SCOTUS Could Use More Skeptics Like Amy Coney Barrett
Democrats worry that Supreme Court nominee Amy Coney Barrett, an originalist and textualist who clerked for Justice Antonin Scalia in the late 1990s, will emulate him if she is confirmed by the Senate. We could do a lot worse.
Although progressives often portrayed Scalia as an authoritarian ogre, he was a more faithful defender of First, Fourth, and Sixth amendment rights than some of his purportedly “liberal” colleagues on the Court. Barrett’s track record during three years on the U.S. Court of Appeals for the 7th Circuit suggests she also would frequently prove to be a friend of civil liberties.
In a 2018 opinion, 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, noting that the report of gun possession by itself did not indicate criminal conduct.
In another Fourth Amendment case, decided in 2019, Barrett concluded that federal drug agents violated the Constitution when they searched a suspected heroin dealer’s apartment based on the consent of a woman who answered the door but did not live there. Because the search was invalid, she said, the evidence it discovered should have been suppressed.
In a 2018 opinion for a unanimous 7th circuit panel, by contrast, Barrett said it did not matter whether the warrant authorizing tracking software that identified users of a child pornography website was valid. The evidence could be used anyway, she said, based on “the good-faith exception to the exclusionary rule.”
Another Barrett opinion that may give pause to civil libertarians is her 2019 dissent
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