Sunday, November 15, 2020

Supreme Shift (Part 2): Barrett's Record

(Since the previous post, Amy Coney Barrett was confirmed by the Republican controlled Senate, without a single Democratic, and Republican President Trump who nominated her was defeated in the election by Democratic candidate Joe Biden.  Back to now-Justice Barrett.)

Yuri Gripas/Abaca Press/TNS
In her three years as a federal appellate judge, Amy Coney Barrett established a distinct record. That is--need it be said again--distinctly politically conservative.

And need I repeat, not judicially conservative, as in judicial restraint, strict interpretation, adherence to stare decisis, deference to the laws and policies of the elected branches and the states, textualism, originalism, etc. But politically conservative, as in voting like a conservative Republican politician would vote on the those "hot-button" issues like guns, abortion, immigration, criminal law, etc. Whether that's good or bad, right or wrong, wise or foolish is not the point. It's just what her record is.

From the time she was nominated by President Trump and confirmed by the Senate to the 7th Circuit Court of Appeals in 2017, Barrett disagreed publicly with the majority of her colleagues on that court several times. That is, she dissented either in a separate opinion of her own or, at times, she voted to join a dissent written by others. When she did dissent, it was uniformly for the politically conservative legal result. And as judicial scholars understand, dissents are extremely revealing.

Dissents tell us what it is that a judge thought--oftentimes, felt--was very important. So important that it justified going public with a disagreement. Consider that the dissenting judge is announcing to the world, "I lost." The judge is announcing that, despite having lost the majority vote, "I feel compelled to register a public disagreement."

A public disagreement, that is, instead of going along with the majority. Instead of going along to get along. It entails expending collegial capital. Irritating and, yes, sometimes antagonizing the majority by telling the world that my colleagues on the court are so seriously wrong, about something that is so seriously consequential, that the public must know just how wrong they are and how their decision is so harmful to the law, society, or both.

Beyond that, if the judge who disagrees with the majority is actually authoring a dissenting opinion--i.e., not just voting to join someone else's dissenting opinion--that judge is personally choosing to expend time and effort and the resources of her chambers to engage in a public act of protest. She is not required to do so. There's no institutional requirement or obligatory directive that she must do so. This is purely a matter of personal choice. So too is casting a vote to join another dissenting colleague, even if not as exacting as writing one's own dissenting opinion.

That's a long way of restating that dissents are very revealing. Voting in dissent and, even more so, writing a dissenting opinion.

So let's start looking at then-Judge (now-Justice) Barrett's dissents. Let's consider the common threads. You know: connect the dots. 

In several cases, Barrett joined the majority of her colleagues or actually wrote the majority opinion, ruling against immigrants and immigration rights--e.g., approving deportation, despite issues of due process or equal protection or the likelihood of torture upon return to the home country.

But she dissented in one case, Cook County v. Wolf (2020). The majority had ruled for the immigrant.

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In that case, the majority of Barrett's court rejected the Trump administration's expansion of the "public charge" rule. That Trump expansion would deny entry to any immigrant who might need any public assistance at any time. That expansive restriction on immigration was held by the majority to be well beyond the authorized bounds of governing immigration law.

Barrett authored a dissenting opinion. She approved the Department of Homeland Security's restrictive rule. She argued that the immigration law should be read to bestow very broad regulatory discretion to the Department, enabling it to decide who should be considered a "public charge" and, therefore, inadmissible.

Gun Rights
Barrett dissented in several cases involving various issues of criminal justice. In her dissenting opinions, she always argued against the accused, or the criminal defendant, or the inmate, or the convict--except once. That one case involved the gun rights of convicted felons.

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In that one case, Kanter v. Barr (2019), the convicted felon, following his release from prison, challenged the constitutionality of laws that prohibit his possession of firearms. The court upheld the federal and state laws in question. The majority held such laws to be reasonable regulations consistent with a non-absolute 2nd Amendment right to bear arms. According to the majority, both Congress and the Wisconsin legislature found that persons who have committed felonies, whether their crimes were violent or not, were more likely to abuse firearms.

Barrett disagreed. In her dissenting opinion--again, the only dissenting opinion or vote in which she sided with a criminally accused, a defendant, an inmate, or a convict--she sided with the convicted felon. According to her, the federal and state laws were unreasonable restrictions on gun rights. Declining to defer to Congress or the state legislature, she argued that such restrictions should only apply to persons proven to be dangerous, not merely convicted of felony that was non-violent.

We'll continue with  other cases involving criminal justice in the next post. But it already bears repeating after discussing only two cases: the point is not whether then-Judge Barrett's positions were right or wrong, wise or foolish, etc., etc. The point is the common thread--i.e., politically conservative. Not judicially conservative or restrained.

In the immigration case, Barrett declined to give a strict reading to a federal statute and, instead, approved an extremely broad reading by an administrative agency. In the gun rights case, she declined to defer to the other branches of the federal government or to the state--both of which had adopted what they believed to be reasonable restrictions.

This is not strict construction or deference to the politically accountable branches and the states. Not judicial restraint. It's today's political conservativism.