Judge Barry the centrist, in 3 opinions

The trumped-up controversy about Judge Maryanne Trump Barry focuses on a single opinion, her 2000 panel opinion in Farmer, the New Jersey abortion-ban case. As I detailed here, that opinion doesn’t support the ideologues’ criticism.

But there’s a broader point that’s been lost so far, too: Judge Barry has been a federal judge since 1983. She’s written gazillions of opinions. The fact that her critics rest their case on one of them is telling.

So, I recently spent some time poring back over Judge Barry’s opinions. It was boring. Unanimous panel after unanimous panel, controversy nowhere to be seen.

Here’s a good example: her 2015 opinion in Montgomery County Recorder of Deeds v. Merscorp. It was a fight over mortgage-recording fees between county deed recorders and the electronic registry industry, a high-stakes case with a raft of amici. Judge Barry’s opinion decided the case in favor of the industry on narrow, statutory grounds, affirming the district court and joining several other circuits. She acknowledged the losers’ policy arguments but said the courts’ role was not to decide if a statute was good or bad. Her opinion was joined in full by Judge Chagares (a W. Bush nominee) and Judge Krause (an Obama nominee). The more Barry opinions you read, the more you find like this.

Of course, judges sometimes disagree. In 2013, Judge Barry sat on a panel with Judges Fuentes and Cowen to decide Galarza v. Szalczyk, a civil-rights appeal brought by the ACLU challenging an immigrant’s detention. The panel majority held that local law enforcement do not have to honor immigration detainers. Judge Barry dissented, and her opinion is gloriously Barry — vigorous writing, pragmatic reasoning, limited scope. Here’s the close:

In the face of all of this, the Majority, in a sweeping
Opinion, has decided this enormously important issue. And it
did not stop there. Rather, it went on to conclude that “[e]ven
if there were any doubt about whether immigration detainers
are requests and not mandatory orders,” to read § 287.7 to
mean that a federal detainer is a command to a law
enforcement agency to detain an individual would violate the
anti-commandeering principle of the Tenth Amendment.

Maybe it would, and maybe it wouldn’t, even
assuming, with no great confidence, that the Tenth
Amendment issue should have been reached. Galarza did,
indeed, raise the issue in the District Court. The County,
however, never offered a full-throated response on the merits,
or lack thereof, of that issue, arguing instead that the
constitutionality of § 287.7 should be litigated in another,
more appropriate, case. Not unimportantly, the District Court
did not in its lengthy Opinion even mention, much less
decide, anything to do with the Tenth Amendment. Very
importantly, the United States was not heard as to it.

All of this makes me very uncomfortable. Given the
posture of the case before the District Court, I’m not sure
how, if at all, the United States could have been brought in.

What I am sure of is that we have gone very far in this very
important case without any input from the United States, and
we should pull back now. For now, though, I’m not prepared
to say, on what has essentially been a one-sided presentation,
that “shall” really doesn’t mean “shall” but, instead, means
“please.” I respectfully dissent.

One last one. Just two years after Farmer, The Third Circuit decided an employment discrimination suit brought on behalf of a group of women, Lanning v. SEPTA, and Judge Barry wrote the panel majority opinion, joined by Judge Roth. The plaintiffs had alleged that Philadelphia’s transit authority discriminated against women by requiring that transit-police applicants meet an aerobic capacity test that equated to running a mile and a half in 12 minutes. The women were represented by top civil-rights lawyers and were joined by the Women’s Law Project and the Feminist Majority Foundation as amici.

Judge Barry, purported radical pro-abortion extremist, ruled against the women. She wrote:

While not all SEPTA arrests are aerobic contests, nor are they always effectuated to apprehend “serious” criminals, the District Court found that “[a]n inability to proficiently perform any … task[] would compromise the effectiveness of the SEPTA transit police.” (emphasis added). In essence, the Court concluded what, to us, is now evident: a SEPTA transit police officer must be ready and able to apprehend not just the numerous sedentary, petty criminals, but also the fleet-footed few who, from time to time, wreak serious harm on the people of Philadelphia.

(footnotes and cite omitted). And her majority opinion concluded:

One final note. While it is undisputed that SEPTA’s 1.5 mile run test has a disparate impact on women, it is also undisputed that, in addition to those women who could pass the test without training, nearly all the women who trained were able to pass after only a moderate amount of training. It is not, we think, unreasonable to expect that women — and men — who wish to become SEPTA transit officers, and are committed to dealing with issues of public safety on a day-to-day basis, would take this necessary step. Moreover, we do not consider it unreasonable for SEPTA to require applicants, who wish to train to meet the job requirements, to do so before applying in order to demonstrate their commitment to physical fitness. The poor physical condition of SEPTA officers prior to 1989 demonstrates that not every officer is willing to make that commitment once he or she is hired. In any event, the multi-agency training which SEPTA candidates receive does not provide sufficient physical fitness training to bring an unqualified candidate up to the physical standard requirements.

This is a raging feminist jurist? Then-Judge McKee didn’t think so. He dissented, at length and with vigor, writing:

Prior to today’s decision, it was established in this Circuit, as it remains established in others, that a job requirement that has a disparate impact based upon gender could only be upheld if the relationship between the discriminatory requirement was so closely related to the essential of a given job that it could be justified as a business necessity. Today, in upholding a discriminatory application process based only upon a colorable claim of business necessity, we retreat from that standard while purporting to apply it.

In the end, these 3 cases merely illustrate what is obvious to anyone with experience practicing in the Third Circuit: the cartoonish image of Judge Barry the hellbent crusader is a fiction. The only folks who actually believe she’s a radical extremist are the radical extremists.