When Judges Disagree – Judge Amy Coney Barrett’s Concurrences and Dissents

Judge Amy Coney Barrett, President Trump’s newest nominee to the U.S. Supreme Court has served on the U.S. Court of Appeals for the Seventh Circuit since 2017.  In that time, Judge Barrett has sat on a number of three-judge panels and has authored and joined hundreds of judicial opinions.  While most cases handled by the Seventh Circuit are decided unanimously, in order to understand what kind of justice Judge Barrett would be, it is instructive to look at the cases where her view differed from the other judges on the panel.  To that end, we have summarized key cases in which Judge Barrett concurred or dissented from the majority on her panel.  We’ll then follow up with a post where Judge Barrett’s view attracted a majority, but where some judges disagreed.

Criminal Law/Procedure

Schmidt v. Foster, 891 F.3d 302 (7th Cir. 2018), rev’d en banc, 911 F.3d 469 (7th Cir. 2018).   – This was a collateral challenge to the defendant’s murder conviction.  At his trial, the defendant had sought to use a provocation defense. To ensure that the defendant had an evidentiary basis for the defense, the trial judge interviewed him in an ex parte hearing, with the defense attorney present but unable to participate.  On habeas review, the majority of the Seventh Circuit overturned the conviction, finding that preventing the defendant from accessing his counsel during the ex parte hearing violated his rights under the Sixth Amendment.  Barrett dissented, arguing that there was no evidence that the defendant’s rights were violated.  Barrett’s view was ultimately vindicated by the en banc Seventh Circuit, where the full court held in a 8-3 decision that, while the ex parte hearing was “constitutionally dubious,” it could not be reversed under the deferential standard that federal courts must apply when reviewing state court decisions.

Sims v. Hyatte, 914 F.3d 1078 (7th Cir. 2019).  – This was a collateral challenge to the defendant’s attempted murder conviction.  After his conviction, it came to light that the prosecutor had withheld evidence that the sole witness to identify the defendant had undergone hypnosis prior to trial to enhance his recollection of the incident.  On habeas review, the majority of the Seventh Circuit panel overturned the conviction, in an opinion by Judge William Bauer.  Bauer found that the evidence was required to be disclosed under the Supreme Court’s rulings in Brady v. Maryland and Giglio v. United States, and that the prosecutor’s case rested on the eyewitness testimony, making the disclosure essential.  Barrett dissented, arguing that, while the lack of disclosure did violate the defendant’s rights under Brady, the state court decisions refusing relief were not an unreasonable application of Supreme Court precedent, and, as such, there was no basis for the Seventh Circuit to grant relief.  

Chazen v. Marske, 938 F.3d 851 (7th Cir. 2019). – The question in this case was whether the petitioner’s conviction for “escape” qualified as a violent felony under the Armed Career Criminal Act.  Judge Michael Scudder wrote for the court in ruling that the conviction did not so qualify based on recent precedent narrowing the scope of the Act.  Barrett concurred, but wrote separately to argue that the court needs to simplify the caselaw addressing such petitions.

United States v. Rutherford, 810 Fed. App’x 464 (7th Cir. June 23, 2020).This suit involved an appeal filed by an individual seeking resentencing under the First Step Act.  In an unpublished order, the Seventh Circuit exercised jurisdiction but affirmed the district court’s decision regarding the sentence.  Barrett dissented, arguing that the appeal was not timely, and, as such, the Seventh Circuit lacked jurisdiction over the appeal. 

United States v. Wilson, 963 F.3d 701 (7th Cir. 2020). – The question in this case was whether police had reasonable suspicion to stop and search the defendant based on a dispatch call description that did not match the defendant.  Judge Daniel Manion, writing for the court, found that the police had reasonable suspicion based on the totality of all the facts.  Barrett concurred, noting that, while the defendant “wasn’t even in the ballpark” when compared to the dispatch description, his flight from the police justified their subsequent stop and search under Supreme Court precedent. 

