Saturday, September 26, 2020

What Libertarians Need to Know About Amy Coney Barrett Statements and Judicial Rulings

Amy Coney Barrett

Below is a look from a libertarian perspective at the statements and rulings of the likely Trump nominee for the Supreme Court, Amy Coney Barrett.

President Trump is expected to officially announce his choice for the Supreme Court on Saturday afternoon.

The good from a libertarian perspective:

  •  Barrett wrote in 2017 that Chief Justice John Roberts pushed the Affordable Care Act beyond its plausible meaning in order to save it.
  •  Barrett dissented when the appeals court upheld a decision restricting the Second Amendment rights of a felon convicted of mail fraud. She said non-violent offenders should not lose their constitutional right to firearms possession.
  •  In a dissent, Barrett defended the Trump administration's rule denying immigrants permanent residence if they become regular users of public assistance.
  • Barrett helped to block the U.S. Equal Employment Opportunity Commission's effort to stop an employer from transferring Chicago-area employees based on their race or ethnicity. The agency had accused AutoZone of making the transfers to reflect area demographics.
  •  Barrett ruled that the Age Discrimination in Employment Act does not apply when policies impact plaintiffs unintentionally.The ruling went against a 58-year-old job applicant who lost out to someone half his age when the company sought to hire a person with less than seven years' experience.
  • In the case Rainsberger v. Benner, Barrett authored an opinion in which she denied qualified immunity -- a protection for government officials from being sued for judgment calls they make on the job -- for a police officer who was alleged to have submitted a document "riddled with lies and undercut by the omission of exculpatory evidence" that led to a man being put in jail for two months.
  • In a 2019 opinion, she concluded that Drug Enforcement Administration agents violated the Fourth Amendment when they searched a suspect's apartment based on the consent of a woman who answered the door but did not live there.
  • In 2018, Barrett concluded that an anonymous tip did not provide reasonable suspicion for police to stop a car in which they found a man with a felony record who illegally possessed a gun. "The anonymous tip did not justify an immediate stop because the caller's report was not sufficiently reliable," she wrote for a unanimous three-judge panel. "The caller used a borrowed phone, which would make it difficult to find him, and his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful."
  • Barrett has written several opinions overturning excessive federal sentences. In a 2019 case, she said a methamphetamine dealer should not have received extra time because of prior convictions under a state truancy law. That same year, she concluded that a judge should not have imposed a four-level enhancement for possessing a gun in connection with a drug offense without citing any evidence of that connection.
The bad from a libertarian perspective:

  • In a 2019 decision, two members of a three-judge panel said Indiana courts and a federal district court had erred by rejecting a defendant's claim that prosecutors improperly withheld exculpatory evidence when they tried him for attempted murder. According to Supreme Court's 1963 decision in Brady v. Maryland, the failure to disclose such information is a violation of due process...The defendant in the 7th Circuit case, Mack Sims, did not discover until after he was convicted that the victim, whose testimony was crucial in identifying Sims as the perpetrator, had undergone hypnosis prior to the trial, which may have tainted his recollection of the crime. Between the attack and the trial, 7th Circuit Judge William Bauer noted in an opinion joined by Judge David Hamilton, the victim's account changed, as did his confidence that Sims was the man who had shot him... In these circumstances, they concluded, the use of hypnosis was an important piece of information that could have affected the outcome of the trial.In her dissent, Barrett said the majority had failed to give the Indiana Court of Appeals proper deference. "Even though I think that the undisclosed evidence of [the victim's] hypnosis constitutes a Brady violation, it was neither contrary to, nor an unreasonable application of, clearly established federal law for the Indiana Court of Appeals to conclude otherwise," she wrote. "If I were deciding the question de novo, I would agree with the majority that the suppressed evidence of hypnosis undermined confidence in the verdict. But because I can't say that the Indiana Court of Appeals' decision was 'so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement,' I would affirm the district court's denial of Sims's habeas corpus petition."
  • She was part of a three-judge panel that rejected the state GOP’s request for a preliminary injunction against enforcement of the lockdown order issued by Gov. J.B. Pritzker. The appeals court also rejected  the state GOP claim that Pritzker was selectively enforcing the political gatherings ban by allowing and even endorsing massive Black Lives Matter street protests, while refusing to allow other political groups to assemble



  1. Her “pro’s” aren’t so libertarian, to me anyway, as they are pro’s of most of the statist republican folks I know. I agree some definitely are.
    She voted in favor of lockdowns and is for forced vaccinations.
    Those two things, IMO, erase every pro, except maybe one or two, combined. Either one of those alone erases all her pros.

