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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Ever wondered what it’s like to argue before the Supreme Court? Four IJers who have been in the hot seat talk shop on the latest episode of the Short Circuit podcast. And over at NPR, IJ Senior Attorney Robert McNamara (who we really, really hope will be on the hot seat next term) tells it like it is on qualified immunity. Click here to listen. 

• After White House correspondent for Playboy gets into a shouting match with a former aide to President Trump at a press event, the correspondent’s hard-pass credentials (which allow on–demand access to the White House) are suspended for 30 days—the first time in over 50 years of issuing such credentials that anyone’s have ever been suspended or terminated. D.C. Circuit: The White House can certainly punish “rogue, mooning journalists,” but first it must give them some notion of the rules they must abide by, which it hasn’t. So the correspondent’s suspension likely violated due process.
  
• Sexagenarian accidentally activates his medical-alert system early one morning, and White Plains, N.Y. police are dispatched. Upon arrival, police demand to be let in, but the man repeatedly and emphatically says he’s not in need of assistance. Instead of leaving, they call in a dozen “tactical reinforcements,” triggering the man to (allegedly) have hallucinations and flashbacks to his military service. An hour-long standoff ensues, at the end of which police shoot, kill him. Second Circuit: Sure sounds like unlawful entry—that claim should not have been dismissed. (Police did not face criminal charges.)
• To guard against corruption or the appearance of it, Pennsylvania bans casino and racetrack owners from making contributions to political candidates. A First Amendment violation? State officials: We don’t want well-documented corruption in those industries taking root here. The ban is just common sense. Third Circuit: That won’t do. Nineteen other states that allow commercial, nontribal gambling do not impose such a ban. You needed to actually present some evidence from those states.
• “Quoting the Declaration of Independence, the Gettysburg Address, the Bible, and various poems,” last month a district court ordered that any Texas voter wishing to vote by mail to avoid COVID-19 may do so. Fifth Circuit: ”The Virus’s emergence has not suddenly obligated Texas to do what the Constitution has never been interpreted to command, which is to give everyone the right to vote by mail.” Texas law that allows seniors to vote by mail—but not those under 65—probably survives rational basis. The district court’s order is stayed.
• In which Judge Jones of the Fifth Circuit, in a decision reviving a takings claim about groundwater, issues a rarely seen partial dissent from her own majority opinion.
• Special deputy sheriff for Henry County, Ohio participates in a shooting class at a public range, accidentally fires his handgun and grievously injures another participant. And while that incident may well give rise to a state-law tort claim, holds the Sixth Circuit, federal constitutional claims are off the table. Nothing about the accident turned on the shooter’s status as a gov’t official.
  
• Confronting a tangle of discovery disputes arising out of the Flint Water Crisis, the Sixth Circuit concludes that the district court did everything right. Former Michigan Gov. Rick Snyder (and former State Treasurer Andy Dillon) are off the hook for discovery as parties while their qualified immunity defenses wind through the courts. But the rest of the litigation is still moving forward. And as to that other litigation, Snyder and Dillon can be treated as non-party witnesses and made to sit for depositions.
• Kentucky outlaws “bodily dismemberment, crushing, or human vivisection of the unborn child” unless the mother first undergoes a procedure to induce fetal demise. Sixth Circuit: The latter procedures are not feasible options, ​which means the law effectively bans second-trimester abortions​. And that is unconstitutional. Dissent: We should hold this case until the Supreme Court decides whether abortion providers have standing to invoke the constitutional rights of their patients, given that the only plaintiffs here are abortion providers.
• Indiana man believes that his father was a victim of murder and that local law enforcement destroyed the evidence that would have proved it, depriving him of access to the courts. Seventh Circuit: It was error to say he lacked standing to bring this extremely legally bogus claim.
• St. Louis woman is robbed at gunpoint of phone, cash. One week later, another woman is killed in an armed robbery three blocks away. Police discover a man matching the first woman’s description of her robber, and he’s convicted. But wait! Detectives also interviewed a third woman who said her boyfriend stole the ​first woman’s phone, a charge he denied while admitting to the murder ​of the second woman—information the jury should’ve heard, so conviction reversed. Prosecutors decline to pursue a second trial and dismiss charges. The man sues police for suppressing, destroying, and fabricating evidence and otherwise violating his rights. Eighth Circuit: Nope.
• Georgia’s ballot-access rules for third-party candidates are much more onerous for non-statewide candidates than for statewide candidates. Simplifying, a third-party candidate for governor can get on the ballot upon collecting signatures from 1% of registered voters; a third-party candidate for the U.S. House of Representatives needs 5%. Eleventh Circuit: The district court incorrectly short-circuited the Libertarian Party’s First Amendment challenge by declining to apply the Anderson v. Celebreeze test. (No comment from the ghost of Anthony J. Celebrezze Jr., whose surname had noticeably more zs and fewer es than the Eleventh Circuit gave him credit for.)

Joshua and Emily Killeen will soon operate a desert retreat and wedding event space on their 10-acre property in rural Yavapai County, Arizona. They initially opened the business without going through the county’s extensive permitting process and have now shut down until their paperwork is in order. But in the meantime, county officials are punishing the couple by banning them from advertising online that their business is “coming soon” and forcing them to cease hosting free weekly events where friends and neighbors were invited to attend free yoga and vegetarian dinners. Which is unconstitutional, and last month the Killeens joined with IJ to file a lawsuit in federal court. Click here to learn more. 

