Supreme Court

SCOTUS Contender Amy Coney Barrett's Mixed Record in Criminal Cases

While the 7th Circuit judge is often skeptical of the government's position, some of her conclusions will give pause to civil libertarians.


Appeals court judge Amy Coney Barrett, a leading contender to replace the late Justice Ruth Bader Ginsburg on the Supreme Court, is a popular choice among conservatives. That fact does not, by itself, tell us much about Barrett's treatment of criminal defendants' constitutional and statutory claims.

When it comes to the rights of criminal defendants and the actions of law enforcement agencies, the "conservative" label covers a wide range of attitudes. Although progressives tended to depict Justice Antonin Scalia as an authoritarian ogre, for instance, he sided with defendants in several important Fourth Amendment and Sixth Amendment cases. Neil Gorsuch, the judge President Donald Trump picked to replace Scalia, has shown an even stronger inclination to uphold the rights of the accused and to question the conduct of police officers and prosecutors, repeatedly breaking with fellow conservatives such as Samuel Alito and Clarence Thomas. By contrast, 5th Circuit Judge James Ho, another candidate on Trump's list of potential Supreme Court nominees, showed a troubling deference to law enforcement in a 2019 case involving a man killed by Texas sheriff's deputies.

The opinions Barrett has written in cases brought by criminal defendants and prisoners since joining the U.S. Court of Appeals for the 7th Circuit in 2017 present a mixed picture. While she is often skeptical of the government's arguments when it tries to put or keep people in prison, she has sometimes rejected claims by defendants and prisoners that her colleagues found credible.

It is clear from Barrett's record that she does not reflexively side with the government in criminal cases. In a 2019 opinion, for example, she concluded that Drug Enforcement Administration agents violated the Fourth Amendment when they searched a suspect's apartment based on the consent of a woman who answered the door but did not live there.

"Is it reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect's residence?" Barrett asked. "We hold that the answer is no. The officers could reasonably assume that the woman had spent the night at the apartment, but that's about as far as a bathrobe could take them. Without more, it was unreasonable for them to conclude that she and the suspect shared access to or control over the property."

In another Fourth Amendment case, decided in 2018, Barrett concluded that an anonymous tip did not provide reasonable suspicion for police to stop a car in which they found a man with a felony record who illegally possessed a gun. "The anonymous tip did not justify an immediate stop because the caller's report was not sufficiently reliable," she wrote for a unanimous three-judge panel. "The caller used a borrowed phone, which would make it difficult to find him, and his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful."

In a 2018 case, by contrast, Barrett joined the two other judges on a 7th Circuit panel in rejecting the Fourth Amendment claims of three men who had been convicted of viewing and possessing child pornography after they were identified as users of the dark website Playpen. The FBI, which ran Playpen for about two weeks in 2015 as part of its investigation, identified people who visited the site via tracing software it installed under a warrant issued by a federal magistrate judge in Virginia. The defendants argued that the warrant was invalid because it purportedly covered searches outside the magistrate judge's district.

Writing for the unanimous panel, Barrett said "we need not decide…whether the searches violated the Fourth Amendment." Even if they did, she said, "the district courts did not err by declining to suppress the evidence, because the good-faith exception to the exclusionary rule applies." Even assuming the warrant was invalid, she thought, the FBI could not reasonably have been expected to realize that.

Barrett has written several opinions overturning excessive federal sentences. In a 2019 case, she said a methamphetamine dealer should not have received extra time because of prior convictions under a state truancy law. That same year, she concluded that a judge should not have imposed a four-level enhancement for possessing a gun in connection with a drug offense without citing any evidence of that connection.

Also in 2019, Barrett said a gun trafficker named Dandre Moody should not have received an enhancement for supplying firearms to people who were not allowed to possess them. "Nothing in the record suggests that Moody had reason to believe that his buyers were unlawful gun users or possessors," she wrote in that case. "By finding that Moody had such knowledge, the court plainly crossed the line that separates permissible commonsense inference from impermissible speculation."

By contrast, Barrett dissented from a 2020 decision in which the 7th Circuit said a man convicted of firearm offenses in 2013 should benefit from a sentencing reform that was included in the FIRST STEP Act of 2018. Although that provision generally does not apply retroactively, the appeals court had overturned the defendant's original sentence before the law took effect. In the majority's view, that meant the sentence had not yet been "imposed." Bennett disagreed, saying the sentence had already been imposed, even if it was subsequently reversed, when Congress passed the FIRST STEP Act.

