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October 01, 2023 Feature

Amy Coney Barrett: A Mellower Scalia

Daniel L. Kaplan

One might imagine that the Supreme Court’s sole Scalia clerk—a long-time academic whose speaking and writing frequently focused on Scalia-associated themes like originalism and textualism, and who stated at the announcement of her nomination (referring to Scalia), “[h]is judicial philosophy is mine, too”—would take on a Scalia-like profile on the Supreme Court.

One might be right. So far, Justice Amy Coney Barrett’s voting pattern in the Court’s criminal cases has been notably Scalia-esque. And while the justice is still to some degree finding her voice, there is no reason to suspect that her votes and opinions are going to sharply diverge from Scalia’s anytime soon.

Show Me the Text

“The text,” Scalia famously declared, “is the law.” It follows that a judge must decide a law’s meaning based on the words of which it is composed—not on the judge’s understanding of the purposes behind those words, not on material gleaned from the legislative history, and certainly not on the litigation histories of related cases. As a general matter, the further a legal argument or doctrine strayed from a clear textual foundation, the more likely it was to attract Justice Scalia’s ire. And Justice Barrett’s too, it appears.

Denezpi v. United States, 142 S. Ct. 1838 (2022), presented the question of whether the Double Jeopardy Clause allows an individual to be prosecuted in federal court after having been prosecuted in a Bureau of Indian Affairs–run “CFR court,” for violations of a tribal code arising from the same conduct.

Justice Barrett’s opinion for the Court answered “yes,” focusing narrowly on the Clause’s use of the phrase “same offence.” Even if both prosecutions are conducted by the federal government, in tribunals organized and managed by the federal government, Justice Barrett found that the “dual sovereignty” doctrine applies. Pursuant to that doctrine, the Clause does not bar successive prosecutions for offenses defined by the laws of two distinct sovereigns—here, tribal and federal. In that circumstance, the two prosecutions are not for the “same offence” and thus do not fall within the text of the Clause. Justice Barrett pointedly dismissed the petitioner’s argument that permitting successive prosecutions would not “further the purposes underlying the dual-sovereignty doctrine,” including advancing sovereigns’ independent interests. “Purposes aside,” she said, “the doctrine follows from the Clause’s text, which controls.”

In a dissent joined in part by Justices Sotomayor and Kagan, Justice Gorsuch objected that Justice Barrett had tightened her textual focus too narrowly, overlooking important facts. The history of the CFR courts showed that they not only were creatures of the federal government but were created for such patronizing purposes as eradicating tribal members’ “heathenish” practices. The offense to which the petitioner pleaded guilty in the CFR court, although it was derived from a tribal code, was prosecutable because it had been “approved” by federal officials and assimilated into federal law. For Justice Gorsuch, Justice Barrett’s view of the question “exalted form over substance.”

In United States v. Tsarnaev, 142 S. Ct. 1024 (2022), the Court reviewed the First Circuit’s reversal of the conviction of Boston Marathon bomber Dzhokhar Tsarnaev. Tsarnaev did not contest his guilt at trial, so the real fight was over the post-conviction proceeding at which the jury decided that he should receive the death sentence. One of the First Circuit’s reasons for vacating Tsarnaev’s death sentence was the district judge’s refusal to question prospective jurors about the type and degree of their media exposure to information about the case, as required by a rule the First Circuit had created using its “supervisory authority” over district courts within its jurisdiction.

Justice Barrett joined Justice Thomas’s opinion for the Court, which held that a circuit court’s supervisory authority to impose procedural rules upon district courts does not empower it to create prophylactic rules that circumvent or supplement legal standards set forth in Supreme Court opinions. She also wrote a concurrence, joined by Justice Gorsuch, in which she expressed her “skepticism” that the circuit courts enjoy supervisory authority to impose procedural rules on district courts at all. She acknowledged that many of the Court’s opinions suggested that such authority existed, but she remained dubious, objecting that there appeared to be no constitutional or statutory “hook” upon which such authority could hang.

