Judge Amy Coney Barrett: 7th Circ. Decisions To Know

Law360 (September 26, 2020, 6:02 PM EDT) -- Judge Amy Coney Barrett is a devout Catholic and a law professor who has developed a conservative record in her relatively brief time on the Seventh Circuit.

In tapping her Saturday to succeed Justice Ruth Bader Ginsburg on the U.S. Supreme Court, President Donald Trump described Judge Barrett as "one of our nation's most brilliant and gifted legal minds." 

Judge Barrett, 48, had been eyed as a likely Trump nominee for the high court for almost as long as she has been on the Seventh Circuit. She became a contender for the seat vacated by the retirement of Justice Anthony Kennedy less than a year after her 2017 confirmation to the circuit court.

Her record then was thin. She has since penned dozens of opinions and dissents and joined many more, some touching on hot-button issues.

"Judge Amy Coney Barrett has compiled a record in her decision-making and her written opinions that show she is extremely ideologically conservative, especially on issues such as reproductive freedom and religious freedom," said Carl Tobias, a professor at University of Richmond School of Law.

Much of the debate about Judge Barrett seems certain to center on her views on abortion and the likelihood she could play a role in weakening or overturning the high court's landmark Roe v. Wade  decision that established a woman's right to terminate a pregnancy. While Judge Barrett has not written an opinion directly on abortion, she has in two cases appeared to back the state of Indiana's right to impose restrictions on the practice.

Judge Barrett, a former law clerk to the late Supreme Court Justice Antonin Scalia, has produced a body of academic writing that suggests a leaning toward originalism and more conservative principles. She has testified that she is a "faithful Catholic."

This has made some attacks on Judge Barrett fraught for Democrats, who could be perceived as attacking Catholicism or faith more broadly. Sen. Dianne Feinstein, D-Calif., found herself in that uncomfortable position when she grilled then-nominee Barrett on her writings about the balance of the Catholic faith and the duties of a federal judge during the Seventh Circuit confirmation process. Feinstein faced backlash for commenting at one point that "dogma lives loudly within you, and that is a concern to me."

Judge Barrett also has many supporters.

When she was nominated to the Seventh Circuit, she received the backing of every member of the Notre Dame law faculty, a politically diverse group, said Richard Garnett, a director of the Notre Dame Program on Church, State & Society. She also garnered support from her former co-clerks at the Supreme Court on the right, left and center, as well as high-profile progressives like Neal Katyal of Hogan Lovells. She was confirmed to the Seventh Circuit on a 55-43 vote, winning over some Senate Democrats.

"Judge Barrett's tenure and work on the Court of Appeals has confirmed my confidence and high opinion," Garnett said. "Her opinions are clear, respectful, and well-reasoned. Her currency is careful analysis, not rhetoric."

The confirmation process is sure to become intense.

A 6-3 conservative majority on the high court could make rulings like Roe v. Wade and Obergefell v. Hodges , which protected same-sex marriage, vulnerable to change. Democratic lawmakers have also expressed fury that Republicans have vowed to confirm Trump's nominee to replace Justice Ginsburg during a presidential election year after refusing to grant a hearing to President Barack Obama's nominee to fill Justice Scalia's seat in 2016.

Here are some of Judge Barrett's most telling Seventh Circuit votes, opinions and dissents.

2020

Cook County, Illinois et al. v. Chad F. Wolf et al., case number 19-3169

Judge Barrett dissented from a Seventh Circuit panel that upheld a federal judge's order temporarily blocking the Trump administration from enforcing its public charge immigration rule in Illinois, although the rule remained in effect nationwide.

"The plaintiffs have worked hard to show that the statutory term 'public charge' is a very narrow one, excluding only those green card applicants likely to be primarily and permanently dependent on public assistance," Judge Barrett wrote. "That argument is belied by the term's historical meaning — but even more importantly, it is belied by the text of the current statute, which was amended in 1996 to increase the bite of the public charge determination."

The majority, however, said the plaintiffs would probably win in part because the public charge rule penalizes green card applicants who may use public assistance for food, housing and health care in the future, and Congress explicitly intended for immigrants to have access to such benefits.

Yeison Meza Morales v. William P. Barr, case number 19-1999

Judge Barrett wrote a decision for a Seventh Circuit panel that restored a procedural tool allowing immigration judges to table cases while permitting immigrants to pursue other relief, shredding a 2018 decision by former Attorney General Jeff Sessions.

In the Matter of Castro-Tum, Sessions barred judges and the Board of Immigration Appeals from using "administrative closures" to allow immigrants time to have their petitions reviewed.

