Bench Memos

Law & the Courts

Slate Hit Piece on Judge Barrett Badly Misfires—Part 1

In this Slate piece yesterday, Mark Joseph Stern fires his ammunition at Seventh Circuit judge Amy Coney Barrett, a leading contender for the next Supreme Court vacancy. Stern manages, however, to get wrong just about everything that matters.

In this post, I’ll address each of the nine cases that Stern invokes in supposed support of his sweeping mischaracterizations of Barrett’s record. In a second post, I’ll have some further comments on those mischaracterizations.

Let’s start with the cases in which Stern makes glaring errors:

Schmidt v. Foster: Stern complains that Barrett “wrote (again in dissent) that a criminal defendant did not have a right to counsel when a judge grilled him on the details of his crime.” In fact, Barrett never reached the question whether the defendant, Schmidt, had a right to counsel, and expressly left open that, if that question were actually teed up for decision, he might: “Perhaps the right to counsel should extend to a hearing like the one the judge conducted in Schmidt’s case.” (Slip op. at 44.)

What Stern completely misses is that Schmidt’s case involved his application for a writ of habeas corpus—a challenge, that is, to his state-law conviction for murder—not a direct appeal of a federal conviction. The relevant question in addressing Schmidt’s habeas application was whether the judge’s decision to question Schmidt without counsel in a pretrial hearing involved an unreasonable application of clearly established Supreme Court precedent. Barrett explains at length that “[n]o Supreme Court precedent addresses the question presented by this case: whether a defendant has the right to counsel when testifying before a judge in a nonadversarial proceeding.” Schmidt’s habeas petition therefore failed.

Stern also somehow misses that the en banc Seventh Circuit, by a vote of 7 to 3 (with Barrett in the majority), reversed the panel majority’s decision and adopted the position in Barrett’s dissent. 

Given Stern’s highly selective practice of citing judges who disagree with Barrett when he thinks it helps his case, I’ll note that the district judge (Charles N. Clevert Jr.) who denied Schmidt’s habeas petition was a Clinton appointee and that the two judges in the panel majority were liberal Democratic appointees Diane Wood and David Hamilton. (Wood and Hamilton were joined in the en banc dissent by Ilana Rovner, who, though appointed by President George H.W. Bush, is no one’s idea of a judicial conservative.)

Ramos v. Barr: Stern faults Barrett for “cast[ing] the deciding vote permitting the deportation of a lawful permanent resident who resided in the U.S. for 30 years, even though—as the dissent pointed out—the law banishing him may violate equal protection.” (Emphasis added.) That curious last phrase is a tell. The dissenter (the liberal Hamilton) did indeed offer the very weak assessment that Ramos’s equal-protection claim “might be right” and that “it is not impossible” that he might prevail on it. But that assessment validates the majority’s conclusion (in a five-sentence order) that Ramos had failed to demonstrate the “substantial likelihood of success on the merits” required for a stay of his deportation.

Stern leaves the impression that Ramos was deported without ever having his equal-protection claim addressed. He somehow overlooks that several months later a unanimous merits panel rejected Ramos’s equal-protection claim (and cited decisions of the Second Circuit and the Ninth Circuit in doing so).

Kanter v. Barr: In a nasty swipe, Stern writes: “If Barrett has little sympathy for most powerless people, there is one class she favors: individuals convicted of a felony who seek to possess firearms.” He complains that Barrett’s dissent in this case “was larded with historical references and jabs at other judges for treating the Second Amendment as a ‘second-class right,’” and he charges that her dissent “was an obvious audition for the Supreme Court.”

Barrett’s dissent in fact affirms the proposition that “the state can take the right to bear arms away from a category of people that it deems dangerous”—a category that, she notes, is “simultaneously broader and narrower than ‘felons’—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness.” What the state can’t do, she concludes from her lengthy historical analysis, is deprive felons of their Second Amendment rights “solely because of their status as felons.”

Stern conveniently omits to mention that the felon in this case who was seeking restoration of his right to possess a firearm had committed the offense of—lock your doors now!—falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and of billing Medicare on that basis.

To contend that Barrett’s dissent “was larded with historical references” is a strangely pejorative way to refer to her impressive historical analysis, which runs over some twenty pages. I have no idea what “jabs at other judges” Stern is imagining. In her only reference to a “second-class right,” Barrett is quoting Justice Alito’s plurality opinion (more precisely, from a portion of his lead opinion that garnered a plurality rather than from the majority portions) in the Second Amendment ruling in McDonald v. City of Chicago.

Planned Parenthood v. Commissioner: Stern contends that Barrett joined a dissent by Judge Frank Easterbrook “[1] suggesting that states may prohibit women from terminating a pregnancy because of the fetus’ race, sex, or disability [and] [2] suggesting that states may enact total bans on pre-viable abortions in contradiction of Supreme Court precedent.

The first supposed suggestion is a stretch: Easterbrook argued that the Supreme Court’s precedents “did not address” the validity of an anti-eugenics law. The second supposed suggestion is an outright falsehood. The case had nothing to do with a “total ban.” (Stern also misses that Easterbrook concurred in the denial of en banc rehearing on this issue.)

Planned Parenthood v. Box: Entangled in his own confusion, Stern asserts that “Barrett also voted to vacate a decision that would’ve forced minors to notify their parents before undergoing an abortion under all circumstances, a direct violation of Supreme Court precedent.” I gather that he means roughly the opposite of what he says: in other words, he is objecting that Barrett supposedly voted to vacate a decision that relieved minors of a parental-notification requirement.

