What difference will Amy Coney Barrett make?

Judge Amy Coney Barrett is 48 years old. If she is confirmed to the U.S. Supreme Court and remains on the court until she is 87 years old, the age at which her predecessor Justice Ruth Bader Ginsburg died on September 18, Barrett will be a justice until the year 2059.

Sometimes one has to guess as to a nominee's ideology. Not in the case of Barrett; her law review articles, her speeches, and her judicial opinions leave no doubt as to what she will be as a justice: She is as conservative as any federal judge in the United States. That is why President Donald Trump nominated her and is why the Republican Senate is rushing to confirm her.

Barrett's confirmation seems a certainty as Republican senators have made clear that they will vote in favor of her nomination. Four years ago, Senate Majority Leader Mitch McConnell refused to hold hearings or a vote on the nomination of Judge Merrick Garland following the death of Justice Antonin Scalia, declaring, "The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president." Many Republican senators, such as Lindsey Graham and Ted Cruz, echoed the idea that in an election year it should be for the people to decide who will fill a seat on the Supreme Court by who they choose to be president.

But just hours after the announcement of the death of Justice Ginsburg, Sen. McConnell declared, "President Trump's nominee will receive a vote on the floor of the United States Senate." Within a few days of Ginsburg's death, with only two exceptions, Republican senators across the board announced that they would vote on the nomination -- and none have indicated the slightest chance of voting against Barrett's confirmation. With 53 Republicans in the Senate, Barrett is a shoo-in to have a lifetime appointment on the Supreme Court.

Barrett joins a court where there already are five conservative justices who were appointed by Republican presidents: John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. In the overwhelming majority of cases, these five justices vote together and Barrett's presence will mean that the decisions will be 6-3 rather than 5-4. Last term, there were 14 5-4 decisions. In 10 of them, the majority was Roberts, Thomas, Alito, Gorsuch and Kavanaugh. In just two of them was the majority Roberts, Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

But there are occasional, important cases where Roberts has sided with the liberals and these would come out differently with Barrett rather than Ginsburg on the bench. Last term, for example, Roberts joined with the liberals to strike down a Louisiana law that required doctors performing an abortion to have admitting privileges at a hospital within 30 miles. Also last term, Roberts, joined by the four liberal justices, held that President Trump violated federal law in rescinding the Deferred Action for Childhood Arrivals Program, which allowed 800,000 Dreamers to remain in the United States.

More generally, with Barrett on the court, Roberts no longer will be the swing justice. In some areas, this is going to matter enormously. And it must be remembered that as a law professor, Barrett's scholarship primarily focused on precedent and she was clear that she believes that judges owe little fidelity to stare decisis. She wrote: "I tend to agree with those who say that a justice's duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it." In fact, she even has argued that following precedent is unconstitutional. She said that "rigid application" of stare decisis "unconstitutionally deprives a litigant of the right to a hearing on the merits of her claim."

It is clear from her writings that she believes a justice should feel free to overrule a precedent when it conflicts with the justice's originalist views of the Constitution. An originalist believes that the meaning of a constitutional provision is fixed when it is adopted and can be changed only by constitutional amendment. Judge Barrett frequently has described herself as an originalist and has said that Justice Scalia's judicial philosophy is hers as well.

What will that mean? First, there is no doubt that there will be five votes to overrule Roe v. Wade. No one questions that Justices Thomas, Alito, Gorsuch and Kavanaugh are ready, willing, and eager to do so. Now there is a sure fifth vote. In fact, Barrett in her scholarship and her speeches was explicit in saying that she believes that Roe was wrongly decided. Each state will then be able to decide for itself whether to allow or prohibit abortion. Twenty-one states already have laws outlawing almost all abortions and several others are sure to do the same.

Second, there may be five, or even six votes, to end constitutional protection for same-sex marriage, or at the very least, allow discrimination based on religious beliefs against gay, lesbian and transgender individuals. On the first day of its October 2020 term, the Supreme Court denied review a case involving Kim Davis, the court clerk in Kentucky who refused to issue wedding licenses to same-sex couples. The lower federal courts rightly ruled against Davis' claim that she had a right based on her religious beliefs to refuse to issue such licenses. If Davis prevailed, then clerks with a religious objection to interracial or interfaith marriages could likewise refuse to issue marriage licenses.

Justice Thomas, joined by Justice Alito, lambasted the Supreme Court's 2015 ruling that establishes a constitutional right of marriage equality for gays and lesbians. He accused the court of "choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment."

It is clear that Justices Thomas and Alito are eager to overrule the court's 2015 decision in Obergefell v. Hodges, and they might have support from the other conservatives on the court. Chief Justice John Roberts wrote a vehement dissent in that case and Justice Neil Gorsuch wrote an opinion in 2017 that left no doubt that he thought it was wrongly decided. There is no question where Barrett will be on this issue.

Even if the Supreme Court does not overrule Obergefell, with Barrett on the bench, the court will expand the ability of people, based on their religious beliefs, to discriminate against others, especially against gay, lesbian and transgender individuals. The court likely will say that bakers and florists and photographers can refuse to serve same-sex weddings. Employers who claim a religious basis will be able to discriminate on the basis of sexual orientation and gender identity.

Third, there may be five votes to declare unconstitutional the Patient Protection and Affordable Care Act. In 2012, the Supreme Court upheld the act in a 5-4 decision with Chief Justice Roberts joining the four liberal justices. Barrett, then a law professor, was sharply critical of Roberts and the decision. This November, the court will hear another constitutional challenge to the Affordable Care Act and Barrett well could join with the four most conservative justices to strike it down, leaving 21 million people without health insurance.

These are the immediate issues; the longer-term consequences of Barrett's confirmation are even greater. She will be part of a solid conservative majority likely for years to come. Consider the ages of the conservative justices: Neil Gorsuch, 52; Brett Kavanaugh, 54; John Roberts, 65; Samuel Alito, 70; Clarence Thomas, 72.

How did this happen? Some of the answer is the accident of history as to when vacancies have occurred. Since 1960, there have been 32 years of Republican presidents and 28 years of Democratic presidents. But Republican presidents have picked 15 justices, counting Barrett, while Democratic presidents have selected just 8. Some, too, is how Republicans have successfully packed the court by blocking Merrick Garland and rushing through Amy Coney Barrett's confirmation. And some is that to please their political base, Republican presidents, especially in recent years, have picked staunch conservatives rather than moderates.

The Democrats do not have the votes to stop Barrett's confirmation. But they must use the confirmation hearings to clearly communicate to the American people how this will affect all of our rights, often in the most intimate and important aspects of our lives. 