There has been some discussion about Amy Coney Barrett joining a 7CA panel opinion overturning a jury verdict holding (David Clarke’s) Milwaukee County liable for a county prison guard who repeatedly raped a pregnant prisoner. Some of the initial reports were sensationalistic and didn’t make it clear whether this was a case of bad judging or bad law.
In this case, it was the former; the judges essentially had to both ignore the facts and re-write the relevant statute to overturn the jury verdict:
The plaintiff's appellate brief is available here: https://t.co/bsBV7aH6UC
The facts are recounted on pages 16-21 of the PDF. They're awful. The guard repeatedly raped her at the prison.
The issue was whether the county had to pay for the $6,700,000 jury verdict. /2— Max Kennerly (@MaxKennerly) October 17, 2020
The county's ludicrous claim (1st pic) was that the guard's actual job was "to keep inmates safe and secure," and raping inmates isn't that.
The plaintiff's response on this point (2nd pic) was quite persuasive: if that's the job, why was she shackled during childbirth?
/4 pic.twitter.com/xUU6AKpWhO— Max Kennerly (@MaxKennerly) October 17, 2020
And courts across the country, including the Seventh Circuit, have repeatedly recognized that sexual assault can fall within the "scope of employment" for law enforcement, given how they're armed authority figures authorized to deploy violence. /6 pic.twitter.com/GqYlm7opWT— Max Kennerly (@MaxKennerly) October 17, 2020
Judge Barrett, the supposed "textualist," joined in full Judge Manion's opinion that breezed right past actual Wisconsin law to instead rely on the law's supposed "intent and purpose." Then they rewrote Wisconsin law on their own terms, which enabled them to nuke the verdict. /8 pic.twitter.com/CQR9gxaPOo— Max Kennerly (@MaxKennerly) October 17, 2020
So there's Barrett-style "judicial restraint" and "federalism" and "letting legislatures determine policy:" she re-wrote Wisconsin law so she could overturn a Wisconsin jury's factual determinations and compensation for a woman who was repeatedly raped in jail by a guard. /end— Max Kennerly (@MaxKennerly) October 17, 2020
So, she’ll be doing exactly what she’s being put on the Court to do; side with the powerful over the powerless, and if that’s not what the law says so much worse for the law.