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On Thursday, the Court decided Torres v. Madrid by a 5-3 vote. Chief Justice Robert wrote the majority opinion, which was joined by Justices Breyer, Sotomayor, Kagan, and Kavanaugh. Justice Gorsuch wrote the dissent, which was joined by Justices Thomas and Alito. (Justice Barrett did not participate). Co-blogger Orin Kerr wrote a helpful post that explains the current state of Fourth Amendment doctrine. Here, I’d like to use this case to illustrate fractures on the Roberts Court.

I think we can safely presume that Justice Kavanaugh cast the tie-breaking vote. Had he agreed with Justice Gorsuch, the case would have split 4-4, affirming the lower court without setting a precedent. But the timing of this case does not suggest that Kavanaugh labored over which side to pick. Torres was argued on October 14, a few weeks before Justice Barrett joined the Court. And the case was decided on March 25. That five-month span was a pretty quick turnaround for a sophisticated, and sharply divided CrimPro case–especially with so many barbs flying between the majority and the dissent. If Kavanaugh had been on the fence, there would be some artifacts of that vacillation. For example, the opinion would have taken much longer to publish. I’d expect a handdown in May or June, rather than in March. There would be far more footnotes with caveats and distinctions, as a way to water down the majority. And so on. But from my read, the vote at conference was 5-3, and it stuck that way.

I think this join is emblematic of the close bond between Chief Justice Roberts and Justice Kavanaugh. In April 2019, Richard Wolf wrote a provocative article in USA Today, titled “Conservatives’ takeover of Supreme Court stalled by John Roberts-Brett Kavanaugh bromance.” At the time, Kavanaugh surrogates were not happy with the “bromance” comparison. I wasn’t surprised. In the wake of the Kennedy retirement, I consistently told reporters that I expected Kavanaugh to fall closest to Roberts in temperament and jurisprudence.

Over the past two years, the bromance has budded. In OT 2018, Roberts and Kavanaugh were in full agreement 78% of the time, and agreed in full or part 89% of the time. In OT 2019, Roberts and Kavanaugh fully agreed 88% of the time, and agreed in full or part 92% of the time. For OT 2019, the runner-up doublet was Justice Breyer and Justice Kagan, who agreed 82% of the time. By contrast, Justices Thomas and Gorsuch agreed only 52% of the time. And Roberts and Thomas agreed only 41% of the time. So far this term, the trend continues. On Thursday, Roberts and Kagan were wingmen with the Kagan-three in two sharply divided cases: Torres and Ford.

I’ve long said that the only way to have a consistent five-member conservative majority is with seven Republican-appointed justices. Six will not be enough. For the foreseeable future, Roberts will need Kavanaugh to make a five member voting bloc. Stated differently, unless Gorsuch can persuade Kavanaugh, then Kavanaugh will stick with the Chief. And, we know all too well, that Gorsuch makes no effort to bring people to his side. He throws bombs and rejects any efforts of moderation. In Torres, Gorsuch charged the majority with virtue signaling:

If efficiency cannot explain today’s decision, what’s left? Maybe it is an impulse that individuals like Ms. Torres should be able to sue for damages. Sometimes police shootings are justified, but other times they cry out for a remedy. The majority seems to give voice to this sentiment when it disparages the traditional possession rule as “artificial” and promotes its alternative as more sensitive to “personal security” and “new” policing realities.

Indeed, Kavanaugh will join the Chief, even where originalism is at play. And those joins are troubling. Kavanaugh talks the originalist talk, but has not convinced me he will walk the walk. Consider this passage in Torres:

As noted, our precedent protects “that degree of privacy against government that existed when the Fourth Amendment was adopted,” Kyllo v. United States, 533 U. S. 27, 34 (2001)—a protection that extends to “[s]ubtler and more far-reaching means of invading privacy” adopted only later, Olmstead v. United States, 277 U. S. 438, 473 (1928) (Brandeis, J., dissenting). There is nothing subtle about a bullet, but the Fourth Amendment preserves personal security with respect to methods of apprehension old and new.

