Amy Coney Barrett

SCOTUS Could Use More Skeptics Like Amy Coney Barrett

The 7th Circuit judge’s track record suggests she would frequently be a friend of civil liberties.

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Democrats worry that Supreme Court nominee Amy Coney Barrett, an originalist and textualist who clerked for Justice Antonin Scalia in the late 1990s, will emulate him if she is confirmed by the Senate. We could do a lot worse.

Although progressives often portrayed Scalia as an authoritarian ogre, he was a more faithful defender of First, Fourth, and Sixth amendment rights than some of his purportedly "liberal" colleagues on the Court. Barrett's track record during three years on the U.S. Court of Appeals for the 7th Circuit suggests she also would frequently prove to be a friend of civil liberties.

In a 2018 opinion, 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, noting that the report of gun possession by itself did not indicate criminal conduct.

In another Fourth Amendment case, decided in 2019, Barrett concluded that federal drug agents violated the Constitution when they searched a suspected heroin dealer's apartment based on the consent of a woman who answered the door but did not live there. Because the search was invalid, she said, the evidence it discovered should have been suppressed.

In a 2018 opinion for a unanimous 7th circuit panel, by contrast, Barrett said it did not matter whether the warrant authorizing tracking software that identified users of a child pornography website was valid. The evidence could be used anyway, she said, based on "the good-faith exception to the exclusionary rule."

Another Barrett opinion that may give pause to civil libertarians is her 2019 dissent from a decision in which the majority held that state and federal courts had erred by rejecting a defendant's claim that prosecutors improperly withheld exculpatory evidence when they tried him for attempted murder. While Barrett agreed that prosecutors should have revealed that the victim, whose testimony was crucial in obtaining a conviction, had undergone hypnosis prior to the trial, she thought the issue was not clear enough to override the determination of an Indiana appeals court.

Although that dissent might be cited as a reason to question Barrett's commitment to due process, her 2019 opinion in a case involving a Purdue University student who was suspended for a year based on uncorroborated sexual assault allegations points in another direction. She said the university's "fundamentally unfair" adjudication of those charges "fell short of what even a high school must provide to a student facing a days-long suspension."

When it comes to federal sentencing, an area where Scalia's Sixth Amendment views had a major impact, Barrett has repeatedly (although not always) sided with criminal defendants who argued that their punishment was more severe than the law allowed. And although her record on qualified immunity, a court-invented doctrine that shields police officers from federal civil rights claims when their alleged misconduct did not violate "clearly established" law, is also mixed, she wrote a reassuring 2019 opinion that demolished the argument of a detective who maintained that he could not be sued for lying in a probable cause statement that was used to charge a man with murder.

Barrett's critique of categorical bans on gun ownership by people with felony records, which she argues are inconsistent with the Second Amendment, will alarm gun control supporters. But her scholarly 2019 dissent in a case involving a man convicted of mail fraud shows how her originalist approach casts doubt on policies that permanently deprive people of the fundamental right to armed self-defense even when they have never demonstrated violent tendencies.

Barrett, in short, is not the sort of conservative who automatically defers to the government's position when its actions impinge on constitutional rights. The Supreme Court could use more skeptics like her.

© Copyright 2020 by Creators Syndicate Inc.

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46 responses to “SCOTUS Could Use More Skeptics Like Amy Coney Barrett

  1. These capsule summaries can’t be taken too seriously; there’s too much context needed to fit into a short column. But the gist sure looks good, and yes, we could do a LOT worse. Here’s hoping the Senate approves her nomination.

    1. What is a LOT worse is to continue to add to the perception that the party of the President that nominates a judge should make a such a big difference to how they will rule. The activist bases of both parties want judges that will give them the outcomes they want, but it is Republicans and libertarians that make so much noise about judicial philosophy that is supposedly neutral. As I note in my comment below, originalism and textualism don’t seem to be applied neutrally by conservative judges. Except perhaps to the extent that those methods tend to give conservatives what they want.

      A skeptic is skeptical of everything equally. That is the point of skepticism – to counter our brain’s tendency to rationalize a decision after the fact. We do that because that is less effort than thinking things through from the ground up in an neutral way that might lead to a result that conflicts with what we want to be true.

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      2. Part of that can be explained that a good part of American conservatism is about conserving the constitution and cultural traditions that has served us pretty well. That doesn’t mean that there isn’t any ideological bias from the more conservative justices, but I’d say there is a lot less. What are some “conservative” issues that come before the supreme court?
        Guns: pretty clear in the 2nd amendment
        Abortion: not mentioned, but Roe V. Wade is really a stretch. No one on the supreme court is trying to declare that it must be illegal, just that states can make it so. Which is tough to argue with from a constitutional perspective.
        Free speech: (how this became a conservative issue, I don’t know, but here we are). The 1st says what it says. Even if you don’t like big PACs buying election ads.