What Barrett did do was vote to rehear en banc a panel decision (liberal majority of Hamilton and Rovner) that barred an Indiana law from ever taking effect. That law, enacted in 2017, provides that when a minor seeking an abortion obtains a judicial order exempting her from obtaining parental consent, the judge shall give notice to her parents of the planned abortion unless the judge finds that such notice is not in the minor’s “best interests.”

Stern is plainly wrong to say that the law required parental notification for a minor’s abortion “under all circumstances.” For the same reason, he’s wrong to say that the law was “a direct violation” of the Supreme Court precedent, Bellotti v. Baird (1979), that he links to. Indeed, the panel majority expressly disclaimed reliance on Bellotti: “Because we decide this appeal based only on an application of Casey’s undue burden standard, we need not and do not decide whether Bellotti applies to all parental notice requirements.” (He’s also wrong to say that the law required notification by the minor.)

Now let’s look at some of Stern’s somewhat more subtle errors and distortions:

McCottrell v. White: Stern’s lead claim in his piece is that Barrett’s “troubling dissent” in this case somehow “signaled her eagerness to weaken constitutional protections for inmates injured by prison guards.” In this case, two inmates sued two prison guards for injuries they suffered when the guards discharged their shotguns over a crowded prison dining hall. The legal question on appeal was whether the district court properly granted summary judgment in favor of the guards on the inmates’ claim that the guards violated their Eighth Amendment right against cruel and unusual punishments.

Applying settled Supreme Court precedent, Barrett explained that the inmates, in order to establish an Eighth Amendment violation for the use of excessive force, had to show that the guards acted “maliciously and sadistically.” On her understanding of the briefing, the inmates “did not argue—and had no evidence to prove—that the [guards] intentionally hit anyone.”

There is a lot of back and forth between the majority and Barrett, and I can’t possibly do justice to it concisely, but the relevant point here is that their differences turned heavily on such highly particularistic matters as whether there was any plausible evidence that the guards fired directly toward the inmates rather than into the ceiling. Barrett’s dissent doesn’t undertake to revise “constitutional protections”; she and the majority simply disagree on how those protections apply in this case.

Stern posits that the fact that the inmates were struck by buckshot—or that buckshot “tore through their bodies,” in his more colorful rendering—is evidence that the guards shot directly into the crowd. But the majority itself acknowledges that their injuries were compatible with ricochet from the ceiling. Stern also contends that Barrett “blithely dismiss[es] evidence that ‘the officers lied in their affidavits about the direction of the shots.’” But Barrett’s point is that the inmates “have no evidence that the officers shot into the crowd” and thus can’t defeat summary judgment.

Stern selectively assesses Barrett’s rulings by looking to see who she agreed or disagreed with, but he doesn’t note that the district judge who granted summary judgment in favor of the guards was Amy J. St. Eve. In her long tenure as a district judge, St. Eve earned a reputation as “a middle-of-the-road judge with no bias towards either conservative or liberal judicial philosophies.” That helps explain why home-state Democratic senators Dick Durbin and Tammy Duckworth supported President Trump’s nomination of her to the Seventh Circuit and why the Senate unanimously confirmed her nomination.

Alvarenga-Flores v. Sessions: Stern faults Barrett for her majority decision “permitting the deportation of an immigrant to El Salvador, where he may be tortured and killed by gangs, because of ‘inconsistencies’ in his testimony.” But it was the immigration judge and the Board of Immigration Appeals, not Barrett, who concluded that the immigrant lacked credibility. As Barrett explains, the reviewing court is obligated to provide a “deferential standard of review” under which the immigration judge and the Board need only provide “specific reasons” for his credibility determination. Barrett faults the dissenter (an Obama district-judge appointee sitting by designation) for failing to apply that deferential standard.

Yafai v. Pompeo: Stern objects to Barrett’s ruling “approving the denial of a visa to the Yemeni wife of a U.S. citizen—even though, as the dissent put it, the consular officer may have merely relied on a ‘stereotypical assumption’ that Yeminis [sic] commit crimes.”

But what was at issue in the case was whether the doctrine of consular nonreviewability—that is, the general rule that judges can’t review visa decisions made by consular officials abroad—allowed an exception in this case. As Barrett explains, the Supreme Court has recognized a limited exception when a visa denial implicate a constitutional right of an American citizen. But under that limited exception, the visa denial must be respected if the reason given is “facially legitimate and bona fide.” Here, on the assumption that the exception applied, the challenge failed because the consular officer’s decision was facially legitimate and bona fide. Barrett explains how the dissent’s proposed additional hurdle—proof that the official adequately considered the evidence in the visa application—contradicts Supreme Court precedent.

As Stern points out, the en banc Seventh Circuit denied rehearing of Barrett’s ruling. The vote was 8 to 3 (yes, the same liberal trio of Wood, Hamilton, and Rovner in dissent).

Sims v. Hyatte: Stern asserts that Barrett in dissent “voted to uphold the conviction of Mack Sims, who was found guilty of attempted murder on the basis of eyewitness testimony secretly procured through hypnosis.” (Emphasis added.) As with Schmidt v. Foster, Stern completely obscures that the case involved Sims’s habeas petition.

Thus, while Barrett states that she thinks that “the undisclosed evidence of [the eyewitness’s] hypnosis constitutes a Brady violation”—something Stern doesn’t acknowledge—she determines that “it was neither contrary to, nor an unreasonable application of, clearly established federal law for the Indiana Court of Appeals to conclude otherwise.”


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