Judge Barrett wrote that while Sessions' decision "tries to draw reinforcement from the general policy of expeditiousness underlying immigration law, that policy doesn't justify departure from the plain text of the rule."

"Immigration laws and regulations, like all laws and regulations, are the product of compromise over competing policy goals. Expeditiousness may be one such goal, but it is not the only goal," Judge Barrett wrote.

Carmen Wallace et al. v. Grubhub Holdings Inc. et al., case number 19-1564, and Thomas Souran et al. v. Grubhub Holdings Inc. et al., case number 19-2156

Judge Barrett, writing on behalf of a unanimous panel, said Grubhub delivery drivers in two proposed wage-and-hour class actions must arbitrate their claims.

She and the rest of the Seventh Circuit panel rejected the drivers' contention that they were exempt from the Federal Arbitration Act as transportation workers engaged in foreign or interstate commerce. The drivers argued that the components of the food they deliver had previously traveled across state lines to local restaurants.

"A package of potato chips, for instance, may travel across several states before landing in a meal prepared by a local restaurant and delivered by a Grubhub driver; likewise, a piece of dessert chocolate may have traveled all the way from Switzerland," Judge Barrett wrote. "The plaintiffs insist that delivering such goods brings their contracts with Grubhub within § 1 of the FAA. As they see it, the residual exemption is not so much about what the worker does as about where the goods have been."

Judge Barrett wrote that the drivers would need to show they had actually moved the goods across borders. Otherwise, the exemption would cover countless other delivery workers: "for example, dry cleaners who deliver pressed shirts manufactured in Taiwan and ice cream truck drivers selling treats made with milk from an out-of-state dairy."

2019

Rickey I. Kanter v. William P. Barr, case number 18-1478

Judge Barrett dissented from a Seventh Circuit panel that upheld a federal judge's ruling upholding the constitutionality of Wisconsin laws that forbid felons from possessing firearms. Judge Barrett contended that the laws should be ruled unconstitutional because — as in the case before the circuit brought by a convicted mail fraudster — the statutes don't discern between violent and nonviolent felons.

She signaled some of her originalist tendencies in the process.

"History is consistent with common sense: It demonstrates that legislatures have the power to prohibit dangerous people from possessing guns," she wrote. "But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun."

Planned Parenthood of Indiana and Kentucky Inc. v. Kristina Box et al., case number 17-2428

After a Seventh Circuit panel upheld an injunction on an Indiana law entitling parents to be notified of their unemancipated minor's intent to undergo an abortion, Judge Barrett was in the minority that voted in favor of rehearing the matter en banc.

She joined Seventh Circuit Judge Michael Stephen Kanne's dissent.

"This case implicates an important and recurring issue of federalism: Under what circumstances, and with what evidence, may a state be prevented from enforcing its law before it goes into effect?" Judge Kanne wrote. "Given the existing unsettled status of pre-enforcement challenges in the abortion context, I believe this issue should be decided by our full court. Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure."

Planned Parenthood of Indiana and Kentucky Inc. et al. v. Commissioner of the Indiana State Department of Health et al., case number 17-3163

After a Seventh Circuit panel ruled unconstitutional Indiana's attempt to ban abortions based on a fetus' sex, race or disability and require aborted fetuses to be buried or cremated, Judge Barrett was in the minority that voted in favor of rehearing the matter en banc.

Judge Barrett joined Seventh Circuit Judge Frank Easterbrook's dissent.

"Think of animal-welfare statutes. Dogs may not be beaten for fun. Bullfights are forbidden. Horses may not be slaughtered in Illinois for the dinner table under a statute this circuit sustained largely on animal-welfare grounds," Judge Easterbrook wrote. "Many people feel disgust, humiliation, or shame when animals or their remains are poorly treated. We wrote in [Cavel International Inc. v. Madigan ] that a ban on slaughtering horses for human consumption is rationally related to the goal of reducing dismay at poor treatment of these creatures. Isn't that equally true of a statute about fetal remains?"

Judge Easterbrook also cited a similar fetus-disposal law enacted in 1987 in Minnesota, which requires burial, interment or cremation.

Doe v. Purdue University, case number 17-3565

Judge Barrett wrote an opinion for a Seventh Circuit panel reviving a complaint alleging Purdue University violated the civil rights of a male ROTC student by unfairly finding him guilty of sexually assaulting his girlfriend, suspending him for a year and notifying the U.S. Navy.

