The confirmation vote on Judge Barrett will take place on Monday. Every U.S. Senator who wants to read her judicial opinions has probably already done so, and the rest assuredly know how they will vote, but let’s pretend otherwise. Say there actually were an undecided Senator, looking to Judge Barrett’s opinions to make a decision. Say, even less realistically, that the Senator knew about this blog and was reading it for advice. Which opinions would I advise the Senator to look at?
Judge Barrett herself identified the following eleven opinions as the most important she wrote while on the Court of Appeals for the 7th Circuit:
- Kanter v. Barr
- Yafai v. Pompeo
- Cook County v. Wolf
- Doe v. Purdue University
- Rainsberger v. Benner
- Grussgott v. Milwaukee Jewish Day School
- Wallace v. GrubHub Holdings, Inc.
- A.F. Moore & Associates, Inc. v. Pappas
- Casillas v. Madison Avenue Associates, Inc.
- EEOC v. Costco Wholesale Corp.
- Schmidt v. Foster
[2020 Questionnaire at 30-49]
I am not convinced all those cases are particularly important but I will not dispute her list. That she regards those cases as significant is itself demonstrative of her judicial ideology. Instead, I suggest that you also read the following nine opinions:
- Emmis Communications Corp. v. Illinois National Life Insurance Co.
- Gadelhak v. AT&T Services, Inc.
- McCottrell v. White
- Webb v. Financial Industry Regulatory Authority, Inc.
- United States v. Uriarte
- Beley v. City of Chicago
- United States v. Walker
- United States v. Moody
- United States v. Watson
For the sake of brevity, I have confined myself to nine opinions (so that the total list gives twenty). Judge Barrett has written many other opinions that warrant more attention than they have received. Moreover, I have limited myself to the opinions Jude Barrett herself wrote, and I have surely overlooked the importance of some cases by limiting myself to the opinion itself. I also have not yet read her decisions on immigration law. Nevertheless, the cases on the above list would (I think) be very helpful in forming a view on Judge Barrett.
These opinions were chosen either to offset the cases Judge Barrett put forward or to illustrate aspects of her jurisprudence that I find significant. In particular, I have tried to highlight cases that cut against appointing her to the Supreme Court.
Sounds uncivil, doesn’t it? I admit, I don’t believe that we should be filling the seat at present, for reasons that are probably already familiar to all readers (although I will expound these reasons here). Nevertheless, I have no (conscious) hostility towards Judge Barrett herself. Yet a seat on the Supreme Court of the United States is the highest judicial office in the land. A candidate should not be presumed fit for that office; she should be presumed unfit for it until she proves otherwise. (Readers should take into account that, after reviewing all her judicial opinions and other writings, the ABA Standing Committee on the Federal Judiciary deemed her well qualified to fill it). This may be nit-picking. Even I’m not sure the concerns I raise below are justified, let alone that they would be disqualifying. Nevertheless, I would be remiss in my duties unless I called them to the notice of our hypothetical senator.
With that in mind, two opinions in particular stand out. The first is Emmis Communications Corp. v. Illinois National Insurance Co. This opinion stands out because the panel voluntarily withdrew its decision and affirmed the district court. This is not necessarily an admission of error but that is one way to interpret it (and, frankly, seems to me the best way). Now, even assuming it were such an admission, it would not be inherently disqualifying. Many appellate judges have withdrawn an opinion. Moreover, all judges make mistakes. As Justice Jackson wrote in Brown v. Allen, the Supreme Court itself is “not final because [it is] infallible, but [it is] infallible only because [it is] final.” That the panel, which presumably included Judge Barrett, recognised this one is to its credit. Nevertheless, a possible mistake is potentially an argument against appointment to the Supreme Court.
More important, however, is why Judge Barrett reached a conclusion that was (in my opinion) mistaken. Both the district court and Emmis Communications alerted Judge Barrett to controlling law that ambiguous insurance policies were to be interpreted as providing coverage. [Emmis Brief at 17-21; Attachment to Emmis Order at 16-17] The contract was surely ambiguous. Nevertheless, Judge Barrett construed the policy as seemed best to her, even though doing so excluded the dispute from coverage. A lawyer is not an English teacher. She interprets terms according to legal doctrine as well as rules of grammar and syntax. Put simply, I think that Judge Barrett attaches too much weight to the strict meaning of words, and other cases below demonstrate this.
The second case that stands out is Gadelhak v. AT&T. For one thing, the subject matter is important: we all receive a lot of automated texts from databases, especially as the election approaches, and it matters whether or not those are lawful. For another, the lengthy discussion of standing – which AT&T itself had not raised – demonstrates Judge Barrett’s fastidious attention to procedural and jurisdictional issues. Judge Barrett found standing here but in other cases, such as Protect Our Parks, the plaintiff was less fortunate. Whether this is laudably thorough or excessively strict is for you to decide. Finally, the case perfectly illustrates the way in which Judge Barrett construes statutes.
