Barrett said Tuesday, hinges on a different issue -- the concept of "severability." The blue states opposing the red state suit, in addition to continuing to argue that the individual mandate is constitutional even without the financial penalty, say that if the Supreme Court finds that provision unconstitutional that it is severable from the rest of the ACA. That means the individual mandate could be struck down and the rest of the ACA -- including its protections for those with preexisting conditions -- would remain in effect. 

Barrett Tuesday said that she hasn't "written about severability that I know of at all," and refused to express a view on it as if she is confirmed she will likely hear the oral arguments in the case set for Nov. 10. 

Many experts expect that at least some of the more conservative justices will be convinced by the severability argument and vote to uphold most of the ACA. 


4. Obergefell v. Hodges

Obergefell v. Hodges was the landmark Supreme Court ruling that required all states to recognize same-sex marriage. The opinion in that case, written by retired Justice Anthony Kennedy, called sexual orientation "immutable" to people. 

That wording in the opinion was noted by Democrats on Tuesday as they attacked Barrett for a comment she made saying that she would not discriminate against people because of "sexual preference."

Sens. Mazie Hirono, D-Hawaii, and Cory Booker, D-N.J., both lit into Barrett over the comment. 

"Let me make clear, 'sexual preference' is an offensive and outdated term," Hirono said. "It is used by the anti-LGBTQ activists to suggest that sexual orientation is a choice. It is not. ... The LGBTQ community should be rightly concerned whether you will uphold their constitutional right to marry."

"When you did use the term 'sexual preference' earlier today, rather than 'sexual orientation,' is there a difference, and what is it?" Booker asked Barrett. 


"Senator, I really — in using that word, I did not mean to imply that I think that, you know ... that it is not an immutable characteristic, or that it’s solely a matter of preference," Barrett responded. "I honestly did not mean any offense, or to make any statement by that."

Obergefell recently was attacked by two members of the Supreme Court: Justices Clarence Thomas and Samuel Alito. 

"[T]his petition provides a stark reminder of the consequences of Obergefell. By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix," Thomas wrote in a dissenting opinion joined by Alito. "Until then, Obergefell will continue to have 'ruinous consequences for religious liberty.'"

5. District of Columbia v. Heller and Citizens United v. FEC

Both of these cases were raised by Sen. Ted Cruz, R-Texas, on Tuesday as important rulings that were very close to being decided the opposite way, emphasizing the importance of confirming Barrett to avoid those decisions possibly being overturned. 

District of Columbia v. Heller established the Second Amendment right to bear arms as an individual right possessed by each American, rather than a collective right. Citizens United v. FEC served as the basis for allowing private corporations to spend money on elections as they do in the current political environment, and Cruz noted that the Obama administration in the oral arguments of that case said it was of the opinion that the federal government had the power to ban books under certain circumstances. 


Both of these decisions are widely decried by Democrats and could be further entrenched if the Supreme Court hears cases on them with Barrett on the bench. 

Bonus cases: Some cases that Barrett herself has participated in that could be brought up on Wednesday, but were not major topics on Tuesday, include Doe v. Purdue, Rainsberger v. Benner, and Cook County v. Wolf. Learn more about those here.

Fox News' Bill Mears, Joseph A. Wulfsohn and Morgan Phillips contributed to this report.