When Judges Disagree – Dissents From Judge Barrett’s Positions

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.  Last post, we looked at key cases in which Judge Barrett concurred or dissented from the majority on her panel.  Today, we review cases where Judge Barrett’s view attracted a majority, but where some judges disagreed.

Criminal Law/Procedure

Reynolds v. Hepp, 902 F.3d 699 (7th Cir. 2018) – This was a collateral challenge to a conviction where the state of Wisconsin cut off payment to the plaintiff’s attorney during his appeal.  Barrett joined the majority opinion by Judge David Hamilton dismissing the suit under the deferential standard of review.  Judge Diane Wood dissented, arguing that the attorney had prejudiced the petitioner by ceasing work on the appeal after the state had cut off funding, and that the state court decision denying relief was an unreasonable application of Supreme Court precedent.

Immigration Appeals

Alvarenga-Flores v. Sessions, 901 F.3d 922 (7th Cir. 2018) – Mr. Alvarenga-Flores was seeking asylum in the United States, arguing that he was under threat from gang members in El Salvador.  An immigration judge ruled against him, finding him not credible, and the Board of Immigration Appeals affirmed.  Barrett wrote for the panel majority in affirming the Board.  Judge Thomas Durkin, sitting by designation, dissented in part, disagreeing that the adverse credibility determination was justified.

Yafai v. Pompeo, 912 F.3d 1018 (7th Cir. 2019) – In this case, the plaintiff, a U.S. citizen, challenged the denial of a visa to his wife, alleging that the consular official made up a claim that his wife had attempted to smuggle children into the United States.  Barrett wrote for the majority in dismissing the claim under the consular non-reviewability doctrine, which holds that visa decisions cannot be challenged in federal court.  Judge Kenneth Ripple dissented, arguing that the doctrine departed from Supreme Court precedent and was read too broadly by the majority.  The Seventh Circuit later denied en banc rehearing over the opinion, with Judges Diane Wood, Ilana Rovner, and David Hamilton dissenting, stating that the majority opinion was “a dangerous abdication of judicial responsibility.”  Barrett authored a concurrence, joined by Judge Joel Flaum, defending her opinion.  In the concurrence, Barrett argued that her position was compelled by Supreme Court precedent.

Civil Procedure

Webb v. Financial Indus. Regulatory Auth., 889 F.3d 853 (7th Cir. 2018) – This case involved a breach of contract action brought against FINRA based on the failure to train arbitrators.  Barrett wrote for the panel majority in dismissing the claim, finding that the amount in controversy requirement was not satisfied for diversity jurisdiction.  Judge Kenneth Ripple dissented, arguing that, accepting the plaintiffs’ claims at the pleading stage, the amount had been satisfied.

Employment Law

United States EEOC v. Autozone, Inc., 875 F.3d 860 (7th Cir. 2017) – The question in this case was whether a business’ decision to intentionally segregate their employees by race between stores violated Title VII of the Civil Rights Act.  A panel of the Seventh Circuit held that, without evidence that such division adversely affected the employees, there was no Title VII violation.  The Seventh Circuit then denied en banc rehearing, with Barrett voting not to rehear the decision.  In her dissent from denial of rehearing, Judge Diane Wood argued that the decision essentially enshrined “separate but equal” into Title VII.

Kleber v. CareFusion Corp., 914 F.3d 480 (7th Cir. 2019) (en banc) – The key question in this case was whether the Age Discrimination in Employment Act (“ADEA”) allowed job applicants to sue under a disparate impact theory of discrimination.  A seven-judge majority on the court, including Barrett, joined the opinion of Judge Michael Scudder, who held that job applicants, unlike employees, were not permitted to file disparate impact claims under ADEA.  Judge David Hamilton dissented on behalf of four judges.

Equal Protection

St. Joan Antida High Sch. Inc. v. Milwaukee Pub. Sch. Dist., 919 F.3d 1003 (7th Cir. 2019) – This case involved a challenge to the Milwaukee School District’s policy of adding extra restrictions to private schools who wished to participate in the district’s busing program.  Barrett joined Judge Amy St. Eve in finding the differential treatment to be constitutional under rational basis review.  Judge Diane Sykes dissented.

Van Dyke v. Vill. of Alsip, 2020 U.S. LEXIS 27943 (7th Cir. Sept. 2, 2020) – This case involved a challenge to a zoning restriction that prevented the plaintiff from renting out her garden apartment.  The Seventh Circuit, with Barrett joining, rejected the plaintiff’s takings and equal protection claims in an unsigned order.  Judge Ilana Rovner dissented, finding that the plaintiff had stated a claim on her equal protection challenge.

Tort Litigation

Chronis v. United States, 932 F.3d 544 (7th Cir. 2019) – The question in this case was whether the district court erred in dismissing the plaintiff’s tort claim against the federal government for failure to send a demand letter before suing.  Barrett wrote for the panel majority in dismissing the claim, finding that the plaintiff had failed to make a proper demand before suing.  Judge Ilana Rovner dissented, arguing that the court should adopt a more flexible standard to permit plaintiffs to be able to not have cases thrown out because of “technical deficiencies.” 

1983 & Prisoner Suits

J.K.J. v. Polk Cty., 960 F.3d 367 (7th Cir. 2020) (en banc) – This case involved a civil rights suit brought by two women who were repeatedly sexually assaulted by a correctional officer.  A panel of the Seventh Circuit overturned a jury verdict in favor of the plaintiffs, and the Seventh Circuit reversed the panel on a 7-4 vote.  Barrett joined the majority opinion by Judge Michael Scudder upholding the jury verdict in favor of the women.  Judges Frank Easterbrook and Michael Brennan authored separate dissents.

Henry v. Hulett, 2020 U.S. App. LEXIS 25390 (7th Cir. Aug. 11, 2020) (en banc) – This was a class action suit brought by inmates at Lincoln Correctional Center who were subjected to mass strip searches as part of cadet training exercises.  Barrett joined the majority on the en banc court in holding that the Fourth Amendment protected the right of bodily privacy to the inmates, and thus, summary judgment should not have been granted against the plaintiffs.  Judge Frank Easterbrook was the sole dissenter, finding that there was no evidence of bad intent by the prison official.

Hildreth v. Butler, 2020 U.S. App. LEXIS 26377 (7th Cir. Aug. 19, 2020) – In this case, a 2-1 panel of the Seventh Circuit denied the appeal of a prisoner alleging that prison officials failed to refill needed medication, holding that there was insufficient evidence of deliberate indifference.  A judge sought an en banc vote, and the court denied rehearing 7-4, with Barrett voting to deny en banc rehearing.  

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s