Amy, Tell Me What You’re Gonna Do: Part 2

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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46 Responses

  1. Jaybird says:

    Nevertheless, I find her reasoning in both of these cases rather flimsy and a bit of a reach outside of common sense. I therefore dissent from both of Amy Coney Barrett’s dissents.

    I agree.Report

  2. North says:

    Thanks for this Em. Very interesting read.Report

  3. Oscar Gordon says:

    She really does seem to be giving the guards every reasonable doubt. Again, I come back to, “What would the court do if I had fired a warning shot that injured someone because I did not take care where the shot went?”

    If the court does not apply that analysis to the actions of government agents, then they are, IMHO, reaching awful hard to protect bad actors.Report

    • InMD in reply to Oscar Gordon says:

      You can really see her as a student of Scalia in these cases. That’s how a lot of his criminal decisions read, maybe with the exception of Crawford and its progeny.Report

      • Oscar Gordon in reply to InMD says:

        Very much so. The logical gymnastics she goes through to defend agents of LE/CJ is very much in that same vein. It was certainly one of Scalia’s glaring blind spots.Report

    • Chip Daniels in reply to Oscar Gordon says:

      From my perspective as a layman, conservative judicial theory always seems to hew to the Wilhoit principle, which is just a modern coining of the idea of class hierarchy.

      That the law isn’t blind, but that it operates differently depending on the group or person. If you are a disfavored group like prisoners, then no action by the government can be too harsh, no burden too heavy.

      But if you are a favored group like the Little Sisters, any government request, even if merely to fill out a piece of paper, is an undue burden and must be struck down.

      This holds true throughout conservative theory, which is why what seems like bizarre hypocrisy or inconsistency (say, about the flickering commitment to federalism or religious freedom) is actually a consistent political theory where the favored class always wins.Report

      • LeeEsq in reply to Chip Daniels says:

        I’m still not a fan of the Without principle because it seems to pert. Our side might say they believe that all groups should treat all groups equally but I can’t shake the feeling that liberals believe some groups are more equal than others. There seems to be more romantic reverence for various indigenous groups living a traditional life style than there is for the Amish despite the similar rejection on modernity. The only difference being that liberals imagine that indigenous groups as being more egalitarian and they associate the Amish with Patriarchal Christianity or something. Likewise, very observant Muslims are given more romantic reverence than Ultra-Orthodox Jews. It’s why the hijab is almost fetishized as a sign of inclusion while the dress codes of Orthodox Judaism are seen as anti-feminist and to be destroyed despite both having the same reasons behind them. Is its hard for me to take the idea that our side is really invested in true equality between all groups when you have these sorts of differences based on romantic reverence.Report

        • Chip Daniels in reply to LeeEsq says:

          That’s a fair point.

          Its like my criticisms of white liberals whose policy choices always seem to reinforce segregation. Its a lot easier to preach a creed than to live it.

          What I see in conservative theory though is that they have dropped even the creed of inclusiveness and now openly speak of hierarchy and minority rule.Report

          • Oscar Gordon in reply to Chip Daniels says:

            I don’t see as much dropping of pretense, but I do see it an awful lot of motte & bailey behavior.
            E.g. We need guns to protect ourselves from the government, but when the actions of the government (i.e. LE) are criticized, suddenly the government needs to be protected from criticism.

            So I do think that Wilhoit is right in his claim, I wouldn’t necessarily call that the definition of conservatism, but rather a it’s condition of our current political system.Report

            • InMD in reply to Oscar Gordon says:

              I see that as more of a problem of politics and culture than anything specific to the judiciary. It’s also worth remembering that a consistent civil libertarianism is something that requires defending. There are plenty of philosophies in the market place for which it is not a priority and some that reject it altogether.