        This is all a big generalization. I don’t think the conservative judges are all pure and good or anything. And they still allow a lot of stuff to continue that is pretty clearly unconstitutional. But overall, they do seem to be more committed to the actual job, where the “liberals” seem to think that it is appropriate for the court to help shape society in a better way, not just to restrain government to its proper, constitutional powers.

        1. Conservative judges are pro-civil-liberties in some cases, mainly gun cases. They tend to rule in the interest of law enforcement otherwise. I also don’t think she’s going to be pro-civil liberties when it comes to being forced to continue a pregnancy. Roe v Wade is either dead or going to be cut to little bits by un-necessary regulations in red states. Rich women will always get abortions and poor women in red states will be forced to carry pregnancy to term or get an illegal abortion. I guess that’s what the conservatives want. If they really wanted fewer abortions they would be all for Obamacare’s low-cost birth control features.

          1. Or take a bus to another state.

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  3. She stood up for due process rights for a male student accused of sexual assault and is skeptical of gun control legislation, including bans on felons owning guns. However, she didn’t care whether the warrant was valid for a child porn website based on a “good faith” exception to the exclusionary rule.

    This article notes that her record is “mixed” on some of these issues, but those three cases the article mentions do not give me any confidence that her textualism and originalism are completely sincere and scholarly. It is really easy for anyone to side against purveyors of child porn, very easy for a conservative to side with gun rights, and also easy for conservatives to view “me too” as going too far. The real test of whether someone is a skeptic is how they apply skepticism to situations that would work on the skeptic’s biases.

    This article has mostly given examples of cases where the results are supposed to support hopes that she’d be good for civil liberties. If results are the measure that matters to people, then that is fine for them. If the argument is that Barrett will apply her judicial philosophy evenly and without bias toward outcomes, then digging into the logical consistency of her reasoning in different cases is what is needed. That is particularly true in cases that relate to issues where there are strong divides between conservatives and liberals, such as gun rights, due process in sexual assault cases, and many more.

    The funny thing about comparing her to Scalia is that there is one case where that made both conservatives and liberals very upset, though for quite different reasons. Employment Division v. Smith

    Scalia’s majority opinion in this case ruled that a person is not exempt from following a generally applicable law by appealing to their Free Exercise of religion rights under the 1st Amendment. At least, not if the religious claim is the only claim of liberty being asserted. This case led to the passing of the Religious Freedom Restoration Act three years later, by overwhelming bipartisan majorities. That Act required judicial review of religious freedom claims to apply strict scrutiny even when the law in question applies equally to everyone. It is the RFRA that was used in Hobby Lobby, Little Sisters, and others, not the 1st Amendment.

    And the details of the case are likely to explain Scalia going against expansive religious freedom rights. The petitioners were Native Americans that used peyote in their religious rituals. They had been fired as drug abuse counselors because of it. They then sought unemployment benefits, but were denied. That is what they were challenging. So, we have Native Americans using drugs that want a government handout. Perhaps that is why Scalia, Rehnquist, and Kennedy all voted to deny their petition for religious freedom.

  4. No no no Tony is afraid she will throw him in Sunday Bible School without his many sex toys.

  5. From a WAPO opinion piece by Michael McConnell, among other things the Director of the Constitutional Law Center at Stanford:

    “A Justice Barrett is unlikely to lead the court in more progressive directions, and more likely to read statutes and the Constitution to mean what they say, and not what liberals want them to say.”

    I do not expect perfection in terms of every aspect of civil liberties, but I do expect a hell of a lot more from her than I would have dared dream from her predecessor.

    Those are the results that matter to me.

    1. “I do not expect perfection in terms of every aspect of civil liberties, but I do expect a hell of a lot more from her than I would have dared dream from her predecessor.”

      Exactly; got rid of a horrible one, replaced with one who is looking pretty damn good.

    2. “A Justice Barrett is unlikely to lead the court in more progressive directions, and more likely to read statutes and the Constitution to mean what they say, and not what liberals want them to say.”

      I would think that the Equal Protection Clause means exactly what it says, but Scalia, Alito, Roberts, and Thomas didn’t seem to think that gay couples deserved the equal protection of the law in Obergefell v. Hodges.

      “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

      These dissenting Justices simply wrap their objection in what is really nothing more than a logically fallacious appeal to tradition. They do also try to assert marriage as a governmental interest in having and raising biological children, thus justifying restricting it to a man and woman. I wonder if they considered adoption by a married man and woman to be less of a government interest. The point of supporting marriage in a family unit is to have two parents. Or, what about marriage between a man and woman where one or both are not capable of reproduction, whether due to age or medical condition, or are simply uninterested in having children? What about the other important benefits of marriage, such as financial stability and emotional support?