Concepcion v. United States, 142 S. Ct. 2389 (2022), involved the disparity between the sentences called for by statute and the applicable sentencing guidelines for crimes involving the crack and powder forms of cocaine. In 2010 Congress passed the Fair Sentencing Act, which narrowed this disparity, but the Act did not apply retroactively. In 2018 Congress passed the First Step Act, which authorized district courts to reduce previously imposed crack sentences in keeping with the Fair Sentencing Act’s modifications. The question presented was whether, in conducting such a resentencing, a district court could consider intervening changes of law or fact. Justices Thomas and Gorsuch, along with Justices Breyer and Kagan, joined Justice Sotomayor’s opinion for the Court answering this question in the affirmative. The majority relied on the long-established doctrine favoring a sentencing judge’s broad discretion to consider all relevant information at sentencing. Because no statute curtailed this principle in the context of First Step Act resentencings, the majority held that it authorized the First Step Act resentencing judge to consider intervening events.

Justice Barrett joined Justice Kavanaugh’s dissenting opinion, which argued for a more exclusive focus on the First Step Act’s text. Because that text authorized district courts to reduce sentences based “only” on changes to crack-cocaine sentencing ranges, the dissenters argued, courts had no authority to make reductions on other grounds.

Wooden v. United States, 142 S. Ct. 1063 (2022), addressed the meaning of the Armed Career Criminal Act’s language imposing a 15-year sentencing floor for certain offenses committed by defendants who had at least three prior convictions for specified felonies “committed on occasions different from one another.” The case involved a defendant who had been deemed an armed career criminal on the basis of an incident in which he unlawfully entered a storage facility and sequentially broke into 10 different storage units.

Justice Barrett joined Justice Kagan’s majority opinion holding that this conduct did not amount to multiple felonies committed on separate “occasions.” This in itself was a fairly Scalia-esque vote, as Justice Scalia tended to be wary of overly broad constructions of federal criminal laws—as well as vague criminal laws tending to invite such constructions. But Justice Barrett pushed the Scalia button one more time, writing a separate concurrence, joined by Justice Thomas, declining to join the portion of the majority opinion that reached beyond the statute’s language to draw inferences from the litigation history of an earlier case regarding the proper interpretation of the Act. Along the way she described the “problems with legislative history” as “well rehearsed,” citing a Scalia dissent, and proclaimed it unnecessary to “belabor” why the majority’s consideration of not only legislative but also litigation history was flawed, citing a Scalia concurrence and a treatise on interpretation authored by Scalia and Bryan Garner.

Van Buren v. United States, 141 S. Ct. 1648 (2021), provided another opportunity for the Court to address the government’s attempt to place a broad construction on a federal criminal statute. The Computer Fraud and Abuse Act criminalizes the act of intentionally accessing a computer “without authorization” or “exceed[ing] authorized access”—the latter defined as accessing a computer with authorization but then using it to obtain or alter information the user is not entitled “so to obtain or alter.” The government pressed for a capacious interpretation of “so to obtain or alter” that would cover individuals who had “improper motives” for obtaining information, even though their access to it was authorized.

Justice Barrett, writing for the majority, wasn’t having it. In a text-focused analysis that included three citations to Scalia and Garner’s treatise, she dismissed the government’s interpretation as a “sleight of hand” that contravened the most natural and grammatical reading of the word “so.” Pursuant to this reading, she reasoned, the phrase “not entitled so to obtain” is best understood to refer to information a person is not entitled to obtain “by using a computer that he is authorized to access”—rather than information he is not entitled to obtain for certain purposes. After expressing her text-based conclusion, Justice Barrett did permit herself to note the “breathtaking” scope of the government’s proffered construction, which would criminalize “everything from embellishing an online-dating profile to using a pseudonym on Facebook”—but she was careful to note that this observation was merely “extra icing” on an “already frosted” textual cake. Justice Thomas, joined by Justices Roberts and Alito, dissented, taking the position that the majority’s interpretation overlooked “basic principles of property law,” and criticizing the majority for their “hypothetical” concern that the government might enforce the statute in an excessively broad manner.

