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September 27, 2020

Some interesting early accounting of Judge Amy Coney Barrett's interesting Seventh Circuit criminal justice work

Judge_Barrett_Trump_Supreme_Court_SEPT_2020_Rose_GardenOver at Reason, Jacob Sullum last week already assembled and assessed in this lengthy piece a review of Seventh Circuit Judge (and now SCOTUS nominee) Amy Coney Barrett's judicial record regarding the "treatment of criminal defendants' constitutional and statutory claims."  I recommend that thorough review, and here is part of its lead in:

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 somewhat similar vein, ABC News has this new piece reviewing a handful of Judge Barrett's Seventh Circuit rulings headlined "3 cases that hint at Amy Coney Barrett's views on policing."  On a slightly different front, Matt Ford at The New Republic has this notable review of Judge Barrett's notable dissenting work in Kanter v. Barr, 919 F.3d 437 (2019), under the (inaccurate) headline "Amy Coney Barrett Wants Felons to Have Guns, But Not Votes."

With the help of Westlaw, I have done a way-too-quick review of Judge Barrett's sentencing work on the Seventh Circuit, and I did not find any cases nearly as intriguing or as telling as Kanter (which I blogged about here when it was first handed down).  I would welcome input from readers (and especially from any Seventh Circuit sentencing litigants) about whether Judge Barrett seems to follow in the footsteps of her former boss Justice Scalia on most criminal justice matters.  

Notably, Justice Scalia was a pretty reliable vote against capital defendants during his three decades on the Court, but Judge Barrett's most notable work on the death penalty came decades ago in the form of a co-authored law review article published while she was a law clerk on the DC Circuit.  Specifically, now-Judge Barrett co-wrote an article back in 1998, titled Catholic Judges in Capital Cases, which explores whether and how Catholic judges can and should be involved in enforcing the death penalty as members of the judiciary.  That article runs 48 pages and has much nuance, and I suspect it will get read closely by lots of folks in the days ahead. 

September 27, 2020 at 01:04 PM | Permalink


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