Other cases in which Barrett has sided with defendants or prisoners include a 2019 appeal by a man who was convicted of failing to register as a sex offender even though that requirement had expired; a 2019 case involving a drug offender who was sentenced by a judge who she said should have recused himself because of improper ex parte communications with federal prosecutors in other cases; and a 2018 case in which she said the government should have helped a prisoner obtain pro bono legal assistance in a lawsuit alleging abuse by correctional officers.

Two Barrett dissents stand out as examples of deferring to the government even when the facts suggest serious misconduct.

In a 2019 decision, two members of a three-judge panel said Indiana courts and a federal district court had erred by rejecting a defendant's claim that prosecutors improperly withheld exculpatory evidence when they tried him for attempted murder. According to Supreme Court's 1963 decision in Brady v. Maryland, the failure to disclose such information is a violation of due process.

The defendant in the 7th Circuit case, Mack Sims, did not discover until after he was convicted that the victim, whose testimony was crucial in identifying Sims as the perpetrator, had undergone hypnosis prior to the trial, which may have tainted his recollection of the crime. Between the attack and the trial, 7th Circuit Judge William Bauer noted in an opinion joined by Judge David Hamilton, the victim's account changed, as did his confidence that Sims was the man who had shot him. In these circumstances, they concluded, the use of hypnosis was an important piece of information that could have affected the outcome of the trial.

In her dissent, Barrett said the majority had failed to give the Indiana Court of Appeals proper deference. "Even though I think that the undisclosed evidence of [the victim's] hypnosis constitutes a Brady violation, it was neither contrary to, nor an unreasonable application of, clearly established federal law for the Indiana Court of Appeals to conclude otherwise," she wrote. "If I were deciding the question de novo, I would agree with the majority that the suppressed evidence of hypnosis undermined confidence in the verdict. But because I can't say that the Indiana Court of Appeals' decision was 'so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement,' I would affirm the district court's denial of Sims's habeas corpus petition."

Barrett also dissented from a 2019 decision in which the 7th Circuit allowed state prisoners to proceed with a lawsuit alleging that correctional officers had violated the Eighth Amendment's ban on cruel and unusual punishment by gratuitously and maliciously firing shotgun shells in response to a dining hall altercation. The two judges in the majority, Hamilton and Ilana Rovner, concluded that the validity of the prisoners' claims depended on resolving a dispute about what actually happened that day. "Summary judgment is not appropriate when there is evidence in the record that could support a reasonable jury finding that the defendants acted maliciously and sadistically for the very purpose of causing harm rather than in a good faith effort to restore order," they said.

Barrett disagreed, saying the plaintiffs had failed to allege facts that would support their Eighth Amendment claims. "The guards may have acted with deliberate indifference to inmate safety by firing warning shots into the ceiling of a crowded cafeteria in the wake of the disturbance," she wrote. "In the context of prison discipline, however, 'deliberate indifference' is not enough."

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  1. Absolutely fucking not, crazy eyes.

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    2. She sexually assaulted me. Repeatedly.
      And then I woke up

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      2. I thought I was the only one - you've inspired me to come forward

    3. With 7 kids it doesn't seem like she needs to meet your illustrious standards in the least.

      1. Expect one of the leftie attacks on her to be that she’s a “breeder” irresponsibly helping to destroy the planet.

        Only non-white women are allowed to have that have that many offspring without being criticized these days.

        1. 3 are adopted; two are twins from Haiti & 3rd is "special needs".

          Hard for the Left to criticize those box selections...


      1. Because the picture is from 2019 or even earlier? Should we photochop masks on all historical photos of people? Should art museums have masks painted over paintings of people?

        1. Yes. How can you even ask that question? You need to accept the new normal of current year!

        2. "Should we photochop masks on all historical photos of people? Should art museums have masks painted over paintings of people?"

          Of course!
          We must set proper examples!

          1. and put masks on the statues of all historical figures!

        3. Some would argue, yes.

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  2. Sounds like a winner. Now republicans do your goddamn constitutional duty and confirm the nominee.