              There are also legitimate reasons for courts to be cautious about treating everything as a constitutional issue. But it isn’t like there aren’t alternatives. Legislatures can always pass laws setting rules and standards around these things, they just tend not to because so few fight for it.Report

              • Oscar Gordon in reply to InMD says:

                Yeah, I’m not saying it’s a problem of the judiciary, per se, but rather how politics makes everyone dumb in predictable ways.Report

            • Aaron david in reply to Oscar Gordon says:

              Republicans aren’t Libertarians, just like Democrats aren’t. And while both have issues that that they care about in that direction, they both have huge blind spots. LE is the rights, unfortunately.Report

          • Pinky in reply to Chip Daniels says:

            Where does she openly speak of hierarchy and minority rule? If it’s open, if she espouses a creed of exclusion, it should be easy to cite specific text with, not merely implied bias or a weighting of priorities you object to, but explicit embrace of hierarchy.Report

        • Oscar Gordon in reply to LeeEsq says:

          Thank you Lee, I was going to say something very similar.Report

        • Jaybird in reply to LeeEsq says:

          “Disparate Impact” used to be a thing. Maybe it should be again.Report

        • CJColucci in reply to LeeEsq says:

          In my neighborhood, we have both hijab wearers and women who dress in Orthodox Jewish garb. Nobody seems to be worked up about about it. I grew up in the ’60s and ’70s, so I have no standing to take others to task for dressing funny. Even if they are dressing funny.

          No doubt there’s Somebody Somewhere who whoops it up for the hijab while claiming that the traditional Orthodox Jewish female garb is something to be “destroyed.” I do know some people who say the opposite, which means that the hijab wearers need to be defended where the Orthodox Jewish women do not, but that’s a matter of local circumstance, not of general pro-hijab principle or “romantic reverence.”Report

        • Saul Degraw in reply to LeeEsq says:

          This is a fair point but there does seem to be a large part of this county that is always about to go into full breakdown as it gets less white, less Christian (especially for Protestant Evangelicalism), etc. The fever dreams have happened before but they seem to be in full force now especially as polling shows that people under 40 are increasingly secular and do not come back once they have kids unlike previous generationsReport

          • DensityDuck in reply to Saul Degraw says:

            On the other hand, the polls were done before This Year.

            One of the big reasons that people don’t move home is that they can’t get health insurance coverage without their job, and their job is in the town where they had their kids, and their job insisted that it HAD to be done IN THE OFFICE, so, there you are. And now employers have been forced by circumstance to admit that maaaaaaaybe you don’t HAVE to be in the office to do your job, maybe you can do it anywhere that has an internet connection, and so maybe we’ll see more people saying “this city sucks, childcare is expensive, my hometown is nice and my parents will watch the kid for free…”Report

            • Jaybird in reply to DensityDuck says:

              We’re going to have people moving to The Sticks and Amazon will serve them very well for 60% of their stuff but they’ll have to go to Wally World for the rest of it.

              And there will be some of them that will make a new community in their new homes in The Sticks.

              But many of the rest will continue to live on the Reddit and complain about their backwards neighbors and the People Of Walmart and they’ll be miserable. Or more miserable.Report

              • DensityDuck in reply to Jaybird says:

                Complaining about your neighbors being dorks is a time-honored small-town tradition, though. And it feels more like talking about family, and less like being angry at imaginary people on the internet–who can be as horrible as you need them to be to justify your anger-gasm. Like, with family, yeah you’ll tell the funny story about what your brother did, but you won’t say “and he probably did that as an expression of support for White Supremacy”, because you know your brother and you know damn well he isn’t like that.Report

      • Saul Degraw in reply to Chip Daniels says:

        I think this is part of it but I also think that there are elements of existential dread and/or ideological dread that are more interesting to unpack. Religion is on the wane in America, Americans under 45 or so are secular in ways that previous generations were not. And the evidence shows that having kids does not bring them back to religion as was previously assumed. Religious conservatives are terrified of this. Religious liberals do not like either but are not in full panic over forcing religion because they are liberal. They are more sad/resigned perhaps. I think a lot of religious conservatives sincerely believe that they can reverse the clock on secular America. But they all seem to imagine themselves as the last pastor or parishoner.

