Because Barrett has spent just eight months on the 7th Circuit, she has compiled a relatively small body of opinions, most of them fairly uncontroversial. One case that would almost certainly draw attention if she were nominated came shortly after she took the bench: EEOC v. AutoZone, in which the federal government asked the full court of appeals to reconsider a ruling against the EEOC in its lawsuit against AutoZone, an auto parts store. The EEOC had argued that the store violated Title VII of the Civil Rights Act, which bars employees from segregating or classifying employees based on race, when it used race as a determining factor in assigning employees to different stores – for example, sending African-American employees to stores in heavily African-American neighborhoods. A three-judge panel (that did not include Barrett) ruled for AutoZone; Barrett joined four of her colleagues in voting to deny rehearing by the full court of appeals.
Three judges – Chief Judge Diane Wood and Judges Ilana Diamond Rovner and David Hamilton – would have granted rehearing en banc. Those three also had strong words in the dissenting opinion that they filed. They alleged that, under “the panel’s reasoning, this separate-but-equal arrangement is permissible under Title VII as long as the ‘separate’ facilities really are ‘equal’” – a conclusion, they continued, that is “contrary to the position that the Supreme Court has taken in analogous equal protection cases as far back as Brown v. Board of Education.”
Another high-profile case before the 7th Circuit involves the battle over “sanctuary cities” – jurisdictions that limit cooperation with federal immigration authorities. In June, the full court granted the federal government’s petition to reconsider part of a three-judge panel’s ruling that left in place a nationwide injunction against the federal government’s policy of withholding law-enforcement grants from such jurisdictions. The announcement means that the federal government can enforce the policy only against the city of Chicago, the plaintiff in the case. There is no way to know how Barrett voted on the government’s request, as the court’s order indicated only that a “majority of the judges participating in the en banc rehearing of this case” had voted in favor of the stay that the government had sought.
Barrett was also part of a panel that tackled another contentious issue in environmental and property law, as developers and farmers (among others) have contended that the federal government has gone too far: What constitutes the “waters of the United States” for purposes of determining whether the federal Clean Water Act applies to wetlands? In June of this year, Barrett joined a ruling written by Judge Amy St. Eve, also a Trump appointee to the 7th Circuit, that sent the case of an Illinois developer back to the U.S. Army Corps of Engineers for reconsideration. The Corps had found that the wetlands at issue – which were approximately 11 miles away from the nearest navigable river – were “waters of the United States,” but the panel (expressing some frustration) concluded that the determination by the Corps was not backed by “substantial evidence in the record” even though the “dispute has consumed almost as many years as the Warmke wetlands have acres.”
Barrett joined another ruling by St. Eve in the case of Kishunda Jones, who had been designated by her mother, Linda, as the beneficiary of her pension. When Linda, who suffered from a recurring form of cancer, died three days before her pension was supposed to begin, the committee that oversaw Linda’s pension rejected Kishunda’s request to receive the pension. It explained that, when a participant dies before her pension begins, only surviving spouses can receive a benefit from the pension. The panel agreed with the district court that the “facts of this case are undoubtedly unfortunate,” but it nonetheless upheld the district court’s ruling in favor of the pension fund on the ground that its decision was neither arbitrary nor capricious – all that the law requires in such a scenario.
In Schmidt v. Foster, Barrett dissented from the panel’s ruling in favor of a Wisconsin man who admitted that he had shot his wife seven times, killing her in their driveway. Scott Schmidt argued that he had been provoked, which would make his crime second-degree, rather than first-degree, homicide; the trial judge reviewed that claim at a pretrial hearing that prosecutors did not attend, and at which Schmidt’s attorney was not allowed to speak. The judge rejected Schmidt’s claim of provocation, and Schmidt was convicted of first-degree homicide and sentenced to life in prison. When Schmidt sought to overturn his conviction in federal court, the panel agreed that Schmidt had been denied his 6th Amendment right to counsel, and the court of appeals sent the case back to the lower court.
Barrett disagreed with her colleagues, in a separate opinion that began by emphasizing that the standard for federal postconviction relief is “intentionally difficult because federal habeas review of state convictions” interferes with the states’ efforts to enforce their own laws. In this case, she contended, the state court’s decision rejecting Schmidt’s 6th Amendment claim could not have been “contrary to” or “an unreasonable application of” clearly established federal law (the requirement for relief in federal court) because the Supreme Court has never addressed a claim that a defendant has a right to counsel in a pretrial hearing like the one at issue in this case. While acknowledging that “[p]erhaps the right to counsel should extend to a hearing like the one the judge conducted in Schmidt’s case,” she warned that federal law “precludes us from disturbing a state court’s judgment on the ground that a state court decided an open question differently than we would—or, for that matter, differently than we think the [Supreme] Court would.”
In Akin v. Berryhill, Barrett joined a per curiam (that is, unsigned) decision in favor of a woman whose application for Social Security disability benefits had been denied by an administrative law judge (ALJ). The panel agreed with the woman, Rebecca Akin, that the ALJ had incorrectly “played doctor” by interpreting her MRI results on his own, and it instructed the ALJ to take another look at his determination that Akin was not credible. The panel indicated that it was “troubled by the ALJ’s purported use of objective medical evidence to discredit Akin’s complaints of disabling pain,” noting that fibromyalgia (one of Akin’s ailments) “cannot be evaluated or ruled out by using objective tests”; it also added that, among other things, the ALJ should not have discredited Akin’s choice to go with a more conservative course of treatment when she explained that “she was afraid of needles and that she wanted to wait until her children finished school before trying more invasive treatment.”
Connect With Us