1990—In Cross v. State, Florida chief justice Rosemary Barkett dissents from the Florida supreme court’s ruling that probable cause existed for an arrest. After Cross consented to a search of her tote bag, police found a hard baseball-shaped object wrapped in brown tape inside a woman’s slip. Having seen cocaine packaged in this manner on “hundreds of occasions” in their combined 20 years of law-enforcement experience, they then arrested Cross. Barkett’s dissent incorporates the analysis of a lower court that did not even acknowledge, much less credit, the experience of the police officers.
2005—Sitting on the Eleventh Circuit (to which she was appointed by President Clinton in 1994), Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s en banc ruling (in Johnson v. Governor of Florida) that Florida’s felon-disenfranchisement law does not violate the Equal Protection Clause. Barkett and another Clinton appointee also dissent from the ruling that the law does not violate the Voting Rights Act.
2024—A panel of liberal Ninth Circuit judges—Mary Schroeder, Susan Graber, and Jennifer Sung—escapes the bounds of temporal logic. It rules (in Dominguez v. Pina) that an officer sued for use of excessive force was not entitled to qualified immunity because the right that was violated “was clearly established at the time of the incident.” (Emphasis added.) But the incident occurred in September 2017, and the ruling that supposedly “clearly established” the right was issued more than five years later.
In his dissent from the denial of certiorari in February 2025, Justice Alito, joined by Justice Thomas, objects that the panel “fumbled [a] basic tenet of our qualified-immunity doctrine by treating a later-in-time Circuit precedent as a basis for the existence of ‘clearly established law.’” He would summarily reverse the panel’s ruling.