President Trump has nominated Amy Coney Barrett to replace the late Supreme Court Justice Ruth Bader Ginsburg.
Viewed as a so-called “originalist” jurist in the vein of the late Justice Antonin Scalia, Barrett looks first to the nation’s founding documents and statements from the Founding Fathers. She is sure to win conservative favor. Still, Barrett may well shift the court’s balance in a more libertarian direction on security issues involving individual rights. While we have a relatively limited stock of security opinions by which to judge her, we do have an indication of a legal mind that defers to the individual over the state in this area.
In the 2019 case of Kanter v. Barr, for example, Barrett dissented from the appeals court majority, arguing that a conviction for mail fraud was not sufficiently indicative, by its own essence, of a felon’s predilection for violence, and thus not a lawful excuse for the state to deny said felon of his Second Amendment rights. Barrett’s dissenting opinion in the case is situated heavily in historic precedence and repeated reference to the formative legal documents and opinions of the nation’s founding.
But what will this mean for Barrett’s future jurisprudence on those matters yet to come before the Supreme Court?
If confirmed, Barrett will preside over at least one Fourth Amendment case in the 2020-2021 session: Torres v. Madrid. As Oyez.org notes, the court will rule on whether physical force used to detain a suspect must be successful to constitute a Fourth Amendment “seizure” of a person by state authority. Thus, also where the actuation of Fourth Amendment protections occurs.
Barrett’s record indicates that she is likely to adopt a more libertarian philosophy than justices Samuel Alito and Clarence Thomas on matters of security. Justice Brett Kavanaugh’s philosophy is harder to discern in light of the limited Supreme Court caseload he has yet judged. But if Barrett does join the more liberal side of the court on these issues, she may find support from Chief Justice John Roberts. And that would tip the balance 5-4 against the nominal conservative bloc.
Take the example of the 2017 case of Carpenter v. United States. Here, Roberts sided with the liberal wing of the court to issue in favor of the defendant. That decision involved ruling against the FBI in its warrantless seizure of cellphone location records. Considering our society’s increasing reliance on technology, cases like Carpenter are likely to become far more the rule than the exception. Whether involving the probable cause requirements necessary to intercept communications, or the Fifth Amendment related self-incrimination questions involved with state authorities demanding access to encrypted devices, Barrett will have to match her originalist tendencies to addressing the complexities of the modern world.
First, of course, Barrett must win confirmation.
