Judge Amy Coney Barrett. Credit: Rachel Malehorn, Wikimedia Commons
By Robert Wenzel*
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.
*About the author: Robert Wenzel is the editor and publisher of the Economic Policy Journal.
Source: This article was published by the MISES Institute
The Mises Institute, founded in 1982, teaches the scholarship of Austrian economics, freedom, and peace. The liberal intellectual tradition of Ludwig von Mises (1881-1973) and Murray N. Rothbard (1926-1995) guides us. Accordingly, the Mises Institute seeks a profound and radical shift in the intellectual climate: away from statism and toward a private property order. The Mises Institute encourages critical historical research, and stands against political correctness.