    1. Yes, she is bad news. I don't know where the lady from FL was on those two issues, but I liked RW's reasoning that she may be more for liberty based on her background. Oh well. Just confirms we can't trust Trump.

  2. It is hard to believe that a jurist would use the phrase, "I can't say," in a written opinion.

  3. I'm mostly optimistic that Amy would be a decent to quite good jurist, as the realistic pool of candidates goes anyway. I knew her personally as she was my professor in law school for two years (I even got the highest grade in one of them). I can candidly say there were better professors at the time--and in a few cases--who exhibited more erudite legal minds and a greater understanding of (or interest in?) fundamental principles of Anglosphere jurisprudence and its intersection with Christendom and Western traditions. That said, she was good as a professor and would be a credit to any school.

    I don't necessarily see Amy as a natural thought leader against the zeitgeist, like a Clarence Thomas. This is not an insult, as most of us are not. At the time, Amy came off to me as more the very smart student that excels at the technocrat aspects of the law and enjoys all the "legislative puzzles" that litigators must face, but didn't explore much of the philosophical, moral and religious dimensions beyond mainstream ground where many others have tread.

    I don't want to sound unfair because honestly, I have read very little of her work and am judging from classroom materials, lectures and the experience of my peers. I do know she takes her Catholicism and Christian calling very seriously, so she will not be easily exploited by the deep state, and she is not connected in any way to the shadowy networks of the New World Order (i.e. she's just a smart normie).

    Lastly, she did surprise on occasion and exhibited some uplifting virtue in her personal life. If I had to guess, she could become influenced by one of the other conservatives on the court and perhaps grow in that role, starting as a follower but maybe branching out from there. However, there could be a countervailing temptation (she will be in DC) to be the "smart student" on the court and show her technical chops and "peacemaking" neutrality; which unfortunately means her rulings may be too slavish to pro-government precedent on less "personal" matters (such as economic ones), as she dazzles through the logic puzzles presented by confounding, ambiguous and contradictory legislation and decisions.

    But I'm reasonably hopeful she will be a net positive on the court for liberty and be superior to Chief Justice Roberts and the liberal wing (and perhaps others!). But people should set their expectations; unless we get a lot more Justice Thomases, the Court at best will stem the tide and slow down the advance of progressivism, but it isn't stopping to unwinding it.

    1. As a fellow commenter, I'm humbled.

    2. Thanks for sharing what you know about her Perry.
      I think she will get her tryout right off the bat, or very soon, and we will know what she will be.
      If she is thinks the State has the right to lock down it’s serfs and forced vaccines then that is all I need to know about what kind of person she is. But I am against having the Supreme Court period and at least lean towards Jefferson’s views on it.
      Trump didn’t pick this woman any more than Biden picked Harris, I’m not sure how Thomas managed to get on there but I don’t think anyone close to his philosophy will ever be allowed again. All of it is contrived and a big game in my opinion, keep the plebs marching and voting and make them think they have some kind of voice in it all. Haven’t we figured out that the federal government is just a big club? With the exception of a couple, they are all working together to ultimately control our spending(fed coin and fed bank account) they have all played the Covid game to take more freedoms from us, they all have been a part of destroying small business and helping big corporations take over all business(corporatism), they have all used the public school system to raise up robots who do what they are told by “authority”.
      It’s all a joke. On us.

  4. A "Judge" is a thug who threatens you with violence so you will associate with him/her.
    Are you or your "representatives" threatening someone with an initiation of violence today?