A U.S. magistrate judge in Indiana had dismissed the John Doe's complaint for failure to state a claim, saying the plaintiff hadn't shown that the school had violated his Fourteenth Amendment right to due process in depriving him of property or liberty, nor had the plaintiff appropriately pleaded Title IX sex bias. Judge Barrett, however, wrote in a 30-page opinion that the pleadings properly alleged both theories.

She said the student properly pleaded that the university violated his due-process rights by depriving him of liberty — in this case, his ability to pursue a career in the U.S. Navy — by telling the military branch that the school had found him guilty of sexual assault.

The student also appropriately alleged that the university also violated Title IX by taking his accuser's word alone over his, while rejecting all other evidence he offered, the judge said. Judge Barrett suggested that the plaintiff's claims were plausible, as the university was under pressure at the time to report a higher number of sexual assault punishments to the U.S. Department of Education. Furthermore, she pointed to a social media post by Purdue's Center for Advocacy, Response and Education, a campus office supporting sexual assault victims.

"The plausibility of that inference is strengthened by a post that CARE put up on its Facebook page during the same month that John was disciplined: an article from The Washington Post titled 'Alcohol isn't the cause of campus sexual assault. Men are,'" she wrote. "Construing reasonable inferences in John's favor, this statement, which CARE advertised to the campus community, could be understood to blame men as a class for the problem of campus sexual assault rather than the individuals who commit sexual assault."

Judge Barrett noted that while Doe's complaint clears the bar for pleading his allegations, "the factfinder might not buy the inferences that he's selling."

2018

Fiorentini v. Paul Revere Life Insurance Co., case number 17-3137

Judge Barrett wrote for a panel affirming that the owner of a small technology company who was unable to work during cancer treatment no longer qualified for total disability coverage under an occupational disability insurance policy with Paul Revere Life Insurance Co. several years after treatment. His claim that he couldn't perform one of his four important job duties — sales — did not fall within the terms of his insurance policy, and although the claim was more in line with the policy's "residual disability" provision, he chose not to apply for those benefits, according to the opinion.

Schmidt v. Foster, case number 17-1727

The majority in this case found that a lower court improperly denied assistance of counsel during a pretrial hearing on behalf of a man who admitted to murdering his wife but tried to rely on "adequate provocation" to reduce the crime from first- to second-degree homicide.

Judge Barrett dissented, arguing the hearing was not a trial-like confrontation that entitled the petitioner to counsel.

"I disagree that clearly established Supreme Court precedent dictates the resolution of Schmidt's Sixth Amendment claim," Judge Barrett wrote. "The majority says that this ex parte and in camera proceeding was a 'critical stage,' but the court's 'critical stage' precedent deals exclusively with adversarial confrontations between the defendant and an agent of the state."

--Additional reporting by Mike LaSusa and Dave Simpson. Editing by Kelly Duncan and Jill Coffey.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Planned Parenthood of Indiana v. Kristina Box, et al


Case Number

17-2428

Court

Appellate - 7th Circuit

Nature of Suit

3440 Other Civil Rights

Date Filed

July 14, 2017


Case Title

Henry Fiorentini v. Paul Revere Life Insurance Com, et al


Case Number

17-3137

Court

Appellate - 7th Circuit

Nature of Suit

4110 Insurance

Date Filed

October 17, 2017


Case Title

Planned Parenthood of Indiana, et al v. Commissioner of the Indiana St, et al


Case Number

17-3163

Court

Appellate - 7th Circuit

Nature of Suit

3440 Other Civil Rights

Date Filed

October 19, 2017


Case Title

John Doe v. Purdue University, et al


Case Number

17-3565

Court

Appellate - 7th Circuit

Nature of Suit

3440 Other Civil Rights

Date Filed

December 18, 2017


Case Title

Rickey I. Kanter v. William P. Barr, et al


Case Number

18-1478

Court

Appellate - 7th Circuit

Nature of Suit

2440 Other Civil Rights

Date Filed

March 01, 2018


Case Title

Carmen Wallace, et al v. Grubhub Holdings, Inc., et al


Case Number

19-1564

Court

Appellate - 7th Circuit

Nature of Suit

3710 Fair Labor Standards Act

Date Filed

March 28, 2019


Case Title

Thomas Souran, et al v. Grubhub Holdings, Inc., et al


Case Number

19-2156

Court

Appellate - 7th Circuit

Nature of Suit

3710 Fair Labor Standards Act

Date Filed

June 17, 2019


Case Title

Cook County, Illinois, et al v. Chad F. Wolf, et al


Case Number

19-3169

Court

Appellate - 7th Circuit

Nature of Suit

2899 Other Statutes

Date Filed

October 31, 2019

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