The EconomistOctober 17th 2020 United States 232
1who could be left without affordable cover-
age should the high court toss the law.
The line of attack is not without footing.
In 2017, Ms Barrett criticisedNFIB v Sebe-
lius, the 2012 Supreme Court decision up-
holding the constitutionality of the law’s
requirement that most Americans buy
health insurance. When Chief Justice John
Roberts anchored a 5-4 majority interpret-
ing the mandate as a tax within Congress’s
revenue-raising power, she wrote, he
“pushed the Affordable Care Act beyond its
plausible meaning to save the statute”. Jux-
taposing Chief Justice Roberts with
“staunch textualists” such as her mentor,
Antonin Scalia, Ms Barrett then used a foot-
note to detail several other cases in which
the chief “depart[ed] from ostensibly clear
text” in order to achieve his “preferable re-
sult”. She also favourably quoted Mr Sca-
lia’s condemnation of Chief Justice Roberts
in Sebeliusand in King v Burwell, as having
turned the acainto “scotuscare”.
Senator Amy Klobuchar paired this re-
view of the Supreme Court’s two rulings on
the acawith Mr Trump’s 2015 tweet pro-
mising his judicial appointees would “do
the right thing” and strike down the law. Ms
Barrett insisted she had made Mr Trump no
promises and was “not hostile” to Obama-
care. She also pointed out that the new
challenge, California v Texas, involves a
question not at stake in the earlier cases:
whether, if the now-toothless individual
mandate (which fined people who chose to
go uninsured) is unconstitutional, that
pulls the rug out from under the entire aca.
Perhaps tellingly, in adjudicating a stu-
dent-advocacy competition last month,
she struck down the mandate but said it
was “severable” from the rest of the law.
The perennial question of abortion
rights also popped up. When Ms Ginsburg
was asked about Roe v Wadein her hearings
nearly three decades ago, she said the “de-
cision whether or not to bear a child is cen-
tral to a woman’s life, to her well-being and
dignity”. If the government were to ob-
struct that decision, a woman would not be
“a fully adult human, responsible for her
own choices”. By contrast, Ms Barrett be-
lieves life begins at conception. In 2006 she
signed a letter condemning Roe’s “barbaric
legacy” and urging the restoration of “laws
that protect the lives of unborn children”.
When Senator Dianne Feinstein asked if
this means Roeshould be reversed, Ms Bar-
rett replied: “I don’t have any agenda.”
Other than in her openness on abortion,
Ms Ginsburg was tight-lipped in 1993—a
“no hints, no forecasts, no previews” strat-
egy Ms Barrett emulated. But Mr Trump’s
third nominee may have dropped a few
clues. She referred to half a dozen Supreme
Court rulings as “super-precedents”, that is
cases “so well-established that it would be
unthinkable that [they] would ever be over-
ruled”. Brown v Board of Education, the 1954ruling that struck down segregation in
publicschools,isasuper-precedent,she
said.Roeisnot—andissubjectto reap-
praisal—becauseit remainscontroversial.
Ms Barrett wasalso asked abouther
likelyroleinelectionlawsuits.Declaring
shewouldnotbe“usedasa pawntodecide
thiselectionfortheAmericanpeople”,she
declinedtorecuseherselffromlitigation
thatcouldaffecttheresult.AndwhenSen-
atorCoryBookeraskedhowsheregardsMr
Trump’s let’s-wait-and-see approach to
transferringpowerpeacefully,MsBarrett
couldnotbepinneddown.That’s“apoliti-
calcontroversyrightnow”,shesaid.“Asa
judgeI wanttostayoutofit.”Andwiththat
ACBwasnolongermerelyemulatingRBG.
A seniorjudge who feltunable to utter
somebromideinsupportofdemocracyfor
politicalreasons?It wasunprecedented. 7C
all it thebonfire of the masks. That
was the centrepiece of a large protest on
October 6th by ultra-Orthodox Jewish men
in Brooklyn’s Borough Park to protest
against new state restrictions on mass
gatherings. Some chanted “Jewish Lives
Matter”. A few hoisted Trump campaign
signs. “We are at war,” said Heshy Tischler,
a neighbourhood populist running the city
council who has been leading the agita-
tion, the following night. He also allegedly
set angry demonstrators on Jacob Korn-
bluh, a reporter for Jewish Insider, who wasattempting to cover the protests. He was
called both a “Nazi” and a “moyser”, a Yid-
dish word meaning informer.
This antipathy, which has of course
gone viral on the internet, is mostly direct-
ed at Andrew Cuomo, New York’s governor.
Mr Cuomo has enforced a new lockdown
plan to deal with the alarming rise in co-
vid-19 infections in so-called micro-clus-
ters of the city and state. Places in the “red
zone” areas are home to 3% of the state’s
population but account for 18% of all posi-
tive cases last week. These are mainly in
Brooklyn, Queens and a few towns upstate,
home to ultra-Orthodox communities,
who say they are being unfairly targeted.
Bill de Blasio, New York City’s mayor, calls
the restrictions a “necessary rewind”. Only
essential businesses can stay open in red
zones. Houses of worship are limited to
25% capacity or a maximum of ten people.
Schools must switch to remote learning.
If Mr Cuomo seems overcautious, it is to
avoid another outbreak and a return to the
time when New York was America’s co-
vid-19 capital. Since March, New York City
has seen 246,000 infections, 58,000 hospi-
talisations and more than 25,000 deaths
from covid-19. At the pandemic’s height in
April, personal protective equipment be-
came scarce. Nurses wore the same n- 95
mask for as many as five consecutive
shifts. Morgues overflowed. Sal Farenga, a
Bronx undertaker, held 120 funerals, three
times the norm. “There’s nothing more aw-
ful than zipping someone up in a body
bag,” said Kelley Cabrera, a nurse, “and we
had to do it over and over again.”
Much attention has been devoted to the
disproportionate impact the virus has had
on poor, black and Hispanic New Yorkers.
The toll on Orthodox Jews in New York is
less well-known. It has killed rabbis and
swept through families, which tend to be
large and live in cramped apartments.NEW YORK
Restrictions and rebellion follow New
York City’s covid-19 surgeNew York and covid-19Pikuach nefesh
Circuit breakers