Show Me the Warrant

Justice Scalia has been described as a champion (albeit by some an “underappreciated” one) of the Fourth Amendment, and he wrote important opinions finding the Fourth Amendment violated by, for example, the capture of thermal images of an individual’s home, the tracking of a vehicle with a GPS device, and the use of a drug-sniffing dog on a suspect’s front porch. There appears to be reason to believe that Justice Barrett has a similar solicitude for the Fourth Amendment’s protection, including two cases in which she was content to join defendant-friendly majority opinions without comment, while many of her conservative colleagues wrote or joined separate opinions suggesting limitations on the majority’s holdings.

Lange v. California, 141 S. Ct. 2011 (2021), presented the question of whether pursuit of a fleeing misdemeanor suspect categorically justifies law enforcement’s warrantless entry into a home. Justice Barrett joined Justice Kagan’s majority opinion holding that it does not. Justice Kagan noted that assessing the exigencies of the situation generally calls for a case-specific analysis, and that misdemeanors are commonly minor. Justice Thomas, joined in part by Justice Kavanaugh, wrote an opinion concurring in part and in the judgment, noting that the Fourth Amendment’s case-by-case analysis is subject to historical exceptions, and that the federal exclusionary rule does not apply to evidence discovered in pursuit of a fleeing suspect. Chief Justice Roberts, joined by Justice Alito, wrote an opinion concurring in the judgment, arguing that a suspect’s flight is sufficient to create an exigency, regardless of whether the suspected offense is later determined to be a misdemeanor. And Justice Kavanaugh wrote a concurring opinion predicting that as a practical matter, the difference between the approaches described by the chief justice and by the majority would generally be academic. Among the Court’s conservatives, only Justices Barrett and Gorsuch declined to write or join any separate opinion describing limitations on or exceptions to the majority’s holding.

In Caniglia v. Strom, 141 S. Ct. 1596 (2021), the Court addressed the question of whether the “community caretaking” rationale, which the Court had cited to validate warrantless searches of vehicles on public highways, could also vindicate a warrantless entry into a home. Justice Thomas’s opinion for the unanimous Court held that it cannot. Justice Thomas’s opinion was short and straightforward, rejecting the First Circuit’s extrapolation from the Court’s precedent of a “freestanding community-caretaking exception that applies to both cars and homes.” Chief Justice Roberts wrote a concurrence, joined by Justice Breyer, stressing that the Court’s opinion did not prevent officers from entering a home without a warrant to prevent serious injury. Justice Kavanaugh wrote a concurrence to “underscore and elaborate on” Chief Justice Roberts’ observation. And Justice Alito wrote a concurrence enumerating issues the Court did not decide, including the possibility that other circumstances might justify warrantless entry into a home. Justice Barrett, along with Justice Gorsuch, joined the majority opinion without writing or joining any separate opinion.

Show Me Your Flintlock

Although “the text is the law” for Scalia and the Scalia-esque, construing an old text means discerning its original public meaning—which requires an often quite-detailed examination of pertinent historical sources. In 2008, such an examination of the Second Amendment’s text formed the basis of Justice Scalia’s opinion for the Court in District of Columbia v. Heller, 554 U.S. 570 (2008), in which the Court held that the Amendment protects an individual’s right to keep and bear arms, unconnected to service in a militia. Although Heller was not a criminal case (it was an action to enjoin the enforcement of gun-control statutes), it set off a mad dash for Second Amendment claims among defendants charged with firearms-related offenses—particularly offenses criminalizing the possession of firearms by various categories of individuals. Perhaps in an effort to tamp down such claims, Justice Scalia’s opinion included an observation that it should not be taken to cast doubt on (among other things) “longstanding prohibitions” on the possession of firearms by felons. This language appears to acknowledge the white whale of Second Amendment criminal litigation: the statute outlawing the possession of firearms by felons—one of the most frequently charged of all federal crimes. But such claims have been filed with great frequency nevertheless. While they have generally been rejected, circuit courts have wrestled with such questions as whether Heller’s “longstanding prohibitions” language settles the matter, and whether courts should entertain as-applied Second Amendment challenges to the felon-dispossession law. In 2016 the Third Circuit actually upheld as-applied Second Amendment challenges to this law.

