Amy, Tell Me What You’re Gonna Do: Part 1

Amy Coney Barrett meets with Senator Rick Scott (R-FL) as part of her confirmation process. Photo by Office of Senator Rick Scott [Public domain]

In anticipation of the inevitable confirmation of Amy Coney Barrett to take over for (not replace) Ruth Bader Ginsburg on the Supreme Court, there is a lot of nervous hand-wringing/fist-pumping on Twitter and elsewhere, as the ideological factions prognosticate about how she might come down on some major social battlegrounds. Both sides point to her public statements, law review articles, and other expressions of her views to either hail her as a champion of conservatism or wail that she will be the Aunt Lydia ¹ of the Supreme Court, ushering the nation’s women to Gilead.

In the last few years, I have studied a great deal of case law, from old cases for Wednesday Writs to analyzing new opinions to summarize here at OT. One thing I have noticed that had mostly evaded me in my years of study and practice of the law was that while justices are often classified as broadly conservative or broadly liberal by the public, their opinions can be surprising, and don’t always fall in line with how they are expected to rule. That’s because for the most part, most justices attempt to apply a good faith analysis of the law and its application to the facts of a case. How they do so varies among justices, because each has his or her own ideas of how to approach the analysis. Some are textualists, others are originalists, others still believe in the constitution as a living document. These differing philosophies will sometimes lead members of the Court to very different conclusions.

Admittedly, some do tend to stretch or twist their analysis more than others to make it fit a particular outcome that aligns with their apparent political or personal beliefs, but I find that to be the exception (see: Justice Scalia opining about the flag burning case Texas v. Johnson, in which he joined the majority in ruling in favor of the firebug: “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.“) Does Barrett fall victim to this folly more often than not? Is her approach to the law pliable and outcome driven, or does she more or less adhere to her legal principles rather than her personal convictions?

Fortunately, we don’t have to guess blindly; her 3+ years as a federal judge for the 7th Circuit Court of Appeals produced many written opinions and dissents we can examine to get an idea about her jurisprudential proclivities.

Oddly, when I suggested on social media that an examination of her body of decisions was the best way to learn how she might come down on cases, I was met with passionate opposition and links to opinion pieces containing sweeping conclusory statements about who or what she has ruled in favor of in the past. But that is not enough. That is not the whole story. When a new SCOTUS decision is announced, the headlines generally shout about which party or cause has prevailed. An actual reading of the decisions often reveals that while one party has prevailed, the ruling was not an endorsement of their cause or even a final victory.

A good example of this is Masterpiece Cake Shop v. Colorado Civil Rights Commission in 2018, about the refusal of a baker to create a custom wedding cake for a same-sex wedding. The headlines from that ruling- a 7-2 ruling- were along the lines of “SCOTUS Deals a Blow to LGBT Rights” or “Cake Shop Decision is Victory for Religious Liberty”, depending on the slant of the outlet. However, a reading of the opinion (and its several concurrences), reveals that the Court ruled only that the state’s Civil Rights Commission was unfair in its hearing, displaying hostility toward the baker’s religious beliefs rather than remaining neutral. The Court sidestepped any specific ruling on the actual question of the case, which is whether the baker’s refusal was an exercise of religious liberty or one of sexual orientation discrimination. These nuanced decisions based on procedural defects, or even technicalities, are not uncommon at the Court, reached by an application of black letter law rather than more nebulous socially conscious concepts.

So, with that in mind, I turn to the actual, written judicial opinions of Amy Coney Barrett for insight into her judicial philosophy. There are over 107 opinions, concurrences and dissents authored by Barrett in her time at the 7th Circuit; I am but one busy person and obviously cannot read them all. I will start with a few that have been cited as evidence of her greatness/evil and then try to pick out a few from different areas of the law.

Disciplinary hearings for sexual assault allegations on campus: John Doe v. Purdue University

This case is one that has many sexual assault victim’s advocates concerned, because here Barrett rules in favor of a man accused of sexual assault at Purdue. Specifically, the three judge (all female) panel for whom Barrett wrote found that the disciplinary hearing against John Doe was unfairly conducted and ultimately deprived him of a liberty interest without due process, and constituted discrimination on the basis of sex.

Doe was accused of digitally assaulting his some-time girlfriend while she slept beside him. He was not given a copy of the investigative report until minutes before the hearing, nor was he provided any of the evidence against him. At the hearing, Doe was not permitted to call any witnesses, and the alleged victim, Jane, did not appear nor was she required to. In fact, she provided no written or sworn statement, only a written statement from the director of the campus sexual violence support center summarizing Jane’s allegations. Two out of three of the hearing examiners admitted that as of the time of the hearing, they had not even read the report.