    1. Don't bet on an easy confirmation even if Mitch does the smart thing and skips the committee hearings completely.

      The current senate split is 53R/47D (technically 2 independents, but they both caucus with the Democrats.

      It would only take 4 Rs jumping ship to block a nominee.

      1. Only 2 are hesitant and they implied they'd vote to confirm.

        Hot redhead on the court baby...

  3. Writing for the unanimous panel, Barrett said "we need not decide…whether the searches violated the Fourth Amendment." Even if they did, she said, "the district courts did not err by declining to suppress the evidence, because the good-faith exception to the exclusionary rule applies." Even assuming the warrant was invalid, she thought, the FBI could not reasonably have been expected to realize that

    No, bullshit, Sullum you fucking piece of trash. We've seen you play fast and loose with selective omissions and editorializing with no justification many times you cunt.

    1. Yeah. That seems standard fare.

      And I only skimmed but did he also miss Barret stand up against colleges for men accused of rape? She literally upheld due process. Wapo is attacking her for it.

  4. Been reading a bit about another contender, Barbara Logoa; in addition to being Hispanic [Cuban] from Florida, she is rated as "well qualified" by the ABA [also belongs to FEDSOC I understand] and was just last year confirmed to the Court of Appeals by a vote of 80-15.

    Don't know as much about her judicial history or where she stands on things like the 2A [and I definitely want to know] she'd have to be less of a fight than ACB.

    1. It doesn’t matter who the nominee is. There will be a fight.

      It could be a black transgender progressive to the core judge, and they will fight tooth and nail simply because it’s Trump that has chosen her/him/whatever.

        1. That would be a tactically interesting move, but Biden would simply decline the nomination.

        2. It is still possible to write satire!

        3. I believe Pres. Trump should pre-emptively make a deal with McConnel and the Republicans to vote down Merrick Garland after he nominates him just to shut the Dems up.

          "See, he wouldn't have been confirmed anyway."

    2. Judge Logoa would also be a worthy nominee.

      1. So would Britt Grant.

    3. If Logoa doesn't have a solid decades-long track record of supporting the 2A, I don't want her to be nominated. We will need more staunch pro-gun judges and justices since the totalitarian left is ascendant.

    4. She is rated as "well qualified by" the biggest domestic terrorism organization on the face of the earth, the ABA... This is supposed to inspire confidence??

  5. Is this the best the msm can conjure up against her? I appreciate it's difficult to fabricate a sexual harassment case against a woman but still, if that's the best you guys have to offer then it's better if you just fold...

    1. That is why lies, slander, and defamation come in. Just make up a bunch a shit, get some sleezy assed lawyer to represent the must be believed accusers. and it suddenly becomes "multiple accusations...."

      1. It's all so tiresome and the majority of the people no longer believes any such bs, heck, even some of my more liberal friends were just laughing on the latest anti-Trump accusation from that rando woman from 23 years ago... nobody believes these pathetic stories anymore, especially now 40 something days before the election...

      1. Hmm, not bad... maybe WaPo and NYT - the two filthiest rags on the planet - will indeed make it happen somehow...

  6. Am thinking the 7th Circuit/Playpen decision was in response to a desperate attempt by the three defendants -admittedly only knowing what I read here. I prefer no to make guesses, but am uncertain that the argument that Sullum presents is accurate. This aside, perhaps family welfare, and by extrapolation, child exploitation is Coney Barret's red button issue, as feminism was Bader Ginsberg's. I am also not certain that the jurisdictional argument in regard to the warrant would hold water in a Federal child pornography case, can anyone say more on the subject?

  7. Where is she on the ACA, gun rights, and DACA?

    I can't help but wonder if the ACA is like a dry run for the Green New Deal. The kinds of mandates the Democrats favor for the Green New Deal may make the individual mandate in Obamacare look tame.

    1. The IRS is gonna penaltax the fuck out of you!

  8. Hey Sullum!
    Univision has already released the narrative. No more awkward, bumbling columns searching for an angle of attack.

    You're to frame ACB as religious zealot. So simple and uncomplicated.

    1. I'm starting to think Barbara Lagoa is the better choice from a Trump reelection perspective.

      I believe Univision is based in Miami? They might not be so hard on a Cuban-American woman--and the rest of media might dial the hate back, too.

