Protect the Accused

Justice Barrett shifts the Supreme Court rightward. But on the issue of due process, she echoes her liberal predecessor

I fervently hoped Ruth Bader Ginsburg’s dying wish would come true: that her replacement on the Supreme Court would not be named until after the presidential vote. But a week before Election Day, after a confirmation process defiled by Republican hypocrisy, Amy Coney Barrett was sworn in. Many are justly concerned that the new conservative justice will overturn the legacy of her liberal predecessor. But on one crucial matter—protecting the rights of the accused—Ginsburg and Barrett appear to be of like minds.

This is an issue of pressing importance today, as the drive to achieve justice for long-oppressed groups in America collides with the rights of individual defendants—notably, male college students who have been charged with sexual assault yet deprived of the protections granted to any accused. Due process is not an issue that ought to pit feminists against anti-feminists, or the right against the left. As Ginsburg herself asserted, such protections are for all.

Ginsburg was one of America’s most effective advocates for reforming our legal system to allow women’s full participation in society. But she sometimes broke with today’s feminist jurisprudence in her insistence that the system requires that fundamental rights must be upheld, even for the reviled. In 2019, Barrett was faced with just such a person when asked to consider whether Purdue University had violated the rights of a student known as “John Doe,” who had been found responsible for sexually assaulting his then-girlfriend. The case was adjudicated under Title IX, the law that governs sexual harassment and assault accusations on campus. Barrett wrote the opinion for the U.S. Court of Appeals for the 7th Circuit, which unanimously agreed that Purdue may have violated John’s rights.

That two of three adjudicators in the case admitted to not having read the investigation report, Barrett said, “suggests that they decided that John was guilty based on the accusation rather than the evidence.” The third adjudicator, who apparently had read the investigation report, simply assumed John’s guilt, according to Barrett. And the young man had little recourse: He himself had not seen the evidence, and the panel refused to allow him to present witnesses.

“John’s circumstances entitled him to relatively formal proceedings,” Barrett wrote. “Yet Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension.” The fact that Purdue withheld evidence against John “was itself sufficient to render the process fundamentally unfair.” To satisfy due process, Barrett cited precedent that “a hearing must be a real one, not a sham or pretense.”

Although the Supreme Court has yet to hear a case on Title IX procedural protections, Ginsburg voiced her concerns about the rights of accused young men on campus in a 2018 interview. Ginsburg knew that justice for women was not at the expense of men, but that everyone benefits when laws are applied fairly. Indeed, part of the reason for Ginsburg’s effectiveness as a lawyer for the ACLU bringing sex discrimination cases was that she often chose cases in which men had been discriminated against by laws based on damaging sex stereotypes.

Ginsburg was committed to the rights of accused men even when that commitment appeared to stand in opposition to the best interests of women. For proof, look no further than the Supreme Court’s Confrontation Clause revolution, led by Barrett’s mentor, the late Justice Antonin Scalia, but also supported by Ginsburg in what was an unlikely coalition of liberal and conservative justices. Under the 6th Amendment of the Constitution, a criminal defendant has the right to confront and cross-examine the witnesses against him. Until recently, however, prosecutors could introduce accusatory statements without the accuser ever testifying. In Crawford v Washington (2004), the Supreme Court drastically restricted this practice and revisited the issue two years later in Davis v Washington.

Ginsburg joined Scalia’s opinions, even though they made it harder to prosecute domestic violence. Victim advocates filed a brief in Davis v. Washington, observing that since Crawford v. Washington, “many prosecutors and courts have responded by dropping or dismissing charges in a disturbing range of cases.” But the court—and Ginsburg—declined to change stance.

Over and over, Ginsburg voted to hold the government’s feet to the fire in protecting an accused’s 6th Amendment rights. She wrote the majority opinion in Bullcoming v New Mexico (2011), which prohibited the state from introducing a forensic blood analysis without calling to the stand the analyst who had completed or at least observed it. Ginsburg also joined Scalia’s majority opinion in Giles v California (2008) that criticized a dissent from Justice Stephen Breyer and asked whether he was suggesting that “we should have one Confrontation Clause…for all other crimes, but a special, improvised, Confrontation Clause for those crimes that are frequently directed against women?”

As a former deputy public defender, I believe in the fundamental importance of due process. In my work, I have represented people whose innocence didn’t become apparent until I cross-examined the witnesses against them. As an advisor in Title IX proceedings, I have helped students clear themselves of grave charges, but only after we mounted a vigorous defense made possible by due process. In both arenas, it’s been my experience that when allegations get more serious—especially if they concern sex crimes—prosecutors and universities try to justify removing procedural protections.

I am proud of my work, and I don’t believe that my advocacy makes me anti-victim. Loving my daughter is not inconsistent with fighting for the rights of somebody’s son. I make sure that my clients are treated fairly, and that they are judged based on the evidence and not preconceptions about who’s telling the truth. The consequences—whether it’s prison or expulsion—are too serious to do anything less. But I don’t just help the accused. When a former student told me that she had been raped, I insisted on a full police investigation.

I wish the election had decided Ginsburg’s successor, and I have profound concerns about the impact Barrett will have on the Supreme Court and on our country. Regarding due-process rights for the accused, however, I feel hopeful that Barrett will continue this important part of Ginsburg’s legacy.

Tamara Rice Lave is a law professor at the University of Miami and a 2020 Public Voices Fellow. She was a deputy public defender in San Diego from 1995-2005, and the reporter for the ABA Criminal Justice Section Task Force on College Due Process Rights and Victim Protection.