The Chief cites Scalia, but follows Brandeis. Scalia’s opinion in Jones sought to bring back Olmstead and the trespass theory. And Kavanaugh tagged along for the ride. Talk the talk, but won’t walk the walk.

Gorsuch returned fire with force:

But tasked only with applying the Constitution’s terms, we have no authority to posit penumbras of “privacy” and”personal security” and devise whatever rules we think might best serve the Amendment’s “essence.”

During Justice Kavanaugh’s confirmation hearing, he hedged about whether he was an originalist. Gorsuch accepted the label without hesitation. As did Barrett. And since Kavanaugh has joined the Court, he has consistently declined to join Justices Thomas and Gorsuch’s separate writings that challenge longstanding doctrine on originalist ground. Kavanaugh have shown some originalist flashes of light with respect to the administrative state and the Second Amendment. But I agree with Mike Rappaport: “Justice Kavanaugh’s originalism is by no means proven.”

From my vantage point, Kavanaugh is more of an institutionalist than an originalist. Consider his line of questioning in Cedar Point Nursery v. Hassid. Kavanaugh was not really concerned about what types of property rights existed at common law–the type of inquiry Justice Scalia flagged in Lucas. Rather, he was fixated on NLRB v. Babcock & Wilcox Co. (1956). This Warren Court decision by Justice Reed was in no sense an originalist decision. The case didn’t even concern the Takings Clause. Yet Kavanaugh saw Babcock as a compromise position that could unite the Court. And an easy, 9-0 decision mattered more than recovering the original meaning of the Takings Clause. Indeed, that proffer of compromise drew praise from Linda Greenhouse. (Greenhouse also offered some adulation for ACB). I suspect my co-blogger Ilya Somin is correct, and no other Justice will go down the Reed Road. But why does Kavanaugh consistently feel the need to strike these far-flung compromises, rather than pursue the original meaning of the Constitution? His priorities are to precedent and institutionalism first, and originalism second.

Likewise, in Ford, Kavanaugh didn’t express any interest about whether International Shoe is correct as an original matter. He simply went along with Justice Kagan’s “gloss.” I completely agree with Justice Gorsuch’s admonition in Ford Motor Co.: “Seeking to understand the Constitution’s original meaning is part of our job.” And that job is unflagging.

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The case is today’s Sixth Circuit decision in Meriwether v. Hartop, written by Judge Amul Thapar and joined by Judges David McKeague and Joan Larsen. There are a lot of moving parts here, so let me go through them one by one.

[A.] First, the facts: Shawnee State University had a policy requiring that students “refer to students by their ‘preferred pronoun[s].'” Prof. Nicholas Meriwether disagreed, and “proposed a compromise: He would keep using pronouns to address most students in class but would refer to Doe [a transgender student in his class] using only Doe’s last name.” The University at first agreed, but then changed its mind.

The University also refused another proposed compromise that Meriwether offered: “allow him to use students’ preferred pronouns but place a disclaimer in his syllabus ‘noting that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity.” The Dean “insisted that putting a disclaimer in the syllabus would itself violate the university’s gender identity policy.”

Meriwether sued, and the Sixth Circuit allowed his case to go forward; but because of the particular facts, the court did not decide whether a professor could insist on actually using a pronoun that didn’t match the student’s preferred pronoun. Rather, the court only considered whether a professor could decline to use the student’s preferred pronoun.

[B.] Now, the background legal rule: Generally speaking the government may discipline (including firing) an employee based on the employee’s speech if

1. the speech is not said by the employee as part of the employee’s job duties, Garcetti v. Ceballos (2006), or
2. the speech is on a matter of purely private concern, Connick v. Myers (1983), or
3. the damage caused by the speech to the efficiency of the government agency’s operation outweighs the value of the speech to the employee and the public, Pickering v. Board of Ed. (1968).

