Kind of justice she would be if appointed to the court. Adler, a memorial professor of law at the Case Western University school of law. A graduate of the george mason clarkhool, jonathan served on the d. C. Circuit. Jonathan worked with the Competitive Enterprise Institute or he was a director of their environmental studies program. Anathan has received distinguished teacher of the year award and the federal society for excellent in teaching and commitment to students. Fellow at aa senior he isch center in montana a frequent commentator. His articles appear in many newspapers and scholarly journals. He is the author and editor of several books. He is a regular contributor to the bulletin. Well talk about Administrative Law and due process. After jonathan, well hear from Professor John baker. He is from Louisiana StateUniversity School of law. Atis a visiting professor Georgetown School and a guest lecturer at many other universities both here and abroad. Classcurrently teaching via zoom at transactional law. Degree,ion to his law john earned a phd in political law. Courted as an assistant district eternity. Editedwritten and several articles. Has argued two cases in front of the Supreme Court, and for carrying on the tradition by teaching a Supreme Court seminar in china. As interesting side note. He has known the spirit for many years. Finally, we will hear from yuliya schapiro. A graduate of the universitys school of law school. Cato, schapiro was in private practice at toptier law firms and a special assistant to the Multinational Force in iraq on rule of law issues. He is an adjunct law professor at George Washington university he is a frequent commentator. His articles have also appeared in scholarly journals struck the country. At a remarkable attorney, he is the author of a new book, disorder supreme additional nominations and the politics of americas highest court. Jonathan, the floor is yours. Jonathan great, thank you, john. It is a pleasure to be here. Happy to talk about judge barretts record. Just some initial background, judge Amy Coney Barrett has been on the seventh circuit for just under three years. She was confirmed in november of 2017. She has participated in over 600 cases and authored over 100 decisions, majorities, concurrences, and dissents. Overall her record has been , characterized as conservative, but it is worth noting that in this threeyear period, despite being on 600 cases, she has not dissented all that often. There are not that many dissents from her opinions. She disagrees most often with judge david hamilton, an obama nominee. But they have only split i believe on 10 cases and then after judge hamilton, she is most often divided with judge wood and easterbrook, clinton and reagan judges respectively. I think one reason for that is she has a very nononsense approach to judicial decisionmaking. Her opinions are thorough and careful, certainly in the area of Administrative Law where i am focused, it is nice to see a judge that doesnt take shortcuts, that doesnt disguise the complexity that often exists in cases. But at the same time, there is very little editorializing, very little extraneous interjection of her own views or opinions. She does what is necessary to answer the question before the court. If a question is particularly difficult or the precedents are meddlesome, she works through case law to reach a result. Now it is interesting to talk , about her Administrative Law opinions because after the gorsuch and kavanaugh nominations, we are used to Administrative Law being a major issue. Judge gorsuch had written some very aggressive and prominent Administrative Law decisions as a judge on the u. S. Court of appeals for the 10th circuit, and judge kavanaugh obviously as a judge on the d. C. Circuit, he was doing administered of law all the time. Their interest and expertise in Administrative Law is part of why they were nominated to the Supreme Court. By comparison, the seventh circuit does not hear a lot of Administrative Law cases. Judge barrett has heard a ton of civil rights cases, section 93 cases, sentencing cases. Administrative law cases do not come up that often. There are not that many challenges to federal Agency Actions that have ended up in the seventh circuit or have ended up in front of panel she has been on. Most of the Administrative Law cases she has had have dealt with immigration, and here the pattern you see is a very careful effort to scrutinize the actions that the Relevant Agency took in this case, with the immigration board of appeals and in some case Immigration Judges and to render a judgment based on what the relevant case law and statutes require. As a result she has at times ruled against immigrants and road ruled for them. Upheld orders of removal and andupheld orders of removal and overturned orders of removal. You dont see her opinions as a judge who has a particular agenda in these areas other than to do what the law requires. I want to highlight a few cases and then turn it over to my panelists, copanelists, because i want to leave a lot of time for discussion. Perhaps the most significant Immigration Law case she has dealt with, and opinion of hers is actually a dissent she wrote in a case called cook county versus wolf. This is one of multiple challenges to the public charge rule, promulgated by the Trump Administration and to , oversimplify what is really a complicated regulation here, basically this is a rule that makes it more difficult for nonimmigrant visa holders to get a change in their visa status or to get entry to the country based on a projection that they may be a public charge, that they may become dependent