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October 25, 2020

Final looks at Judge Amy Coney Barrett's criminal justice record before she starts to build a criminal justice record as a Justice

As I understand matters, the US Senate is poised to confirm Amy Coney Barrett as the next US Supreme Court Justice and the only confirmation question seems to be how many Senate votes she will get on Monday.  But, of course, the big jurisprudential question for sentencing fans is how might a Justice Barrett approach a range of criminal justice issues as an avowed originalist jurist.  The late Justice Scalia and current Justices Alito, Gorsuch, Kavanaugh and Thomas, and even Chief Justice Roberts, lay claim at least some times to being originalists, and yet their votes on a range of constitutional criminal justice issues can and do vary.  And, of course, the Supreme Court considers a host of non-constitutional criminal justice concerns as well.

I have covered some prior analyses of Judge Barrett's criminal justice record in prior posts that can be found linked below.  This week I saw a couple more, and the subheadlines of these pieces highlight that they are developing distinct accounts of what we might expect from a Justice Barrett:

From The Appeal, "Amy Coney Barrett’s Record On Criminal Justice Is ‘Deeply Troubling,’ Reform Advocates Say: In the midst of a national debate about changing the criminal legal system, Barrett is set to take a lifetime seat on the U.S. Supreme Court. Advocates see her addition as a potential setback to creating a more fair system."

From Washington Monthly, "The Criminal Justice of Amy Coney Barrett: The soon-to-be Supreme Court Justice has a more interesting record on prisons, prosecutors and a slew of justice issues than you might think."

The closing paragraph of this second piece provides a fitting final question as we anticipate a new era for SCOTUS with a new Justice:

Barrett has such a well-schooled intellect that all her opinions are intricately woven out of existing case law and statutory text, so — in the criminal justice arena, at least — she has not departed wildly from the web of precedent that confines her. She said more than once at her hearing that a judge is obliged to rule where the law takes her, which may violate her personal views.  But once she’s on the Supreme Court and freer to chart her course, then what?

Notably, we may not have to wait too long to get a glimpse of how a Justice Barrett might approach sentencing and broader criminal justice issues.  Assuming she is confirmed to the Court this week, she will be on the bench in time to hear, on November 3, oral argument in Borden v. US, No. 19-5410 (concerning ACCA application and mens rea matters), and Jones v. Mississippi, No. 18-1259 (concerning application of Miller's Eighth Amendment rules for juvenile LWOP).  And just weeks later, the Court will also hear oral argument, on November 30,  in Van Buren v. USNo. 19-783 (concerning reach of Computer Fraud and Abuse Act), and Edwards v. VannoyNo. 19-5410 (concerning whether the SCOTUS unanimous jury Ramos ruling applies retroactively). 

These criminal cases that a Justice Barrett will be considering in just her first few weeks on the Supreme Court present an array of challenging issues for committed textualists and originalists, especially because these cases implicate in various ways an array of past precedents that a committed textualist and originalist might not be so eager to follow.  Interesting times.

Prior related posts:

October 25, 2020 at 12:41 PM | Permalink


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