United States v. Uriarte, 2020 U.S. App. LEXIS 29234 (7th Cir. 2020) (en banc).In this case, an 8-3 majority of the en banc Seventh Circuit held that the First Step Act could be applied to the benefit of a defendant who had committed his offense and was convicted before the Act’s passage, but had his sentence vacated and was resentenced after. Barrett authored a dissent joined by Judges Michael Brennan and Michael Scudder, arguing that the Act should not apply to the defendant because he was initially sentenced prior to the Act’s passage, and that the subsequent vacating of the sentence by the Seventh Circuit did not allow him to take advantage of the Act. 

Second Amendment

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019). – This was a Second Amendment challenge to federal statutes that barred the plaintiff, who had been convicted of one count of mail fraud, from owning a gun as a felon.  Judge Joel Flaum, writing for the panel majority, rejected the challenge, finding that the Supreme Court had expressly noted the constitutionality of felon dispossession laws under D.C. v. Heller and McDonald v. City of Chicago.  Judge Flaum then found that historical evidence regarding the scope of felon dispossession was inconclusive, and, applying intermediate scrutiny, upheld the laws. Barrett dissented, arguing that the history of gun rights showed that felons were traditionally only barred from holding weapons when there was evidence of their dangerousness.  As such, Barrett argued that a blanket ban on felons owning weapons violated the Second Amendment. 

Section 1983 Suits

McCottrell v. White, 933 F.3d 651 (7th Cir. 2019). – This case involved a 1983 suit for injuries brought by inmates in an Illinois prison who were injured after guards fired warning shots with a shotgun over a crowded prison hall.  Judge Ilana Rovner, writing for the panel majority, held that the injuries suffered by the inmates were sufficiently serious to potentially violate the Eighth Amendment, and that disputes of material facts between the parties needed to be resolved by a jury.  Barrett dissented, arguing that, as plaintiffs admitted that the guards were not intentionally trying to hit anyone with the shotgun, they could not prove that the guards acted “maliciously and sadistically” and, as such, could not recover. 

Williams v. Wexford Health Sources, Inc., 957 F.3d 828 (7th Cir. 2020).The question in this case was whether, under Illinois law, a prisoner exhausted his administrative claims by filing an emergency petition in the prison system. Judge Diane Wood, writing for the panel, held that the prisoner had exhausted his remedies as he reasonably believed that filing the emergency procedure was necessary.  Barrett concurred, disagreeing that the inmate had exhausted his remedies, but arguing that the prison had failed to prove lack of exhaustion under their burden. 

Reproductive Rights

Planned Parenthood of Ind. & Ky. v. Box, 949 F.3d 997 (7th Cir. 2019) (en banc). – After a district court judge granted an injunction banning a series of Indiana restrictions on abortion clinics, and a 2-1 panel of the Seventh Circuit affirmed, the state sought en banc rehearing before the 11 judge court.  The court denied rehearing by a 6-5 margin.  While Barrett did not write her own dissent, she joined a dissent to denial of en banc rehearing written by Judge Michael Kanne, who argued that the full court should have considered the scope of pre-enforcement challenges to state laws. 

Administrative Law

Cook Cnty. v. Wolf, 962 F.3d 208 (7th Cir. 2020). – This was a challenge to the Trump Administration’s “public charge” rule, which interpreted the Immigration and Nationality Act (“INA”) to deny admission to the U.S. or adjustment of status to any individual who receives certain cash and non-cash government benefits.  Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois granted an injunction against the regulation, and a divided panel of the Seventh Circuit denied to stay Judge Feinerman’s injunction.  Barrett dissented against the denial of stay.  After the Supreme Court stepped in and stayed the injunction, the Seventh Circuit affirmed Feinerman’s ruling striking down the regulation on the merits.  Barrett dissented again, arguing that the regulation is a reasonable interpretation of the INA’s ambiguity on defining a public charge. 

1 Comment

  1. Pingback: When Judges Disagree – Dissents From Judge Barrett’s Positions | The Vetting Room

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