        On the economic front, I keep on thinking of the famous Lewis Powell speech from the early 1970s where he declares that the American System of Free Enterprise is under attack. There seem to be a significant number of Americans who only see freedom and liberty through the lenses of business, commerce, and economics. All other freedoms either are secondary and/or flow from the first three. Now they are confronted with at least two generations of people who do not remember the Reagan 80s and liberalism on the wane but are still relatively young (the youngest are probably in their mid to late 40s) and are freaking out about how under 40 America is more open to the welfare state and regulation and going against everything they were told to hold dear.Report

        • Jaybird in reply to Saul Degraw says:

          Something to consider: The Late Catholics considered the Early Protestants to be heretics. It took the Peace of Westphalia to reach an accord of sorts (and there were troubles that lasted a loooooooooooong time after that).

          The new Wokism is a new heresy.

          So when you say “Religion is on the wane”, I am looking out and seeing that business is picking up.Report

          • DensityDuck in reply to Jaybird says:

            and when I say there’s gonna be a Christian revival in this country, I don’t mean Baptist, and I don’t mean Mainline Protestant, and I don’t mean Catholic. I mean, like, Twelve Apostles Christianity, Sermon On The Mount Christianity, “breaking bread with tax collectors and whores” Christianity.Report

          • Chip Daniels in reply to Jaybird says:

            Nothing would devastate modern conservative theory more, than regarding “wokism” as a religion.Report

  4. “If the law were supposed to apply here, it would say ‘the sentence’ instead of ‘a sentence'”. Seriously? It’s the Bible Code as applied to jurisprudence. The description of when the new sentencing guidelines should apply is not precise; it wasn’t written to describe this exact circumstance. Pretending that it was in order to reach the conclusion she favors is classic textualism.Report

  5. Burt Likko says:

    She wrote that the plaintiffs have not argued that the defendants aimed their guns with intent to hit them with buck shot, thus cannot prove the guards acted “maliciously and sadistically”, and while it may have been “deliberate indifference”, that is not enough for an 8th amendment excessive force claim. Her argument rests on an assumption that purposely firing in a manner that is likely to rain down buckshot onto bystanders is not the functional equivalent of intending to hit them with buckshot.

    I am pretty sure that “deliberate indifference” is the standard for an 8th Amendment violation, having just researched this issue about six weeks ago in a prison conditions habeas corpus case I am handling. Granted, I’m in the 9th Circuit. Is the standard different in 7th Circuit jurisprudence? (And those guards sure seem deliberately indifferent to me.)Report

    • Em Carpenter in reply to Burt Likko says:

      It is the standard for cases involving prison conditions, but not an 8th amendment excessive force claim, which is the claim here. She cites Farmer v. Brennan (
      “The Court emphasized, however, that “‘application of the deliberate indifference standard is inappropriate’ in one class of prison cases: when ‘officials stand accused of using excessive physical force.'”Report

  6. Aaron david says:

    Another great post EM. But I wouldn’t mind hearing more about that 4th amendment case, just to get a holistic look at her jurisprudence.Report

  7. Fish says:

    Good stuff, Em. Thank you.Report

  8. Saul Degraw says:

    “Her views on abortion rights are of immense speculation as she is set to replace the late Justice Ruth Bader Ginsburg on the court and could be a pivotal vote in potential challenges to Roe.”

    1. Her views on abortion rights are not subject to immense speculation unless someone is a dense and too cute by half idiot.

    2. I don’t know why the media plays these games.Report

    • Pinky in reply to Saul Degraw says:

      The press doesn’t understand the difference between personal convictions and judicial actions. They maybe have noticed that all these arch-conservative hard right opponents of women’s rights haven’t actually overturned Roe, but they don’t think through what that might mean.Report

  1. October 5, 2020

    […] (Note: This is part 3 of a series in which I examine opinions written by Amy Coney Barrett during her tenure on the 7th Circuit Court of Appeals. My intention is to gain and provide insight into her approach to legal analysis, beyond the headlines and partisan spin. Part 1 can be found here; Part 2 can be found here.) […]Report

  2. October 7, 2020

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

  3. October 8, 2020

    […] examining the opinions and writings of Judge Amy Coney Barret. Part 1 can be read here, Part 2 can be read here, and Part 3 can be read […]Report

  4. August 15, 2021

    […] to try to get a picture of what could be expected from her. I spent hours on it, and I wrote a four part series for this very website, tweeted out far and wide for anyone who wanted to know how Barrett might […]Report