This is quite different from the rules for criminal or civil liability for speech. Speech doesn’t usually lose First Amendment protection, for instance, just because it’s on a matter of purely private concern. Likewise, courts generally don’t do case-by-case balancing of the value of speech against the harm that the speech causes. But when the government is acting as employer, it has a great deal of extra authority, especially over how its employees treat the government’s clients and more generally over how they do their jobs.

[C.] But there have also been lots of cases that say that academic employment is different from other forms of employment, and this is what happened here.

[1.] The court followed earlier decisions by the Fourth and Ninth Circuit (and an implicit decision of the Fifth Circuit) in holding that the Garcetti no-protection-for-speech-within-job-duties doctrine doesn’t apply to public university teaching:

[Garcetti] expressly declined to address whether its analysis would apply “to a case involving speech related to scholarship or teaching.” See also Adams v. Trs. of the Univ. of N.C.-Wilmington (4th Cir. 2011) (“The plain language of Garcetti thus explicitly left open the question of whether its principles apply in the academic genre where issues of ‘scholarship or teaching’ are in play.”). [And the Court’s earlier decisions] have “long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” …

If professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity. A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as “comrades.” That cannot be. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe” such orthodoxy….

Remember, too, that the university’s position on titles and pronouns goes both ways. By defendants’ logic, a university could likewise prohibit professors from addressing university students by their preferred gender pronouns—no matter the professors’ own views. And it could even impose such a restriction while denying professors the ability to explain to students why they were doing so. But that’s simply not the case. Without sufficient justification, the state cannot wield its authority to categorically silence dissenting viewpoints.

[T]he academic-freedom exception to Garcetti covers all classroom speech related to matters of public concern, whether that speech is germane to the contents of the lecture or not. The need for the free exchange of ideas in the college classroom is unlike that in other public workplace settings. And a professor’s in-class speech to his students is anything but speech by an ordinary government employee.

Indeed, in the college classroom there are three critical interests at stake (all supporting robust speech protection): (1) the students’ interest in receiving informed opinion, (2) the professor’s right to disseminate his own opinion, and (3) the public’s interest in exposing our future leaders to different viewpoints. Because the First Amendment “must always be applied ‘in light of the special characteristics of the … environment’ in the particular case,” public universities do not have a license to act as classroom thought police. They cannot force professors to avoid controversial viewpoints altogether in deference to a state-mandated orthodoxy. Otherwise, our public universities could transform the next generation of leaders into “closed-circuit recipients of only that which the State chooses to communicate.” Thus, “what constitutes a matter of public concern and what raises academic freedom concerns is of essentially the same character.”

Of course, some classroom speech falls outside the exception: A university might, for example, require teachers to call roll at the start of class, and that type of non-ideological ministerial task would not be protected by the First Amendment. Shawnee State says that the rule at issue is similarly ministerial.

But as we discuss below, titles and pronouns carry a message. The university recognizes that and wants its professors to use pronouns to communicate a message: People can have a gender identity inconsistent with their sex at birth. But Meriwether does not agree with that message, and he does not want to communicate it to his students. That’s not a matter of classroom management; that’s a matter of academic speech….

[2.] The court then held that the speech here was on a matter of “public concern”:

When speech relates “to any matter of political, social, or other concern to the community,” it addresses a matter of public concern. Thus, a teacher’s in-class speech about “race, gender, and power conflicts” addresses matters of public concern. A basketball coach using racial epithets to motivate his players does not. “The linchpin of the inquiry is, thus, for both public concern and academic freedom, the extent to which the speech advances an idea transcending personal interest or opinion which impacts our social and/or political lives.”

Meriwether did just that in refusing to use gender-identity-based pronouns. And the “point of his speech” (or his refusal to speak in a particular manner) was to convey a message. Taken in context, his speech “concerns a struggle over the social control of language in a crucial debate about the nature and foundation, or indeed real existence, of the sexes. That is, his mode of address was the message. It reflected his conviction that one’s sex cannot be changed, a topic which has been in the news on many occasions and “has become an issue of contentious political … debate.” …

Never before have titles and pronouns been scrutinized as closely as they are today for their power to validate—or invalidate—someone’s perceived sex or gender identity. Meriwether took a side in that debate. Through his continued refusal to address Doe as a woman, he advanced a viewpoint on gender identity. Meriwether’s speech manifested his belief that “sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual’s feelings or desires.” The “focus,” “point,” “intent,” and “communicative purpose” of the speech in question was a matter of public concern.

