Welcome to the Trump Bench, a series where Slate analyzes a Trump judge’s recent work. At an unusually rapid clip, Trump has so far successfully appointed two Supreme Court justices, 50 appeals court judges, and 133 district court judges during his presidency. Trump judges tend to be different than appointees by past presidents of both parties. Many are quite young, some are openly partisan, others are patently unqualified. The judges will likely be Trump’s most enduring impact on our nation, which is why we are choosing to spotlight their work.
The third installment is about Amy Coney Barrett, Trump’s rumored pick if he gets the chance to appoint another Supreme Court justice.
The Judge: Amy Coney Barrett of the 7th U.S. Circuit Court of Appeals. Barrett was confirmed to a lifetime appointment on the 7th Circuit on Oct. 31, 2017; today, she is one of four Donald Trump appointees on that court. She previously clerked for Justice Antonin Scalia and taught at Notre Dame Law School, her alma mater. Like most of Donald Trump’s appeals court nominees, Barrett is a member of the Federalist Society. Trump has indicated that he plans to nominate Barrett to the next vacancy on the Supreme Court.
The Decision: Barrett’s troubling dissent in the 2019 case McCottrell v. White signaled her eagerness to weaken constitutional protections for inmates injured by prison guards. The case involved two men, John McCottrell and Dustin Clay, who were eating lunch in a prison dining hall when a scuffle broke out between two inmates. Nearby guards quickly separated and subdued the individuals. While they cuffed both men, two other guards stationed in a tower fired buckshot that seriously harmed McCottrell and Clay, who were not involved in the fight. They sued, alleging an infringement of their Eighth Amendment right to be free from “cruel and unusual punishment.”
The 7th Circuit ruled, over Barrett’s dissent, that the case could proceed to trial. Judge Ilana Rovner, a George H.W. Bush appointee, wrote the majority opinion highlighting the guards’ “shifting” accounts of the incident: They claimed to have fired during the dispute, but video evidence proved the fight was over when they intervened. It was also genuinely unclear whether the guards intended to shoot the inmates. When firing a warning shot, guards are supposed to aim at a “shot box” to avoid injury. But these guards may have aimed directly into the crowd. Surveying this evidence, Rovner held that a reasonable jury could hold that the guards acted “maliciously and sadistically” in violation of the Eighth Amendment and allowed the case to go to trial.
Barrett’s dissent seemed to begin with a conclusion—the guards should not have to face trial—and work backward from there. She argued that the inmates had produced “no evidence that the officers shot into the crowd,” ignoring the evidence of the buckshot that tore through their bodies. And she blithely dismissed evidence that “the officers lied in their affidavits about the direction of the shots.” Moreover, Barrett refused to recognize that the guards’ decision to fire away from the “shot box” could raise “an inference of bad faith.”
The Precedent: Her credulous defense of the guards led the majority to warn that, under her theory, “a guard could blindly unload a shotgun above a crowd of bystanders with impunity because making contact is not a certainty.” Barrett’s position would raise the already-high bar that prisoners must clear to vindicate their constitutional rights.
The Record: Barrett’s zeal to protect these guards from consequences reflects a broader deference toward government officials seeking to convict, punish, or deport vulnerable people. The 7th Circuit was already dominated by Republican appointees when she joined; just two of its eleven active judges were appointed by Democrats. Still, Barrett has consistently found her colleagues to be insufficiently conservative.
In Sims v. Hyatte, for instance, Barrett dissented from an opinion by Judge William Joseph Bauer, a Gerald Ford appointee. She voted to uphold the conviction of Mack Sims, who was found guilty of attempted murder on the basis of eyewitness testimony secretly procured through hypnosis. Prosecutors withheld evidence that this witness—the victim, and only person who could identify the shooter—was hypnotized before trial to “enhance his recollection.” There is a very good chance that this hypnosis led to Sims’ wrongful conviction, a conviction that Barrett would uphold. In Schmidt v. Foster, Barrett wrote (again in dissent) that a criminal defendant did not have a right to counsel when a judge grilled him on the details of his crime—even though the resulting testimony led to his conviction for first-degree homicide.
