Saturday, November 21, 2020

Supreme Shift (Part 3): More Barrett's Record

In the last post, we looked at two opinions of then-Judge Amy Coney Barrett while on the 7th Circuit Court of Appeals. They were dissents. One involved immigration, the other gun rights. 

Patrick Semansky/AP
Forget about originalism or strict construction or deference to the legislative branch or other species of "judicial restraint." (I feel compelled to keep repeating that.) If you simply considered how a social and political conservative would be expected to vote--or more specifically, how a conservative Republican politician would be expected to vote--you'd have guessed her positions correctly.

In those opinions--dissenting opinions, which are the most self-revealing--Barrett disagreed with her colleagues on immigration restrictions and on gun regulations. In one case, the majority invalidated some strict Trump administration restrictions on immigration; she thought they were fine. (Cook County v. Wolf, 2020.) In the other, the majority upheld federal and state laws prohibitiing firearm possession by convicted felons; she argued against those restrictions on gun rights. (Kanter v. Barr, 2019.)

Let's now look at two more of her dissenting opinions. One dealing with prisoner rights and one with rights of the accused. Again, consider how a social and political conservative would be expected to vote. Yep, you guessed right.

Prisoner Rights
In McCottrell v. White (2019), two inmates, peacefully eating lunch, were struck by buckshot. Two correction officers had fired shotguns into the dining hall, triggered by a scuffle between other inmates which, however, had already been quelled. The non-involved injured inmates instituted a lawsuit claiming that their 8th Amendment rights were violated.

The majority at the 7th Circuit ruled that the lawsuit could proceed. There was evidence to show that the correction officers had fired the shotguns directly into the dining hall in bad faith and for no legitimate purpose.

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In her dissenting opinion, Barrett argued that the lawsuit againt the correction officers should have summarily been dismissed. To quote her directly, there was "no evidence to prove [that the guards] intentionally hit  anyone...The guards may have acted with deliberate indifference to inmate safety by firing warning shots into the ceiling of a crowded cafeteria in the wake of the disturbance. In the context of prison discipline, however, 'deliberate indifference' is not enough." [My emphasis.]

So, the majority held that the guards' firing into the dining hall in bad faith and without any legitimate purpose was enough to support the injured inmates' lawsuit. Barrett insisted that even criminal recklessness on the part of the guards would not suffice.

Fair Trial
In Sims v. Hyatte (2018), the defense learned in the course of a post-conviction hearing that the prosecution had withheld evidence. The prosecution's sole witness identifying the defendant had been hypnotized to enhance his recollection. That witness testified at trial as an eyewitness, but the prosection never disclosed the hypnosis.

Barrett's colleagues in the majority ruled that, because defense counsel could have used the hypnosis information to impeach the prosecution's witness, that information was Brady material (Brady v. Maryland, 1963) and, accordingly, the prosecution was obligated to disclose. Inasmuch as that information would have been beneficial to the defense in discrediting the state's only eyewitness, the majority ordered that the writ of habeas corpus be granted and the conviction reversed.

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In her dissent, Barrett acknowledged that "the undisclosed evidence of [the witness's] hypnosis constitutes a Brady violation." Nevertheless, she argued that it was not such a "clearly established" Brady violation that justified ruling for the defendant. According to Barrett, under current Supreme Court precedent, deference was owed to the state court below because that court applied the correct standard under Brady. The fact that the state court reached an erroneous conclusion was not enough to grant habeas corpus to the defendant.

So, Barrett disagreed with colleagues when they sided with innocent inmates who were injured by the recklessly indifferent actions of prison guards. And she disagreed with her colleagues when they reversed a conviction that had been obtained with a conceded constitutional--i.e., Brady--violation. Add that to what we discussed in the previous post--i.e., Barrett's dissent against immigration rights and dissent against restricting convicted felons' gun rights.

A pattern begins to emerge that is hard to miss. Dissenting to disfavor immigration, to restrict protection for inmates, to disregard a prosecutor's constitutional violation, and to support gun rights for convicted felons. Must it be repeated. This is hardly a matter of judicial restraint versus activism or any of the various permutations of either of those. This is support for the same positions one would generally expect of a socially and politically conservative politician or voter. Good or bad, wise or foolish, that is what it is.

We'll continue with then-Judge Barrett's record of revealing dissents in the next post.