Saturday, May 1, 2021

Supreme Shift (Part 4): Final on Barrett's Past Record

As Nick raised his glass, Father Keller said out loud, "Finally."
—from WHERE HAVE YOU GONE WITHOUT ME, by Peter Bonventre

Yes, "Finally," Part 4.

Chip Somodevilla/Getty Images
Late last year, in the previous installments in this series, we saw a pretty clear pattern. We were looking at now-Justice Amy Coney Barrett's record while a judge on the 7th Circuit Court of Appeals. Specifically, we were reviewing the disagreements she had with her colleagues, in cases she felt so strongly about that she chose to go public, and to expend the time and effort to write a dissenting opinion.

In the dissenting opinions that we have reviewed, she argued against the majority's protection of inmates, in support of drastic restrictions on immigration, in favor of gun rights for convicted felons, and to overlook a prosecutor's constitutional violation, (See Part 2 and Part 3 in this series.) 

As noted previously, these are the positions to be expected of an immigration resistant, law & order, pro-gun rights, conservative politician or voter. Good or bad, that is what it is. Now let's finish with her other, revealing dissents.

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In U.S. v. Uriarte (2020), the defendant claimed that, under the so-called First Step Act (2018), the trial judge was wrong to impose an enhanced recidivist sentence. A majority of the 7th Circuit panel agreed because the defendant's previous sentence, which the trial judge considered as the predicate for determining recidivism, was illegal and had already been vacated. Judge Barrett, on the other hand, argued in dissent that the previous illegal sentence should still count and that the enhanced sentence in question should be upheld.

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In another case, United States v. Rutherford (2019). Judge Barrett similarly dissented to argue against reviewing a sentence. In that case, the defendant had asked the trial judge to reconsider his sentence. When the trial judge declined, the defendant appealed. The majority of Barrett's colleagues, applying the traditional rule that motions to reconsider extend the time to appeal, permitted the defendant to seek their review. But Barrett dissented, arguing that the traditional rule was no longer valid (under the Federal Rules of Criminal Procedure) and that any opportunity the defendant had to appeal had expired.

Right to Counsel
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Judge Barrett dissented in one other criminal case we have not yet discussed. Same result: against the defendant. In this case, Schmidt v. Foster (2018), the trial judge called the defendant and his attorney into chambers. The judge then proceeded to question the defendant about his defense, while not permitting the attorney to advise his client or to participate in the question and answer in any way. The majority of the appellate panel ruled that the judge had violated the defendant's right to counsel. But Barrett dissented, arguing that there was no right to counsel during the judge's questioning because it took place without the prosecutor and, therefore, it was not a "critical stage" of the criminal proceeding.
(Subsequently, the entire 7th Circuit [en banc] reconsidered the ruling and, in a deeply divided decision, held that the right to counsel might have been violated, but the violation was not so clear as to require reversing the trial judge.) 

Judge Barrett dissented two more times while on the 7th Circuit. In each of these cases, she cast her vote to join a dissenting opinion written by one of her colleagues. Each of these two cases involved abortion. After what we've already reviewed about her record, is there any doubt which side she took on abortion rights?

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In Planned Parenthood of Indiana & Kentucky v. Commissioner of Indiana State Dept. of Health (2018), a panel of the 7th Circuit invalidated a state law that restricted the reasons for which the right to choose might be exercised. Because the law applied to early, as well as later-term abortions, the panel held that the law violated Supreme Court precedents that established a clear right to choose prior to viability. When the 7th Circuit as a whole (en banc) declined to reconsider that decision, Barrett dissented. She cast her vote with the dissenting opinion which urged a narrower view of pre-viability abortion rights.

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Similarly, the following year, in Planned Parenthood of Indiana & Kentucky v. Box (2019), a panel had invalidated a state law that required an ultrasound at least 18 hours prior to any abortion. The panel held that this 18-hour waiting period, together with the two trips to the facility that it would require, was an unjustified burden ("undue burden") on a woman's right to choose. The 7th Circuit declined to reconsider that ruling en banc, just as it had declined with regard to the ruling the year before. Barrett again joined the dissenting opinion, this time arguing that the state's law should be allowed to take effect because the issue was not clear.

We have now reviewed all of the dissents--opinions and votes--of Amy Coney Barrett while an appellate judge on the 7th Circuit Court of Appeals, just prior to her appointment to the Supreme Court. Remember, the purpose here is not to label her decisions and arguments right or wrong, wise or foolish, etc. But it is to connect the dots and discern any patterns. 

And one pattern could not be more clear: she took positions one would expect of a social and political conservative. Remember also, she took those positions when she felt so strongly that she was willing to disagree with the majority of her colleagues publicly, openly proclaim that they were wrong, expend collegial capital by risking offense and, when writing the dissenting opinion, expend the time and effort and resources of her chambers to do so.

Just consider a public official who took the opposite positions of then-Judge Barrett in all those cases. Consider a public official who sided with injured inmates against correctional officials, with an accused against a prosecutor who failed to disclose helpful evidence, with an accused against a judge who questioned him without the advice of counsel, with defendants who challenged harsh sentences, with restricting gun rights, but against restrictions on immigration, and against limitations on abortion rights. Clearly a social and political liberal.

There would be little hesitancy in so-labeling a politician who took those positions. And there is little reason for hesitancy in characterizing now-Justice Barrett's record as an appellate judge: it's just like that of a socially and politically conservative politician. 

It is of course possible that she will undergo some dramatic transformation--she would not be the first--or that there is some other reason to suspect that her past record is not necessarily prologue. Otherwise, the strong probability at this point is that Amy Coney Barrett will significantly increase the ideologically conservative direction of the Supreme Court.