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Judge Barrett’s Record: Siding With Businesses Over Workers

With the opening statements and the grandstanding now over, today the nomination hearings for Judge Amy Coney Barrett to replace the late Ruth Bader Ginsburg on the Supreme Court begin in earnest, as members of the Senate Judiciary Committee launch into their questioning. Supreme Court confirmation hearings have become a high-level version of dodgeball, where nominees work tirelessly to evince no opinion on any legal matter whatsoever, using the excuse that the topic might come up before the Court in the future, and the nominee wouldn’t want to prejudge any decision.

In this case, both Barrett’s record and the entire process can be prejudged. Though she only has three years on the federal bench, Barrett has nearly two decades’ worth of law review writing from her time as a professor at Notre Dame. Everyone knows she has been installed to deliver victories on long-sought, ideologically conservative priorities, from eliminating the right to choose an abortion to the overturning of a century of labor law jurisprudence. And everyone knows conservative senators will vote in lockstep to get Barrett on the Court to commence this work. The only drama lies in whether enough of them are actually available to complete the task before the general election.

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Still, I subscribe to the school of thought that what a judicial nominee believes actually matters when confirming them to the highest court in the land. And even Barrett’s short stint as a judge has yielded a number of revealing opinions that all point to a general bias. As the Lawyers’ Committee for Civil Rights Under Law puts it in a report released today on the Barrett record, “she is predisposed to side with law enforcement at the expense of defendants’ constitutional rights, and with employers and business interests in disputes with employees and consumers.”

These views have run counter to the civil rights of vulnerable and oppressed people time and again, in ways that suggest that Barrett would be unyieldingly extreme on the Court when it comes to protections for workers, police suspects, and people of color. The implications of some of Barrett’s rulings are truly grave, and whether or not they slow down or derail her confirmation, they should get a full airing in the committee.

Consider EEOC v. AutoZone. Judge Barrett did not write this opinion, but she joined a slim majority that denied a rehearing of the case at the Seventh Circuit Court of Appeals. AutoZone had a policy in Chicago of segregating employees by race, creating a “Hispanic store” and a “Black store” on the South Side. While employees’ pay, benefits, and job tasks didn’t differ, it did keep them from working at the location of their choice. In the words of the dissent to the majority’s ruling, the court effectively said that “a separate-but-equal arrangement is permissible under Title VII as long as the separate facilities really are equal.”

The implications of the AutoZone case are terrifying. “It’s a case that makes clear that she will put the interests of employers over that of workers,” says Kristen Clarke, president and executive director of the Lawyers’ Committee. “She will give employers the benefit of the doubt in terms of justifications they put forth for discriminatory policies and practices.” Expanding that out, Barrett could be willing to accept discriminatory actions in a host of other settings, even in the face of rulings like Brown v. Board of Education.

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In Smith v. Illinois Department of Transportation, Barrett wrote the decision denying a Black traffic patrol driver’s claim that he was fired in retaliation for his complaints about expressions of racial bias by co-workers. The driver, Mr. Smith, said co-workers used the N-word to refer to him, creating a hostile work environment. But Barrett ruled that, since supervisors never made such comments, a hostile work environment could not be created. “This decision demonstrates Judge Barrett’s lack of understanding of what a racial slur means to an African-American worker,” the Lawyers’ Committee writes. “For her to conclude that this did not create a hostile work environment from his perspective is simply incomprehensible.”

In another decision, Kleber v. CareFusion, Barrett joined a decision that dismissed an age discrimination case. CareFusion had posted a job application that gave a maximum years of experience, which an applicant said discriminated against older workers (who could presumably command more pay). The ruling Barrett joined said that discrimination under the relevant statute only applied to current employees, not job applicants. The dissenters said this rewrote the statute and opened the door to age discrimination in hiring.

Judge Barrett sided with the views of businesses in all of these and several other cases, even if it meant depriving employees of their civil rights. Right-wing billionaire Charles Koch has directed his political network to go all out for Barrett’s nomination, weeks before the election, for good reason: She could finally help him realize his goal of unchecked corporate power. Ending the deference that regulatory agencies get when interpreting a statute would top the list of actions a Court with a Justice Barrett would take.

Barrett could be willing to accept discriminatory actions in a host of other settings, even in the face of rulings like Brown v. Board of Education.

We do know, however, that Barrett has no problem giving deference to some agencies of the federal government: the ones engaged in hard-right immigration restrictionism. In Cook County v. Wolf, Barrett dissented from a decision that invalidated the Trump administration’s “public charge” rule, which would ban immigrants from the United States if the government believed they would avail themselves of federal benefits. Barrett said officials had broad discretion to make that projection. In Yafai v. Pompeo, Barrett upheld the denial of a Yemeni woman’s visa based on the consular official claiming, without evidence, that she intended to smuggle two children into the country. Barrett said there was a “consular non-reviewability doctrine” that made it impossible for courts to second-guess the opinion, giving consular officials free rein to make whatever claims they wish.

Barrett has also heard several criminal justice cases. In Estate of Biegert v. Molitor, she wrote a ruling stating that officers did not use excessive force when they killed a suicidal man who attacked one policeman with a knife. She noted that the officers may have escalated the situation but said the use of force was reasonable anyway. Barrett dissented in Schmidt v. Foster, a case in which her colleagues had overruled a judge who had convened an unusual pretrial hearing to deny a motion for a lesser sentence to a defendant whose attorneys had not been allowed to speak. And in Kanter v. Barr, which upheld laws that take away a convicted felon’s gun rights, Barrett penned a lengthy dissent stating that those laws were overly broad because they remove gun rights from nonviolent felons. In this dissent, she called the Second Amendment “an individual right, intimately connected with the natural right of self-defense and not limited to civic participation,” implicitly contrasting the superior gun rights to such lesser rights as voting rights.

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Barrett’s preferred doctrine of originalism also gave the Lawyers’ Committee a signal that she would not respect the rights of women, LGBT individuals, or other minorities not conferred any privileges at the time of the Constitution’s writing. Her interest in overturning precedent puts at risk a host of settled protections for vulnerable groups.

Democrats will likely approach the questioning of Barrett by steering clear of claims about her religion. They’ve already signaled a desire to tar her with the administration’s bid to overturn the Affordable Care Act, which will come before the Court on November 10, and presents the Democrats with politically fertile territory. But we should also hope that they will offer a lesson in the full spectrum of harms that could come from having Barrett on the bench, which go beyond health care and reproductive rights. It’s not just about a balance of power on the Court, but an imbalance in favor of big business and police agencies, at the expense of the rights of the vulnerable.

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