Bench Memos

Law & the Courts

Slate Hit Piece on Judge Barrett Badly Misfires—Part 2

In my Part 1 post, I showed that Mark Joseph Stern, in his Slate article attacking Seventh Circuit judge Amy Coney Barrett, badly messes up his account of the nine cases that he invokes against Barrett. In this post, I will offer some broader criticisms of his hit piece.

In her two-plus years on the Seventh Circuit, Judge Barrett has taken part in nearly 200 reported decisions and has written nearly 60 opinions. That’s on top of the larger number of unpublished decisions that she has taken part in. Any serious review of Barrett as a judge would attempt to take account of her whole record.

Had Stern made any effort to do so, he would have encountered much that would complicate his simplistic flawed narrative. To cite just a few examples:

Barrett joined an opinion by liberal Obama appointee David Hamilton (Gonzalez Ruano v. Barr) that held that an alien had demonstrated statutory eligibility for asylum. She also wrote an opinion (Ruderman v. Whitaker), joined by liberal Clinton appointee Diane Wood, that rejected the Board of Immigration Appeal’s conclusion that an alien was statutorily inadmissible. So much for Stern’s claim that Barrett “consistently rules against immigrants seeking relief from deportation.”

Barrett joined an opinion (Price v. City of Chicago—see my fuller discussion here) that ruled that Chicago’s “bubble zone” ordinance against anti-abortion sidewalk counselors did not violate the counselors’ First Amendment rights. That rather complicates Stern’s baseless insinuation that Barrett’s judging is warped by pro-life sentiments.

As for Stern’s charge—based on zero actual evidence—that Barrett “has little sympathy for most powerless people”: Barrett has ruled for “powerless people” on lots of occasions, not because she was improperly indulging her “sympathy,” but because she was applying the law impartially.

Barrett has voted to reverse the Social Security Administration’s denial of benefits in several cases. See, e.g., Derry v. Berryhill, Akin v. Berryhill, Thompson v. Berryhill, and Kaminski v. Berryhill.

She wrote an opinion (Goplin v. WeConnect) that denied an employer’s effort to compel arbitration; the employee in whose favor she ruled alleged violations of the Fair Labor Standards Act and sought to pursue a class action under state law.

She wrote an opinion (United States v. Watson), joined by Hamilton, that held that the police violated a felon’s Fourth Amendment rights when they blocked his car from leaving a parking lot (and found that he had a gun). She wrote another opinion (United States v. Terry), joined by Wood, that held that DEA agents executing an arrest warrant for conspiracy to possess and distribute heroin violated the suspect’s Fourth Amendment rights when they concluded that a woman who answered the door at the suspect’s apartment while wearing a bathrobe had authority to consent to a search of the premises.

She voted to reverse summary judgment and deny qualified immunity in a case (Howard v. Koeller) involving alleged retaliation by a prison guard. She also voted to deny qualified immunity (Broadfield v. McGrath) on a claim that jail officials used excessive force against a detainee. She also joined an opinion by Judge Hamilton (Wallace v. Baldwin) that, reversing the district court, held that a prisoner was entitled to pursue a claim that his prolonged isolation in solitary confinement violated his constitutional rights. So much for Stern’s ill-founded claims that Barrett has an “eagerness to weaken constitutional protections for inmates injured by prison guards” and a “zeal to protect these guards from consequences.”

She has voted to reverse several district-court judgments that dismissed section 1983 claims against state officers for alleged civil-rights violations. See, e.g., Miller v. Larson, Walker v. Price (opinion by Barrett), Brooking v. Branham, and Phillips v. Illinois Department of Finance.

Yes, this is the judge (and longtime law professor) who Stern, unembarrassed by his most extravagant rhetoric, alleges “has spent her career opposing the very principles of justice and equality for which [Justice] Ginsburg stands.” Ridiculous.

Lest anyone be concerned by this litany of rulings: On my review of them, I think that Barrett probably got them all right. More broadly, I believe that she, like many other of the rumored leading candidates, would be an outstanding nominee for a Supreme Court vacancy.


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