      Also . . .

      On November 2019, the Senate confirmed Lagoa by a vote of 80-15 with five abstaining. All five of the abstainers (Booker, Klobuchar, Bernie Sanders, Harris, and Warren) were running for President at the time. Would they have voted for her, too, otherwise?

      So, how do the Democrats who voted to confirm her--less than a year ago--justify suddenly turning around and trashing her? 27 out of 47 Democrats voted to confirm her less than a year ago--how do they justify trashing her now? Why wasn't she demonized back then? What's changed?

      Amy Coney Barrett, conversely, was confirmed with a vote of 55–43. It was a much closer contest with very little support from Democrats. They'll go after her like she's Michelle Bachmann.

      I don't think the Democrats can resist the urge to demonize whomever Trump nominates, regardless of whether it's Barbara Lagoa, but I think the political price for going after Lagoa is much higher--not just in Florida but with suburban women all over the country.

      1. How to now oppose? First of all, their confirmation votes in the past went down the memory hole as far as most media is concerned. The rationale will now be "but this time the confirmation vote is to the highest court where it can't be overturned, so I have to be extra cautious."

        1. Just to be clear to both You and Chelsea, the question is how they'll sell it to swing voters in the upcoming election.

          Yeah, they'll make rationalizations, but I don't know that they can sell them in a way that swing voters will buy them.

          That's my point. If he sends up Barbara Lagoa, they'll destroy themselves. And they'll rationalize it, and the news media will spin it, and it'll fall flat as a board.

          1. Spilt balling here:

            1) She needs more experience before she gets to the highest court
            2) Just use Mitch McConnel's words against him vis vi election year vote.
            3) This is not about her it is about ROE V WADE! (since suburban house wife vote is up although I'm not sure how the numbers work out and in which districts for that particular issue).

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            2. 1) Kagan had experience?
              2) Obama wasn't an incumbent
              3) Won't be overturned anyway.

      2. So, how do the Democrats who voted to confirm her–less than a year ago–justify suddenly turning around and trashing her?

        They weren't aware of the new and late-breaking information that's going to come out.

        1. Yes, and as soon as there is an official nominee, the "fill in the blank" will be swapped out and the appropriate video version will be immediately aired. Kinda like they always have two versions of Superbowl paraphernalia depending on who wins. Meanwhile, all the witnesses against whoever it is are now lining up and the funds are being cleared at Caribbean bank accounts so that their claims can be certified as confirmed by CNN and MSNBC.

      3. Consistency between 2019 and 2020, or 2016 and 2020, is not going to be required in this confirmation. Raw power only, please.

      4. When Dems attack ACB as a Catholic, it might help with the Hispanic vote.

        Michelle Bachman is (gasp!) a Lutheran. I think it's easier for dumb bigots to demonize Protestants because there are a lot of denominations and the differences between them aren't always clear.

        Dem attacks on ACB might help with suburban women. ACB is a mother of 7. When they're nasty to her she should attract a lot of sympathy.

        1. Suburban women of course will despise ACB because they have been told they must. Plus, there will be a lot of jealousy towards a mom who is able to have it all with 7 kids.

        2. As a Lutheran, I generally find I have more in common with Catholics than most protestant denominations. My wife, who was Catholic at the time, asked me when we started dating what Lutherans believed. I joked that Lutherans are Catholic Lite, all of the ceremony half the guilt.

      5. Thanks for the vote count info. Even though the count was closer for Barrett, she still got some Dem votes. I guess she seems more scary on abortion (which I nominally support but also don't really care about). It's not like she is going to ban it in every state with no exception. Worst case scenario, she casts a vote that gives the power to decide back to the states. Let's be honest here. Abortion is effectively unavailable already in many states. Plus, there's a pretty good chance the old 5-4 majority would do the same thing if they had had the chance.

        She seems pretty libertarian on state power. Gay marriage? I'd be happy if the feds got out of the marriage business altogether. Let everyone get civil unions and then marry under the eyes of their god in the church of their choice. Never understood why marriage was so important for those who don't have a religion (like most liberals and millennials). Better yet, ban all inheritance and state taxes, and you protect the most important thing about government sanctioned marriage — your family's money.

