Feinstein's comment came after Barrett went into a detailed definition of "severability," which Barrett on Tuesday described as the central issue in California v. Texas, the ACA challenge set to be argued before the court on Nov. 10. Democrats on Tuesday repeatedly asked Barrett to weigh in on that case and whether she was asked by President Trump to rule in a certain way on the case.
Barrett would not answer those questions as the matter is pending before the court, as Democrats further amplified their worries that she would overturn the ACA entirely, as the red states behind the case are asking. But a different angle of questioning by Feinstein, D-Calif., on the subject allowed Barrett to delve deeper on the "severability" issue without weighing in on the specific case. And her answer may indicate that she could be receptive to arguments by blue states that if one part of the ACA is ruled unconstitutional, the rest of it should stand.
"I think I can say without expressing disagreement or agreement for the reasons I said yesterday not being able to grade precedents ... even by Justice Scalia's view the issue would be different in California v. Texas for two reasons," Barrett said. "One, Justice Scalia thought two provisions of the [law] were unconstitutional. So if you picture severability being like a Jenga game, it's kind of if you pull one out ... will it all stand or if you pull two out will it still stand?"