A week after the hearing, Doe received a letter informing him that he had been “found guilty” and would be suspended from school for a year, but the letter did not include the reasons underlying the decision. Doe complained to the school ethic’s office, who ordered the examiner to revise the letter and include the basis of the decision. The revised letter restated Jane’s allegations, and concluded that while Jane was a credible witness, John Doe was not (recall that Jane never spoke to the panel nor provided a sworn statement.) The decision and his suspension was upheld by the University, and as a result, John lost his Navy ROTC scholarship.

He filed a lawsuit alleging a 14th Amendment due process violation and discrimination on the basis of sex. In her analysis, Barrett first determines that the totality of the details of the hearing amounted to denial of due process, considering the facts in the light most favorable to Doe as required.² However, unfairness is not enough to trigger a constitutional violation; the denial of due process must result in the loss of “life, liberty, or property.” Barrett then invoked precedent which rejects the argument that one’s education is a property interest, ruling that Doe was not deprived of property when he lost his scholarship as a result of the disciplinary hearing. However, she did recognize a loss of a liberty interest; specifically, Barrett found that Doe lost his occupational liberty to pursue a career in the Navy. Even then, she said, he had to satisfy the “stigma plus” test: he must “show that the state inflicted reputational damage accompanied by an alteration in legal status that deprived him of a right he previously held.” She ultimately decided that he had met the standard, deeming his resulting ineligibility to continue with his naval aspirations as a change in legal status. However, she gives little explanation of how such ineligibility constitutes a legal status, and this particular detail, in my opinion, leaves room for debate.

But the due process ruling was not the part of the decision that caught the attention of the left. Their problem with the ruling had more to do with the sex discrimination finding and the eventual affect her ruling had on Title IX, the federal law prohibiting sex discrimination in any education program receiving federal money.

In Doe’s case, because the disciplinary panel summarily dismissed his “side of the story” while deeming his accuser, to whom they never spoke, a more credible witness, Barrett found it plausible the panel’s decision was based solely on the sex of the accused and the accuser. In support of her finding, she noted that the panel relied upon a letter written by the University’s Title IX coordinator, pointed out a posting by the campus’s sexual violence support center of a Washington Post article entitled “Alcohol is not the cause of rape. Men are”, and the school’s incentive to show a willingness to punish students accused of sexual misconduct. This incentive was a 2011 directive by the US Department of Education, which put schools on notice that their handling of sexual assault cases would be under scrutiny and failure to act appropriately could result in loss of funding. The order also lowered the standard of proof in a resultant disciplinary hearing from clear and convincing (high probability the conduct occurred) to preponderance of the evidence (more likely than not.) Based on Purdue’s interest in being “tough” on sexual assault allegations and not losing funding and other factors suggesting a bias against the male in the case, Barrett’s opinion upheld Doe’s Title IX discrimination claim.

It is important to remember here that Barrett’s decision merely found that the facts presented were sufficient to support John Doe’s lawsuit, and that the lower court should not have dismissed the case at that stage. In other words, Barrett’s decision did not decide that John Doe’s facts are true and that he was definitely denied due process and discriminated against. She merely found that there was enough substance to his lawsuit that it should have been permitted to proceed; he had pleaded facts that, if true, could support a finding in his favor at trial. The case was remanded, where it remains unresolved.

The use of sex discrimination law to protect an accused sexual assaulter caused many to be inflamed with outrage. But a review of the facts, in my opinion, reflect a legitimate use of Title IX protections. Title IX does not exist only to protect women but to curb sex-based discrimination. If the panel did in fact disregard Doe’s testimony in favor of a second-hand account of Jane’s allegations simply because he is a male, that would clearly be discriminatory. On the other hand, one could argue that the panel favored not a man over a woman, but an accuser over an accused. This would be impermissible in a criminal trial, but a disciplinary hearing is not that. Nevertheless, these are facts to be determined by the fact finder, which is the ultimate result of Barrett’s decision.

Barrett’s opinion did have a ripple effect, as circuits around the country adopted the decision as precedent. Then, Education Secretary Betsy DeVos rescinded the 2011 guidance, which was seen by many as a major blow to sexual assault victims on campus. I offer no opinion on this concern, except to say Barrett’s decision was fact-dependent and in my view, correct.

Gun rights for felons: Rickey Kanter v. William Barr

In this case, Wisconsin resident Mr. Kanter was convicted of mail fraud, a federal felony offense. Under both Wisconsin law and federal law, all felons are prohibited from possessing firearms. Kinter challenged this law and lost in federal district court. The Seventh Circuit upheld the district court’s findings, but Amy Coney Barrett dissented.

