Bench Memos

Supreme Court Slams Rosemary Barkett

“Can an officer take actions that place a fleeing motorist at risk of serious injury or death in order to stop the motorist’s flight from endangering the lives of innocent bystanders?”  In today’s ruling in Scott v. Harris, the Supreme Court, by a vote of 8 to 1 (with Justice Stevens in dissent), answers that question in the affirmative and reverses the ruling below by an Eleventh Circuit panel.  Regular readers of “This Week in Liberal Judicial Activism” will not be surprised to learn that the Eleventh Circuit opinion was written by hyper-activist judge Rosemary Barkett


Orin Kerr (who served as co-counsel for the winning side) explained at length here that Barkett’s description of the facts, as shown in a police video, while not “technically inaccurate,” was so “obviously incomplete” as to be highly distorted.  Justice Scalia’s opinion for the Court likewise faults Barkett’s account:  “[R]eading the lower court’s opinion, one gets the impression that respondent, rather than fleeing from police, was attempting to pass his driving test.”  And:  “Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury.”  In a footnote, Scalia, noting one fact that Barkett got right—that the police officer’s ramming of the fleeing motorist’s car was not threatening any other vehicles or pedestrians—offers Barkett this backhanded praise:  “This is not to say that each and every factual statement made by the Court of Appeals is inaccurate.”


Inspired by Scalia’s comment, I offer my most favorable possible assessment of Barkett’s judicial career:  I would not say that each and every ruling that she has made is lawless.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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