upon public assistance. This is something that the relevant immigration metrics provide for an what the Trump Administration did was promulgate a new regulation, offering a new interpretation of what the phrase public charge means. This has been challenged in and multiple courts across the country. Before the seventh circuit, she wrote a careful dissent explaining why the meaning of the word, the phrase public charge has some ambiguity. Precisely what degree of dependency renders public charge is a question that congress did not fully answer, and that the answer to that question that the department of Homeland Security provided was in that realm of ambiguity and is likely to survive a legal challenge. It is interesting she reached step two of chevron, some some Circuit Court judges and Supreme Court justices are of dust very reluctant to find that a statute is ambiguous. She identified what the outer boundaries of this phrase public charge likely are, and now there is wiggle room left in that phrase that the Trump Administration properly exploited. I think that opinion is quite notable. If you just want to see her method at work, i recommend looking at that. One issue that comes up a lot in Administrative Law is due process. She is an important majority opinion in a case, one of dozens upon dozens of challenges to University Disciplinary proceedings for allegedly Sexual Harassment or sexual assault. This one was against Purdue University in indiana, and she wrote what has become an influential opinion on how to evaluate the actions of universities. I checked this morning, this opinion has been favorably relied upon in literally dozens of opinions since. Here what she found is that while the student in question had a protected liberty interest under the due process clause in his ability to participate the judgment against him by the university resulted in his expulsion, so it was not purely a stigma that he faced. She demonstrated and expand why explained why the universitys procedures were clearly deficient under the due process clause. Purdue university provided the student less process than a High School Student is entitled to if they are going to be suspended from high school for a week. A judgment of guilty was rendered, among other things, without hearing directly from the student that he had allegedly assaulted. That student did not testify against him, did not submit a statement directly against him. Nonetheless, the university decided the allegations against him were supported by a preponderance of evidence, and judge barrett wrote an opinion reversing the lower courts dismissal of both his due process and title ix claims. What may also be of interest of this case, dutch barrett found judge barrett found that the University Officials were entitled to the qualified immunity because their violations, the due process violations there had not been clearly established under seventh circuit caselaw. Although under her opinion, the future universities would be. She does not have much in the way of environmental cases, but she does have several standing opinions, which i think suggests that she is someone who takes article three standings seriously. There is something almost scaliaesque in her standing opinions. As viewers may know justice , scalia cared a lot about article three standing and ensuring that courts made sure that only those litigants who should be in court were in fact in court. That doesnt mean she has a reflexive vote against standing. She has found standing against the receipt of unsolicited text messages, but she has scrutinized claims of injury and claims of causality very carefully, and we are ending on this point because this is an area where if i had to make a prediction, she will definitely be different than Justice Ruth Bader ginsburg. Justice ginsburg was arguably the most permissive when it came to article three standing of current justices, the most willing to find standing under article three. And i would suspect based on her record that judge barrett would provide a much more rigorous standing inquiry with a narrower view of what article three allows. I have probably gone over, so i will stop there. Terrific, jonathan. John, the floor is yours. John i want to thank jonathan for what he did now by giving an overview that was very fine, and i concur in everything you said about her approach. My only objection to what jonathan said is that he stole some of my thunder. He went into the standing cases, which were assigned to me. You know come on, jonathan. , anyway, people were concerned about what her viewpoint was that she expressed years ago, an article was john garvey, than professor at notre dame, Capital Punishment, her role as a catholic has an influence on her. The fact that in two Capital Punishment related cases, not on the substance but on the question of the last minute application for delay and the execution, she voted against granting the stay in both cases, so that ought to give some people worried about that some kind of comfort at least. The criminal law area is one i want to go into. I have to tell you this briefly. Years ago when she was going to be a first year law student, she was listed in my criminal law class. The first day i showed up, she is not there. Where is amy . Anyway she went to notre dame, the best decision she ever made, because it would be years later before she would be a Supreme Court clerk, and it was thankfully to that faculty that got her along the track. In any event, and criminal law, she generally is upholding convictions, but the results dont tell you anything. Most cases of criminal conviction are going to be upheld. That is just