    2. So, you are upset because Sullum didn’t paint her as a religious zealot. No pleasing some folks.

      1. Lol.
        Yes, that's exactly it, WK. You sure are smart.

      2. Damn Dee you’re so stupid.

  9. We like the Cuban lady, right? She has a good civil rights reputation.

    Plus, you get to toss the "wise latina" nonsense back in their faces.

    1. That's why Univision didn't call her a Latina above. She's just a Cuban.

      1. They literally said Lagoa was “not one of us”.
        Apparently Latinahood is conferred by your political opinions rather then your ethnicity or primary language.

        1. Univision's influence is being overestimated. Ignore them. Both candidates would be fine choices.

      2. Among different Hispanic populations there are very big differences in how they view each other. The idea that all Hispanics are alike is wishful thinking among Democrats who long for the constancy of support they get form African Americans.

        For example Puerto Ricans often don't much like Cubans and Cubans often are thought to look down on Central Americans. Singling her out as a Cuban splits the Hispanic community.

        You may recall Sotamayor is almost always referred to as Hispanic and Latina, seldom as Puerto Rican.

    2. Cubans fall into that "White Hispanic" category. Combine that with the fact that most Cuban Americans are anti-socialist, and they don't really count as Latinx deserving of special treatment.

  10. She's purty, especially for a judge. Way hotter than Ruth

    1. "...Way hotter than Ruth."

      Bar can't get lower than that.

      1. But is she prettier than Alito on drag night at the Federalist Society Supper Club?

        1. RBG wasn't, but this gal is.

      2. Barr wishes he could get that low.

      3. It _can_ get lower: Ginsburg was prettier than Scalia, and Scalia was prettier than Taft.

    2. Ok. But I got dibs on Britt Grant.

    3. We need a swimsuit competition to work all of this out.

  11. These stupid "mixed bag" articles are already tiresome. Anywhere from Wrong 80% of the time to 98% totally fvckin awesome produces the same chin tugging about a "mixed bag".

    Hitler's opponent in the '34 elections had a mixed bag on Human Rights, too

    1. September 11th was a mostly peaceful day.

    2. Sorry, but not everyone shares your extreme views.

      1. What? Your saying Paul von Hindenburg was all around bad on Human Rights?

        1. He’s just squawking like the bird that he is.

      2. extreme views.


      3. We all agree you should STFU and GFY. It's quite mainstream

      4. What is extreme in his post or in his views?

  12. *skims article*

    What was she doing at a high school party 30 years ago?

    1. Andrew Sullivan already has a ticket to Louisiana where he will unleash his vast investigative skills to find out about her high school love baby or seduction of her math teacher or when she used the N word while reciting something from "Huckleberry Finn."

      1. Andrew Sullivan, Fetal Detective.

        1. Although he himself has no experience with women’s lady parts.

    2. What if there was an awkward teenage incident that never actually led to anything but could have led to something really bad if you use your imagination?

      Then we'd all have to pretend actually harmless (because no one was actually harmed) teenage hijinx at a party was deadly serious and still gravely important decades later.

      1. What do you think they'll be doing with the "superspreader" parties

        1. Tony hosts those all the time. Except he’s been doing it for over a decade, and in a slightly different context.

  13. Considering she went to an all girls HS, the left is (still) going to have to cut off it's own nose to call her on it.

    1. Whoops thread fail, that was meant in response to D.R.(P.)'s comment about her party resume above.

      1. White women adopting black babies is kidnapping. You read it here first.

        1. That was my first thought. Coming up next.... "stole two black babies from Haiti. It's like the slave trade all over again."

    2. Nope. They will just switch the tribal levers to something about racism.

      Particularly if we want to pretend the dems are supervillians and the whole blm protests were encouraged because they knew ginsburg was on her deathbed, and they knew a black nominee wasnt on Trumps shortlist. It gives them a solid battlespace prep to now pull out some alleged racist activity from 30 years ago.

    3. Lesbian rape? I had to Google it for ahem research. Depending on your tastes....

    4. She still could have assaulted a non-binary lesbian while dressed in blackface. Disqualified unless you can prove it didn't happen.

    5. My wife went to the same high school, Saint Mary's Dominican. It's considered one of the better High Schools in New Orleans, at least that what my wife says.