Barrett consistently rules against immigrants seeking relief from deportation. In Alvarenga-Flores v. Sessions, she wrote a 2–1 opinion permitting the deportation of an immigrant to El Salvador, where he may be tortured and killed by gangs, because of “inconsistencies” in his testimony. (The dissent rightly deemed these inconsistencies, which included the precise placement of passengers in a car, “trivial.”) In Yafai v. Pompeo, Barrett wrote another 2–1 opinion approving the denial of a visa to the Yemeni wife of a U.S. citizen—even though, as the dissent put it, the consular officer may have merely relied on a “stereotypical assumption” that Yeminis commit crimes.
Judge Kenneth Ripple, a Reagan appointee, dissented from Barrett’s decision. When the full court refused to rehear the case, three other dissenters wrote that Barrett’s opinion constituted “a dangerous abdication of judicial responsibility” that would let immigration officials deny visas on the basis of “impermissible bias.” And in Ramos v. Barr, Barrett cast the deciding vote permitting the deportation of a lawful permanent resident who resided in the U.S. for 30 years, even though—as the dissent pointed out—the law banishing him may violate equal protection.
If Barrett has little sympathy for most powerless people, there is one class she favors: individuals convicted of a felony who seek to possess firearms. She wrote a dissent in Kanter v. Barr arguing that neither states nor the federal government may permanently disarm nonviolent felons. (The majority, which rejected her view, was made up of Judges Joel Flaum and Kenneth Ripple, both Reagan appointees.) Barrett’s lengthy dissent was larded with historical references and jabs at other judges for treating the Second Amendment as a “second-class right.” She proposed a strict new framework for analyzing the right to bear arms that would make it substantially harder for the government to prevent certain people from possessing firearms. It was an obvious audition for the Supreme Court—every applicant for the next vacancy has written similar encomia to a turbocharged Second Amendment.
On abortion, Barrett is reliably conservative. She joined a dissent suggesting that states may prohibit women from terminating a pregnancy because of the fetus’ race, sex, or disability. That opinion, written by the conservative Judge Frank Easterbrook, posed a challenge to the constitutional right of abortion access, suggesting that states may enact total bans on pre-viable abortions in contradiction of Supreme Court precedent. (Easterbrook echoed Justice Clarence Thomas’ false claim that women who terminate a pregnancy due to fetal abnormalities are using “abortion to promote eugenic goals.”) Barrett also voted to vacate a decision that would’ve forced minors to notify their parents before undergoing an abortion under all circumstances, a direct violation of Supreme Court precedent.
The vote: Dianne Feinstein, ranking member of the Senate Judiciary Committee, all but ensured Barrett’s confirmation when she quipped that “the dogma lives loudly within you” during her confirmation hearing. This strange and inappropriate comment instantly became a rallying cry for the religious right. The Senate confirmed her by a vote of 55 to 43, with three Democrats— Indiana’s Joe Donnelly, Virginia’s Tim Kaine, and West Virginia’s Joe Manchin—voting in her favor. (Donnelly later lost his seat.) Every Republican voted for Barrett.
Although Barrett is often a dissenting voice today, she could soon have an opportunity to turn her views into the law of the land. According to Axios, Trump has said that he is “saving” Barrett to replace Justice Ruth Bader Ginsburg should she retire under his presidency. On Jan. 10, Sarah Isgur wrote in the Dispatch that Barrett is still Trump’s favorite, noting that she has “name ID and conservative ‘rock star status.’ ” If Ginsburg steps down before Trump leaves office, there is an excellent chance that Barrett—who has spent her career opposing the very principles of justice and equality for which Ginsburg stands—will be our next Supreme Court justice.