statistics. So what you really have to do is look at her reasoning in particular cases. I will go over a couple of cases. In u. S. Versus king, which was mainly about a brady issue, it was very interesting. She went very carefully, as jonathan has already described her methodology, and the first part of the test was, was this helpful to the defendant . She said yes, yes, and then she went through the other two carefully and said no, on balance it does not amount to a brady violation. On the other hand, she can be really tough on ethics. In u. S. Versus atwood, the sentencing judge had communicated with the u. S. Attorneys office, per se violation, ex parte communication, boom, vacated immediately and sent the case back for sentencing by another judge. You cannot really categorize her in this area because she is thorough and she is fair. It is on the facts. The Fourth Amendment cases are interesting. There are two cases, the terry stop is in the watson case, not in the terry case. In any event, there was this anonymous tip, and that is always a problem. The tip came from a 14yearold kid was using somebody elses cell phone to report on some kids in basically a high crime area. Lets put it that way. And he said they are fooling around with guns, the cops came, and thought that was sufficient for a terry stop, and she said no. She went through the latest case, and went point by point, and really interesting, one of the keys in that case from the Supreme Court was if it came from a cell phone to a 911 call, you could trace it. Well in this case, she pointed out that in fact it did not come from the kids phone, it came from somebody elses phone, so it could not be traced. When of the factors was that he was in a rough neighborhood, and people in poor neighborhoods are entitled to the same gun rights as people in wealthy neighborhoods. And that clearly was a factor. It was interesting. Again, as in everything i have ite, it has been detailed in a way that few people on the Supreme Court have been i think in particular about Justice Alito and his care in detail. Justice scalia was also detail, but he had a lot of words that are rare and judge barretts jurisprudence. The jurisdiction. She had a case involving a , couple cases involving jurisdiction, and i think as jonathan has already indicated, she was a stickler on jurisdiction. One was a case on a foreign defendant, and in a specific jurisdiction, even the long arm statute of wisconsin says you can tell the guy no. She said there was not sufficient context. I like it because i think that long arm jurisdiction has been greatly abused over the years. Interesting case involving in a walker torry appeals they are hard to get, as you know. The party in this case got the district judge after the judge ruled against the party to grant an appeal. And throughout a 10day period, the paralegal typed the wrong email address was types, the email bounced back, it did not go back to where it should have, and it went to the spam folder. By the time they found it, it was past the 10day period. The question was, is this jurisdictional or just plain processing . She went through everything and said, no, this has to be jurisdictional based on the Supreme Court opinion, etc. , etc. So, again, tough on jurisdiction. That is a separation of powers question. The standing issues are important, separation of powers, as jonathan was pointing out. And in one case, castillo, the fair credit act, she had the fact that there was a mistake did not mean it was a harm, and a harm is the first thing you have to establish for standing. She was following a key case in terms of the Supreme Court. It was a scalia opinion, and she had the statement that we are empowered to hear cases under constitution, but it cannot be freewheeling. You know, again, the other thing that she did was in the opposite direction in a sense, but it was a different case, difference she cited her opinion in the first case to reach an opposite result in the next case. In involved the telephone Consumer Protection act, and she started out with a quote i love and i think others have heard it before. She said, the wording of this provision we interpret today is enough to make a grammarian throw down her pen. She is a real grammarian. You can say that about many statutes, especially criminal law statutes. But she goes with the common law history, disagrees with the 11th circuit, and goes, this may not qualify as common law, but congress decided it was a harm. She was careful distinguishing it from the prior case. The prior case was a procedural right, which scalia pointed out constantly that procedural rights cannot trump the requirements of standing under article three. Here it was different. It was a substantive harm that congress recognized, and that sure he did not appreciate that. Unlike a lot of judges who never thought about their philosophy until they got to the Supreme Court, we have been getting a lot better about appointing justices who have thought about their philosophy. And if anybody who has thought about it clearly, she has. For six years, she and i lectured back to back at blackstone program. She would always lecture on originalism and interpretation. Shes got it down cold. So, with that i will turn it over. You were mentioning before about separation of powers cases. And jurisdiction. I know that in one other case, the name that escapes me both parties appealed. She was skeptical. And they ended up dismissing. She got the supplemental brief as to whether they reached the dollar threshold, and it turns out the court ended up determining that they did not and that the District Court judge in one of the c