  14. the fact that Reason may not like her is all the reason i need to confirm her

    1. Reason? Russians? Both?

    2. That’s super pathetic, considering you are writing that comment on the Reason website.

      1. thank you, dilettante

      2. WK goes for the bootlickers bonus. Only two more weeks of apple-polishing like this and he earns one of KMW's old socks.

        1. Are you talking about a sock puppet handle, or a piece of clothing?

          1. His choice.

      3. "That’s super pathetic, considering you are writing that comment on the Reason website."

        Were you born an obnoxious pedant, or have you spent many years' effort to achieve that 'skill'?

        1. Dammit, Sevo, that sounds like an intelligent paraphrase of a question that I have asked Tony and Jeffy. I don't believe the Creator makes anyone this stupid. He is not cruel.

  15. It has become clear that we need to elect Biden, and let him not only nominate to fill this vacancy, but add three or five more justices.
    He is just too wise not to deserve this honor.
    Behold the new pledge of allegiance to the Democratic People's Republic in North America:
    “I pledge allegiance to the United States of America, one nation, indivisible, under God, for real,”

    (direct quote in the land of Wisconsin)

  16. Blasey Ford suddenly remembers it was Amy Coney who held her down when young Kavanaugh assaulted her. Yeah, that's the ticket.

    1. She was pretty strong for a 10 year old I heard

      1. Freakishly strong. And racist.

    2. ...while wearing blackface

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  19. What difference will it make if she is confirmed? If the dems take over, she will be only 1 of 21 justices.

    1. When they take over.

      1. That might not be for years to come.

    2. Well the next time the GOP is in control they can make it 53.

      1. I'm ok with packing the court so long as the number never falls below 100.

        Since Congress is unwilling to serve as any check on SCOTUS's unaccountability then diluted power is about the best we can hope for.

        1. What makes you think that a large court would be diluted? They still speak as a majority/minority. Whether it's a 5/4 split or 200/201 split, the effect is the same, except that the larger court can always hide in a larger field from their opinions.

    3. Yes, but she will be 1 of 49 justices when the Republicans regain control.

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  21. Isn't a mixed record exactly what's needed on the SCOTUS? Amy Barrett is an outstanding person and an excellent Federal judge. I hope she gets nominated and confirmed.

  22. Too bad there are not any judges who are both pro-Roe and pro-2nd Amendment.

    1. Why would a good judge be pro Roe? It’s blatantly I’m conflict with the tenth amendment.

  23. Debating Libertarian perfection vs. the immense improvement should she replace the Constitutional skeptic RBG. That's why Libertarians get no traction. Debating philosophy instead of reality of moving things in a preferable direction.

  24. Simply citing who her opinions favored in some cases and what her arguments were for them, with absolutely no evidence provided to show why her opinions were legally wrong...nor even an assertion that they were a pretty weak basis for a critique of her qualifications for SCOTUS.

  25. On the plus side, we can all save money by canceling our Hulu subscriptions, and continuing to watch The Handmaid's Tale in real life.

    1. Already debunked. Everywhere. So sorry for your loss (unless it's parody; in that case, nice!)

  26. Well, I'm just wondering what kind of shit the Democrats are going to pull out of their asses to try to smear her. I see they already tried to make a huge issue out of her being a practicing Catholic, and that's fallen flat.


  27. Her supposedly questionable decisions seem quite reasonable. Not extreme at all, and all apparently striving to strictly interpret the applicable laws. Thanks for convincing me she's perfect, Jake.

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  29. Honestly, I'm struggling to see what exactly is "mixed" here.

    As a lower-court judge, ACB is not empowered to place her own stamp on the law if the Supreme Court has said otherwise. AEDPA establishes a fairly high bar for federal courts to overturn state judgments, and it doesn't seem implausible to me it might (despite a judge's personal views) get in the way of a more defendant-friendly outcome in a case. Similarly, the good-faith exception, whatever one thinks of it as policy, is the law right now -- and it doesn't seem strange to apply it in that situation (while also noting just randomly firing a gun is reckless behavior).

    Meanwhile, the rest of her opinions (as summarized here, at least) seem fair to defendants and consistent with the protections of due process.

    I have better feelings on the criminal justice front about ACB than I did about Kavanaugh after reading this article, to be honest.

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