      What we really need from the judiciary, SCOTUS especially, is for judges to actually reason each case from the ground up and show real skepticism, and not just find arguments against positions they don’t agree with.

      1. Yeah, they all seem to have some blind spots.

        And they all need to read the “privileges and immunities” part a lot more. The due process basis on which Obergefell was decided was awful, even if I find the outcome fairly agreeable.

      2. You are precariously close to legislating from the bench.

        The whole “what if” aspect of law must instead be “what is”.

  6. “”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, noting that the report of gun possession by itself did not indicate criminal conduct.”

    ShE JuST wAntS GuNz on ThE stReEtz!!! BURN HER!!!

    “She said the university’s “fundamentally unfair” adjudication of those charges “fell short of what even a high school must provide to a student facing a days-long suspension.””

    HanDmAidEnS TaLE!! BURN HER!!!

    “Barrett’s critique of categorical bans on gun ownership by people with felony records, which she argues are inconsistent with the Second Amendment, will alarm gun control supporters.”

    YOu sEe?!?!?!?!? GuN NuT! BURN HER!!!!!

    1. You just summarized her yet to be held confirmation hearing. Nice work.

    2. “BURN HER!!!!!”
      Did she turn you into a newt?

      1. I didn’t take you for a Monty Python fan.

        1. Who isn’t?

      2. Did she turn you into a newt?

        More importantly…did he get better?

  7. So we’re just sitting here pretending that this isn’t 100% about using the courts to make new policy that can’t get through democratic processes. Okay, whatever. The Democrats might be late to this ballgame but I saw through the “originalism” con a long time ago. I just think it’s funny how Republican defenders always insist that Republicans never say out loud what they’re actually doing. Why be embarrassed about something you favor doing? I don’t get it. Are you trying to fool the American people into eating something they don’t want, perhaps?

    1. “….100% about using the courts to make new policy that can’t get through democratic processes.”

      Pot

      Kettle

      Black

      1. Yes both parties do it. One party lies about it shamelessly. “The founding fathers said you have an unfettered right to 500 AR-15s.” Give me a fucking break.

        1. If the founding fathers had AR-15s, the revolutionary war would have been a quick win. As would most of the wars for the next 200 years.

        2. You don’t know much, if anything, about guns of any stripe. You should stop embarrassing yourself.

          1. I proudly don’t know much about guns. I try not to have such lame hobbies.

      1. People like EPA regulations. There’s every reason to believe the Trump courts will simply make it impossible for the EPA to function to regulate pollution. They’re tearing down the modern state and they aren’t exactly coy about it.

        You might be for that, but surely you pause when you consider that the American people are unequivocally getting policy they oppose by sheer government fiat instead of anyone voting.

        1. “People like EPA regulations.”

          I take it you’ve never gotten downwind of them.

          Sure, you want a vast administrative state, that is unelected and largely unaccountable, to promulgate what YOU want so others can be made to tow the line you desire. Congress needs to do their job of legislating and actually writing the laws and penalties and stop deferring their responsibility to the bureaucrats. So now we are getting yet another “originalist” that will do the following:

          “A Justice Barrett is unlikely to lead the court in more progressive directions, and more likely to read statutes and the Constitution to mean what they say, and not what liberals want them to say.”

          WAPO, 09/29, Michael McConnell, Director Constitutional Law Center Stanford School of Law

          1. The only possible rational reason to force congressmen to work on all the fine details of regulatory policy instead of experts they hire for that job is so that bad private-sector actors get away with abusing people.

            You people live in this fairy land where greed doesn’t actually motivate this shit.

            1. “experts they hire for that job”

              You [collectively] are so enthralled with “expertise” and trusting in a benevolent government bureaucracy to bring about your utopia. I just find that beyond naivete.

              Seriously, if Orange Man wins again, organize your ilk and just secede already. Take the West and NE Coastal/ urban fringes; and while you and the Rev are expunging all of us slack jawed clingers from your paradise, take Chicago as a W. Berlin flyover.

              I predict you’ll be cannibalizing one another within 3 months; after you’ve eaten all of your pets.

  8. Amy Barretts odd dissent in Kantor v. Barr, the second amendment case, had to be signaling or some other sly purpose. Her argument is that non-violent felons must not be permanently deprived of an individual right to own a gun. Okay. That could be why that right is restorable upon petition to a judge.

    1. Why must someone who committed a non-violent offense and subsequently paid their debt to society petition a judge just to have a fundamental right restored?

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