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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.