It was difficult to pick only seven other cases. The third is McCottrell v. White, in which Judge Barrett would have held that totally unnecessary force in prisons is not “sadistic and malicious” – and, therefore, not actionable – unless it is intended to cause specific harm to others. First, this strikes me as another example of excessive strictness with the use of words. In everyday parlance, we typically use “sadistic” or “malicious” to mean deliberately causing specific harm; even if this is the terms’ exclusive meaning in regular English, which I doubt, it is not necessarily the extent of its meaning as a legal standard. Indeed, the majority cited case law that unjustified use of force was considered inherently sadistic and malicious. [McCottrell at 25, 31] Second, part of her reasoning rested on the lack of any cases addressing a similar argument, even any rejecting it. In other words, the argument had not been made before. That is not a reason to discount the argument.
The latter concern is reinforced by Webb v. FINRA. This decision could also be interpreted as applying jurisdictional limitations too strictly, potentially depriving a party of the benefits of federal court, but I am more concerned with its reasoning. Judge Barrett found arbitration fees would be unrecoverable under Illinois’ third party litigation exception to the American Rule. This analysis strikes me as needlessly restrictive, as it did the dissent. There was no need to apply this doctrine, because the fees may have been recoverable as damages for breach of contract. More importantly, that the Illinois courts had not yet applied the doctrine to comparable facts does not mean it did not extend to them. Again, this strikes me as unwilling to logically extend established law to new facts. Judge Barrett argued that this was not so, that she had not extended the doctrine because doing so would be inconsistent with it. [Webb, note 3 on page 9] You might think that she has the better argument. You might also think that other cases show a proper willingness to extend principles (or, as in Casillas, excessive readiness to distinguish applicable cases). That is for you to decide.
Given the presence on this list of three decisions for criminal defendants, it would be misleading to include no decisions for the prosecution in criminal cases, which constituted the majority of those decisions. Perhaps that is to be expected – every appellate judge endures a large number of meritless appeals – but in several cases Judge Barrett dissented from a holding for the defendant, concurred to suggest rulings that would hinder future defendants, or tightened a rule. Candidates for inclusion were: United States v. Uriarte; Chazen v. Marske; Sims v. Hyatte; United States v. Rutherford; Conroy v. Thompson; and United States v. Perrone.
I ultimately decided on Uriarte for many reasons. First, the First Step Act was a recent, high-profile development. Second, because Judge Barrett was not constrained by binding precedent or higher authority, this case may better indicate how she would rule on the Supreme Court. Third, her reasoning is more widely applicable in this case than in others. Finally, this further demonstrates the concerns I raised above. The majority, not just of a panel but of the entire Court of Appeals, rejected Judge Barrett’s interpretation as based too much on language and not enough on legal background. (Judge Barrett did have counter-arguments to this. [Uriarte at 23-24]) The majority also opined that United States v. Pierson was not apposite to this situation, while Judge Barrett would have applied it. Although this is coming at the problem from the other end of the problem – excessive eagerness to extend a decision rather than a refusal to do so – it is another example of a determination to force new situations into the mould of past decisions, to the detriment of original arguments.
Beley v. Chicago is chosen as a counter-part to Doe v. Purdue University. In Purdue, Judge Barrett applied the protections of the Fourteenth Amendment to a situation in which the 7th Circuit had not yet done so. [Doe at 21] In Beley, by contrast, she recognised no liberty interest where numerous federal judges (albeit no appellate judges) had found one. [Beley, note 3 on page 5]
United States v. Walker is provided in part to reinforce Beley. By demonstrating an outcome favourable to a sex offender of the worst kind, it rebuts the suggestion that Judge Barrett’s decision in Beley was driven by antipathy to sex offenders. Additionally, it demonstrates how Judge Barrett analyses whether a specified criminal offence fits into a disciplinary enhancement. This analysis applies to SORNA in Walker but it could as easily apply to significantly lengthened sentences, as demonstrated by the majority in Chazen v. Marske (with which Judge Barrett concurred) and arguably by Judge Barrett’s decision in United States v. Hagen.
The remaining cases, Moody and Watson, were chosen to demonstrate Judge Barrett’s attitude towards guns in criminal cases. It is possible that her attitude in these cases – towards, respectively, the Fourth Amendment and the high standard of proof in criminal cases – may be more widely applicable. It is also possible that the outcomes in these cases were driven, consciously or otherwise, by a strong support for gun rights. Regardless, in both of these cases, Judge Barrett presumed the best of firearm possession: in Watson, Judge Barrett emphasised that, in states in which it is legal, gun possession (even in a high crime area) does not justify a search; in Moody, Judge Barrett assumed that those who unlawfully purchased guns were permitted to own guns and had no criminal intentions. Finally, in Moody, Judge Barrett suggested that the district court may be able to re-apply its sentence despite its error because Mr. Moody’s conduct was particularly wrongful. Whether this is pragmatic or evasive is, again, up to you.