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A British research team has concluded that hydroxychloroquine is not an effective treatment for COVID-19 and has halted its use in the United Kingdom’s RECOVERY trial. That trial was established in March to evaluate the efficacy of various medicines for the treatment of COVID-19.

The Independent Data Monitoring Committee for the trials conducted an unblinded review of the hydroxychloroquine data. Based on that review, the researchers have concluded that “there is no beneficial effect of hydroxychloroquine in patients hospitalised with COVID-19.” Martin Landray, one of the principal investigators, told reporters: “This is not a treatment for COVID-19. It doesn’t work.”

According to the statement from the RECOVERY trial investigators,

A total of 1542 patients were randomised to hydroxychloroquine and compared with 3132 patients randomised to usual care alone. There was no significant difference in the primary endpoint of 28-day mortality….There was also no evidence of beneficial effects on hospital stay duration or other outcomes.

These data convincingly rule out any meaningful mortality benefit of hydroxychloroquine in patients hospitalised with COVID-19.

“The RECOVERY Trial has shown that hydroxychloroquine is not an effective treatment in patients hospitalised with COVID-19,” said Peter Horby, the chief investigator for the trial, in the statement. “Although it is disappointing that this treatment has been shown to be ineffective, it does allow us to focus care and research on more promising drugs.”

While the RECOVERY researchers was looking into hydroxychloroquine’s effects on hospitalized patients, an American-Canadian team of researchers was concluding that the drug also does not work as preventive treatment.

Based on some observational studies, some proponents of hydroxychloroquine remain enthusiastic about the possibility that adding zinc will boost the drug’s efficacy. Forthcoming results from ongoing trials will eventually corroborate or refute that lingering hope.

In the wake of the now scandalously discredited observational hydroxychloroquine study published on May 22 in The Lancet, these results should help clinicians, patients, the public and policymakers make better decisions about how best to treat COVID-19.

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The U.S. Supreme Court’s 2019–2020 term is rapidly reaching its conclusion. By the end of June, the Court is expected to decide several high-profile cases that involve some of the most contested issues in American law, from abortion to school choice to federal anti-discrimination rules. Here are three cases to watch in the coming weeks.

June Medical Services v. Russo

The state of Louisiana requires doctors who perform abortions to have admitting privileges at local hospitals. That restriction sparked a constitutional challenge from abortion providers, who argue that the law serves no valid health or safety purpose and violates the Court’s own precedents forbidding regulations that place an “undue burden” on abortion rights.

If that sounds familiar, it’s because the Court decided a nearly identical dispute in Whole Woman’s Health v. Hellerstedt (2016), striking down a Texas law that required abortion providers to have admitting privileges at local hospitals. Among other things, June Medical Services will show whether a majority of the Court is interested in following Whole Woman’s Health or in crafting a new jurisprudence that is more deferential towards state restrictions on abortion.

Espinoza v. Montana Department of Revenue

In 2015 the Montana legislature created a scholarship program “to provide parental and student choice in education.” It operates by creating a tax credit for individuals and businesses that donate to private, nonprofit scholarship organizations, which then use such donations to fund educational scholarships. Families who qualify may use the money to help send their children to a “qualified education provider,” a category which includes religiously affiliated K–12 private schools.

But the Montana Supreme Court killed the program off three years later, holding that it violated a provision of the Montana Constitution which bans the use of public funds “for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”

The question for the U.S. Supreme Court is whether the state may prohibit the sort of school choice initiatives that the Court itself has previously upheld under the First Amendment. In Zelman v. Simmons-Harris (2002), for example, the Supreme Court ruled in favor of a school choice program in Cleveland, Ohio. The program’s opponents claimed it was unconstitutional to provide tuition aid to parents who opted to send their children to religiously affiliated magnet schools. But the Court said such a system passes constitutional muster as long as it is “neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice.”

Bostock v. Clayton County, Georgia

Title VII of the Civil Rights Act of 1964 makes it illegal for an employer to discriminate against a job applicant or employee “because of such individual’s race, color, religion, sex, or national origin.” Gerald Lynn Bostock argues that Clayton County, Georgia, violated this provision when it fired him from his job as a child welfare services coordinator solely because of his sexual orientation. The far-reaching question before the Supreme Court is whether employment discrimination because of sexual orientation qualifies as employment discrimination “because of…sex” under Title VII.

As I’ve previously noted, Bostock and his lawyers have enlisted the support of a surprising legal ally in the case:

In their principal brief to the Supreme Court, Bostock and his lawyers rely in part on Justice [Antonin] Scalia’s unanimous 1998 ruling in Oncale v. Sundowner Offshore Services, Inc. At issue was whether same-sex workplace harassment violated Title VII’s prohibition on discrimination “because…of sex.” Scalia held that it did.

“Male on male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” Scalia acknowledged. “But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” The protections of Title VII, Scalia concluded, “must extend to sexual harassment of any kind that meets the statutory requirements.”

Scalia, a self-described textualist, often argued that the plain meaning of a statute should trump the ostensible intentions, purposes, or expectations of the statute’s authors and supporters. That was one of the reasons why Scalia famously rejected the use of legislative history in such statutory cases.

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