So far, the Supreme Court has been content to let the matter percolate—although, after all this time, “petrify” might be a better word. In 2016 the Court issued a brief per curiam decision disapproving of the Massachusetts Supreme Judicial Court’s analysis in a case involving a state law prohibiting the possession of stun guns. In 2022 the Court issued a major Second Amendment decision in New York State Rifle and Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022). The Bruen opinion, authored by Justice Thomas, doubled down on Heller’s historical analysis and extended it to invalidate New York laws restricting the public carrying of firearms.

Justice Barrett joined Justice Thomas’s opinion in full, and also wrote a concurrence that flagged open questions relating to the methodology of historical Second Amendment analysis. Justice Barrett also pointedly disapproved of any interpretation of the Court’s decision that would endorse “freewheeling” reliance on historical practice from as recently as the mid-to-late 19th century to discern the Amendment’s meaning.

In fact, Justice Barrett’s profile on the Second Amendment frontier actually extends further back, to her brief tenure on the Seventh Circuit. Defendants seeking to challenge the felon-dispossession law have focused considerable attention on a dissent that then-Judge Barrett wrote in 2019, between Heller and Bruen. The appellant in the case was barred from possessing a firearm because of his conviction for felony mail fraud. He challenged the felon-dispossession law, arguing that it violated the Second Amendment as applied to him. The panel majority, applying a form of interest-balancing that was typical of the circuit courts’ Second Amendment analysis at the time, rejected the challenge on the ground that the felon-dispossession statute was substantially related to the important governmental objective of preventing gun violence. In her dissent, Judge Barrett supplanted the majority’s interest-balancing analysis with a thorough historical review, which led her to the conclusion that the Second Amendment permits a legislature to disarm “dangerous people who have not been convicted of felonies,” but not “felons lacking indicia of dangerousness.”

In Bruen, the Court categorically rejected the circuit courts’ interest-balancing approach to Second Amendment analysis, requiring courts to instead apply the sort of historical analysis that then-Judge Barrett conducted in her 2019 dissent. Felons’ eyes—particularly nonviolent felons’ eyes—are now focused intently on Justice Barrett, waiting to see whether she will reiterate her view of the Second Amendment’s application to the felon-disarmament law—and whether four or more of her colleagues will agree with her. The Court’s grant of certiorari in United States v. Rahimi, No. 22-915, which involves a Second Amendment challenge to the law prohibiting the possession of firearms by individuals subject to domestic-violence restraining orders, indicates that it is not done clarifying the contours of the Second Amendment’s protection.


In short, Justice Barrett’s jurisprudence in criminal cases has been substantially similar to Justice Scalia’s. It should be noted, however, that her personal style has been decidedly different. Where Scalia was famous for his often rather combative separate opinions, Justice Barrett has been less apt than some of her conservative colleagues to write concurrences or dissents at all—and when she has, her tone has been more belles-lettres than bellicose. It follows that discerning the finer points of her judicial philosophy in criminal cases may be a bit harder, and take a smidge longer, than figuring out Scalia’s. As a general matter, however, the smart money will be on views that echo Scalia’s, served up at a cooler temperature.

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Daniel L. Kaplan

Assistant Federal Public Defender

Daniel L. Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona. He specializes in direct criminal appeals.