Mr. Kanter’s crime was essentially Medicare fraud, for collecting payment for orthotic inserts that did not meet Medicare standards. Because his crime is one punishable by more than one year imprisonment, he falls under a decades old federal law which prohibits his possession of a firearm. The law has a provision by which a person in Kanter’s position may petition the US Attorney General for restoration of this right by showing he or she is not a danger to the public. However, these investigations conducted by the ATF were for the most part stopped in the early 90s due to the cost and time required for them. When Kanter’s application for an exception was denied, he filed suit against the government alleging violation of his 2nd Amendment rights. The district court dismissed his case, finding that even if the 2nd Amendment is applicable to convicted felons, the government’s “compelling interest” in protecting the public from gun violence permits the blanket rule against gun possession by the entire class of persons convicted of felonies, regardless of their individual circumstances. The court cited the opinions of various other circuits who reached the same conclusion. They pointed to DC v. Heller, in which the prohibition against firearm possession by felons was deemed “presumptively lawful”. But the court also examined the statute under an “as applied” analysis: even if the law is valid on its face, is it being applied unconstitutionally in some cases?

The Seventh Circuit majority concluded that the Second Amendment historically has applied to “responsible law-abiding citizens”, making anyone who has committed a serious crime outside of its protections. This includes violent crimes and felonies, the latter of which are deemed serious by virtue of the year+ prison sentences attached. Mr. Kanter’s crime of fraud and dishonesty, they reasoned, showed a disregard for the law making him unfit to possess a firearm. The majority ruled that the application of the law against Mr. Kanter survives the relevant intermediate scrutiny, recognizing a sufficient link between the law and the compelling government interest in protecting the citizenry from gun violence by those who are prone to breaking the law.

Amy Coney Barrett’s dissent was longer than the majority opinion. First she states that rather than the majority’s approach that presumes that the 2nd amendment was written with the assumption that it would not be applicable to everyone (such as dangerous felons), she thinks the better approach is to acknowledge that the right belongs to all, but that the government possesses the ability to strip the right from certain people. While she did not deny that the government may have the power to strip the right of gun possession from entire categories of people, she did not believe that to mean all felons no matter what they are convicted of. It may mean all those convicted of violent crime, perhaps, but to apply to all felons is too broad.

After a lengthy discussion of historic limitations of civic vs. individual rights that would have befit her former boss, Antonin Scalia, she concludes that the government’s ability to strip civic rights- such as the right to vote or jury service- from unvirtuous citizens is not applicable to individual rights, which the right to bear arms was held to be under Heller. ³ This makes sense; no serious person suggests stripping equal protection or due process from the unvirtuous in America. Therefore, so-called “virtue exclusions” do not apply to the Second Amendment:

“Thus, although the right protected by the Second Amendment is not unlimited, see Heller, 554 U.S. at 595, its limits are not defined by a general felon ban tied to a lack of virtue or good character.”

Nevertheless, she concedes that history does support the right of the government to strip certain individuals of the right to bear arms, if those persons are deemed dangerous. And while she agrees that congress or state legislatures may deem certain classifications of people dangerous without resorting to case-by-case analysis, it must be able to justify their action by showing its nexus to a strong public interest. Finding the statutes here to be “wildly overinclusive” she points out that the prohibition equally classifies a violent spousal abuser and a person selling pigs without a license in Massachusetts. Crimes such as the latter, and those like Kanter’s mail fraud, do not easily lead to the conclusion that the perpetrator is violent and dangerous: “Thus, the reasoning that supports the categorical disarmament of violent felons—that past violence is predictive of future violence—simply does not apply.” She was unpersuaded by the studies cited in the majority opinion that even felons convicted of non-violent crimes are more likely to commit violent crimes in the future. She would have ruled that the federal statute and the Wisconsin state law are unconstitutional as applied to Kanter, and advance no significant government interest.

I don’t disagree with Barrett’s reasoning here. Though some extreme gun control advocates may not like the outcome, her analysis passes a “common sense” filter that the majority opinion stretches out

Part 2 covering Sentencing Reform: U.S. v. Uriarte and Prisoner’s rights: John McCottrell v. Marcus White can be read here

Part 4 covering interviews and extrajudicial writings that have made news can be found here

1. Aunt Lydia is a sort of enforcer of the regime in The Handmaid’s Tale, a woman who serves as a kind of warden and punisher of the enslaved women of Gilead.
2. This is because the Court was reviewing the lower court’s granting of the University’s motion to dismiss. In deciding such a motion, the moving party must prove that the facts alleged by the plaintiff, even if true, do not entitle the plaintiff to any relief. Therefore, for the purposes of considering such a motion, a court accepts the plaintiff’s facts as true, and so does the higher court on review.
3. She clarifies in a footnote that she does not take issue with felon disenfranchisement, because such is expressly permitted in the language of the fourteenth amendment.