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Analysis

Amy Coney Barrett’s Judicial Record in Criminal Justice Cases

Although the Supreme Court nominee has often written opinions that don’t advance the claims of some criminal defendants and incarcerated people, she may be more receptive to supporting privacy rights and gun rights.

If Amy Coney Barrett joins the Supreme Court, she could tip the balance on a host of major issues. And at a time of renewed reck­on­ing across the nation to address Amer­ica’s long history of racial injustice, the Court will likely soon consider issues related to crim­inal justice, such as claims against excess­ive police force and the abil­ity to sue law enforce­ment offi­cials.

Although it can be diffi­cult to predict how a nominee may rule on future issues given the indi­vidu­al­ized nature of each case, Barrett has publicly aligned herself with her mentor, the late Justice Antonin Scalia. Like him, Barrett is an origin­al­ist, mean­ing she seeks to apply the Consti­tu­tion accord­ing to her under­stand­ing of what the Framers inten­ded it to mean. When accept­ing her nomin­a­tion she said, “His judi­cial philo­sophy is mine, too — a judge must apply the law as writ­ten.”

Scalia, in his time on the bench, held tightly to his origin­al­ist beliefs. He ardently defen­ded the death penalty (even in the cases of juven­iles), and he penned the Court’s major­ity opin­ion on the Sixth Amend­ment’s Confront­a­tion Clause in Craw­ford v. Wash­ing­ton, which provided addi­tional protec­tion to crim­inal defend­ants. In that case, the Court ruled that prior state­ments to law enforce­ment by witnesses who are not avail­able to testify in court cannot be presen­ted as evid­ence unless the defend­ant’s lawyer has an oppor­tun­ity to cross-exam­ine that person.

In Barrett’s short time on the bench, she has writ­ten several opin­ions that shed light on where she may fall on crim­inal justice issues if elev­ated to the high court. As a recent addi­tion to the Seventh Circuit Court of Appeals, confirmed in Octo­ber 2017, some of her views become clear through her dissents, and less so in cases where she joined her colleagues in three-judge opin­ions.

Crim­inal defend­ants’ rights

Barrett issued a dissent in Schmidt v. Foster, a case where a defend­ant’s lawyer was not allowed to parti­cip­ate in a pre-trial hear­ing to decide whether to allow reli­ance on the Wiscon­sin state-law defense of “adequate provoca­tion” to reduce a charge from first- to second-degree homicide. The major­ity held that this hear­ing was adversarial in nature and the defend­ant was denied his right to effect­ive assist­ance of coun­sel under the Sixth Amend­ment during a “crit­ical stage” of the trial. The major­ity determ­ined that a “silenced lawyer” is equi­val­ent to an “absent lawyer,” and there­fore “not compat­ible with the Amer­ican judi­cial system.” In dissent, Barrett argued that the hear­ing was in fact not adversarial, taking the posi­tion that there was no denial of the right to coun­sel.

In another dissent, in Sims v. Hyatte, Barrett disagreed with a ruling to over­turn a convic­tion for attemp­ted murder after prosec­utors had not disclosed key evid­ence as required by the 1963 Supreme Court case Brady v. Mary­land. In the trial, the prosec­utors with­held evid­ence that their key eyewit­ness’s testi­mony was obtained through hypnosis. Barrett acknow­ledged that the undis­closed evid­ence of hypnosis viol­ated Brady, but she wrote that the major­ity was not suffi­ciently defer­en­tial to state court determ­in­a­tions.

Rights of the incar­cer­ated

Barrett’s rulings also indic­ate that she may seek to weaken consti­tu­tional protec­tions for incar­cer­ated indi­vidu­als.

In one case, she dissen­ted from a decision revers­ing the dismissal of a lawsuit brought by two incar­cer­ated men who were seri­ously injured when correc­tions officers shot reck­lessly into a crowd of people after two other incar­cer­ated men had been involved in a scuffle. The case, McCot­trell v. White, was brought under the Eighth Amend­ment’s prohib­i­tion of “cruel and unusual punish­ment.” Barrett wrote that the incar­cer­ated men had not provided enough evid­ence to support their claims, despite surveil­lance video and medical records. She also discoun­ted evid­ence of the officers’ lying in their affi­davits about the incid­ent. This led the major­ity opin­ion to call her view­point on the facts “incor­rect” and warn that under her inter­pret­a­tion, “a guard could blindly unload a shot­gun above a crowd of bystand­ers with impun­ity because making contact is not a certainty.”

Privacy rights

On a differ­ent note, Barret has issued opin­ions that protect people’s Fourth Amend­ment rights and would curtail govern­mental power, tend­ing to follow preced­ent to affirm protec­tions against intru­sion into the private lives of citizens.

For example, in U.S. v. Terry, Barrett wrote that Drug Enforce­ment Admin­is­tra­tion agents had viol­ated a man’s Fourth Amend­ment rights when search­ing his apart­ment because the officers had been gran­ted entry by someone who answered the door but did not live there. In that case, Barrett wrote that because the govern­ment did not have a warrant, the evid­ence discovered in the search could not be used. Simil­arly, Barrett decided in U.S. v. Watson that an anonym­ous tip that “boys” were “play­ing with guns” was not justi­fic­a­tion for police to stop a car.

Gun rights

Regard­ing the Second Amend­ment, Barrett wrote a dissent­ing opin­ion in Kanter v. Barr arguing that “history and tradi­tion” should be relied upon to correctly under­stand the legis­lature’s author­ity to curtail a person’s right to bear arms. In this case, a Wiscon­sin man with a past felony fraud convic­tion was preven­ted, accord­ing to both Wiscon­sin and federal law, from legally obtain­ing a fire­arm. He sued the federal govern­ment and the state of Wiscon­sin to chal­lenge both bans, arguing that they viol­ated his Second Amend­ment rights. The appeals court rejec­ted his claims, but in Barrett’s lengthy dissent, she main­tained that histor­ical evid­ence supports the posi­tion that only those “who have demon­strated a procliv­ity for viol­ence or whose posses­sion of guns would other­wise threaten the public safety” may be legally preven­ted from owning a weapon in perpetu­ity, char­ac­ter­iz­ing the applic­a­tion of the law to the man as an uncon­sti­tu­tional viol­a­tion of his Second Amend­ment rights.

Like any judge, Barrett has varied stances related to proced­ural issues on crim­inal justice matters. While she has often issued opin­ions that don’t advance the claims of some crim­inal defend­ants and incar­cer­ated people, she may be more recept­ive to ruling against the govern­ment when it comes to protect­ing protect­ing indi­vidu­als’ Fourth Amend­ment and Second Amend­ment rights.