by Nathan J. Robinson
I do not care about Amy Coney Barrett’s membership in the “People of Praise.” I am uninterested in her religion or her family life. I am not even terribly interested in her credentials, e.g., whether she did a prestigious clerkship, or published a bunch of academic articles, or got good course evaluations as a law professor. One question alone matters to me: what effects would her presence of the Supreme Court have? In other words: how would she rule on issues that matter? Who would be helped or hurt by these rulings? The most important criteria in evaluating a potential justice are their stated values and their prior record, because these are the best evidence we have with which to speculate about what they would do if placed on the nation’s highest court.
In the case of Amy Coney Barrett, an examination of her judicial opinions and public statements reveals a straightforward conclusion: she should not be placed on the Supreme Court, and everyone should oppose her confirmation. On the Court, she is likely to issue rulings that cause significant needless harm to innocent people and make the country a more unjust place, with rulings that erode the rights of workers, immigrants, criminal defendants, and, of course, those who need abortions. Sometimes her opinions have been downright cruel. They disqualify her, full stop.
Let’s begin with an immigration case, one that shows very well how Barrett will undermine basic constitutional rights. Mohsin Yafai is a United States citizen whose wife, Zahoor Ahmed, is a citizen of Yemen. Yafai and Ahmed wanted to live together in the United States, so Ahmed and her children applied (using the correct legal process) for visas. The consular office denied Ahmed’s application on the grounds that she had “attempted to smuggle two children into the United States using the identities Yaqub Mohsin Yafai and Khaled Mohsin Yafai.” It’s not clear why the consular officer believed Ahmed was attempting to “smuggle” children (no evidence was provided to the family), but apparently the consular officer thought the children Ahmed had applied for visas for were not actually her children. In any case, the children, Yaqub and Khaled, had tragically drowned while the applications were pending. Yafai and Ahmed then submitted a large amount of evidence to the consulate, including “vaccination records for the deceased children, school records for the older deceased child, prenatal care and ultrasound records, publications concerning the drowning, a passport for the older deceased child, and complete family photos prior to the children’s deaths.” But the U.S. simply affirmed its existing visa denial, meaning that Mohsin (again, a citizen of this country) could not live here with his wife, Zahoor. The two took the matter to the courts.
Here is where Amy Coney Barrett comes in: she threw out the couple’s case. Writing for two judges on a three-judge panel, she said that it didn’t matter whether the accusation was based on no evidence. It didn’t matter whether Zahood Ahmed provided giant piles of counterevidence showing that the visa denial had been a mistake, and that she had fulfilled the legal requirements to come to the U.S. to live with her husband. It didn’t matter if the officer had just made the smuggling stuff up out of whole cloth. Barrett wrote that because the consular officer had cited a statute (the anti-smuggling one) in denying the visa, the decision was “facially legitimate and bona fide,” and therefore would not be reviewed by the court.
The third judge on the panel, Kenneth Ripple (a Reagan appointee), strongly dissented from Barrett’s judgment. The decision, Ripple said, showed “no respect for the Constitution or Congress” because it meant that the government could simply arbitrarily deny visas to people fully legally qualified for them, who had gone through the correct process and done everything right. And the government could do this based on vague accusations for which it provided no support, and without even pretending to review the applicant’s own evidence disproving the accusation. Under such a standard the law would become (even more of) an utterly meaningless fiction, because one’s rights could simply be trampled upon without it being possible to do anything about it. Ripple wrote:
Here, in a case where the Government asserts no national security interest and where the important familial rights of an American citizen are at stake, the Government asks us to rubber stamp the consular decision on the basis of a conclusory [a legal term meaning “stated as a fact without being proven”] assertion. Although Congress has tasked us, by statute, with the responsibility to prevent arbitrary and capricious government action, we look the other way despite the significant record evidence to refute the Government’s assertion and no suggestion that the consular officer even considered it. Congress did not, and would not, sanction consular officers’ making visa decisions in a purely arbitrary way that affects the basic rights of American citizens. We have the responsibility to ensure that such decisions, when born of laziness, prejudice or bureaucratic inertia, do not stand.
Barrett did not have to do this. Even the anti-immigration Center for Immigration Studies acknowledges that this area of law is “nowhere near settled.” Barrett made a choice to empower the government and disempower immigrants (and, remember, immigrants who follow the law to the letter). Ripple wasn’t the only one of Barrett’s fellow appellate judges to take her to task. In a dissent to an opinion denying Yafai and Ahmed a rehearing, judge Diane Wood (joined by Ilana Rovner and David Hamilton) called the ruling “a dangerous abdication of judicial responsibility” and “a deeply troubling extension of current law” because it “insulat[es the officer] from any shred of accountability.” Wood wrote:
At its root, due process requires that the person subject to a governmental action be given enough information to be able to know what the accusation against her is. A regime in which the consular official can just say“no,” and the US citizen spouse must guess both about the accusation that supposedly supported that decision and—critically—what facts lay behind the “no,” is not worthy of this country.
Judges are usually collegial types, so for one of them to call a decision “unworthy of this country” is a strong statement indeed. But it was necessary, because the implications of Barrett’s majority opinion so seriously threaten people’s basic legal protections.
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