And even the university appears to think this pronoun debate is a hot issue. Otherwise, why would it forbid Meriwether from explaining his “personal and religious beliefs about gender identity” in his syllabus? No one contests that what Meriwether proposed to put in his syllabus involved a matter of public concern….

[3.] Finally, the court held that the Pickering balance tipped in favor of protection for Meriwether’s speech, again because of the academic freedom context:

Start with Meriwether’s interests. We begin with “the robust tradition of academic freedom in our nation’s post-secondary schools.” That tradition alone offers a strong reason to protect Professor Meriwether’s speech. After all, academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” And the First Amendment interests are especially strong here because Meriwether’s speech also relates to his core religious and philosophical beliefs. Finally, this case implicates an additional element: potentially compelled speech on a matter of public concern. And “[w]hen speech is compelled … additional damage is done.”

Those interests are powerful. Here, the university refused even to permit Meriwether to comply with its pronoun mandate while expressing his personal convictions in a syllabus disclaimer. That ban is anathema to the principles underlying the First Amendment, as the “proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.'” Indeed, the premise that gender identity is an idea “embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view.”

And this is particularly true in the context of the college classroom, where students’ interest in hearing even contrarian views is also at stake. “Teachers and students must always remain free to inquire, to study and to evaluate, [and] to gain new maturity and understanding.”

On the other side of the ledger, Shawnee State argues that it has a compelling interest in stopping discrimination against transgender students. It relies on EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (6th Cir. 2018) in support of this proposition. But Harris does not resolve this case. There, a panel of our court held that an employer violates Title VII when it takes an adverse employment action based on an employee’s transgender status.

The panel did not hold—and indeed, consistent with the First Amendment, could not have held—that the government always has a compelling interest in regulating employees’ speech on matters of public concern. Doing so would reduce Pickering to a shell. And it would allow universities to discipline professors, students, and staff any time their speech might cause offense. That is not the law. See Street v. New York (1969) (“[T]he public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”). Purportedly neutral non-discrimination policies cannot be used to transform institutions of higher learning into “enclaves of totalitarianism.”

Turning to the facts, the university’s interest in punishing Meriwether’s speech is comparatively weak. When the university demanded that Meriwether refer to Doe using female pronouns, Meriwether proposed a compromise: He would call on Doe using Doe’s last name alone. That seemed like a win-win. Meriwether would not have to violate his religious beliefs, and Doe would not be referred to using pronouns Doe finds offensive. Thus, on the allegations in this complaint, it is hard to see how this would have “create[d] a hostile learning environment that ultimately thwarts the academic process.”

It is telling that Dean Milliken at first approved this proposal. And when Meriwether employed this accommodation throughout the semester, Doe was an active participant in class and ultimately received a high grade.

As we stated in Hardy, “a school’s interest in limiting a teacher’s speech is not great when those public statements ‘are neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.'” The mere “fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” At this stage of the litigation, there is no suggestion that Meriwether’s speech inhibited his duties in the classroom, hampered the operation of the school, or denied Doe any educational benefits. Without such a showing, the school’s actions “mandate[] orthodoxy, not anti-discrimination,” and ignore the fact that “[t]olerance is a two-way street.” Thus, the Pickering balance strongly favors Meriwether.

Finally, Shawnee State and the intervenors argue that Title IX compels a contrary result. We disagree. Title IX prohibits “discrimination under any education program or activity” based on sex. The requirement “that the discrimination occur ‘under any education program or activity’ suggests that the behavior [must] be serious enough to have the systemic effect of denying the victim equal access to an educational program or activity.”

But Meriwether’s decision not to refer to Doe using feminine pronouns did not have any such effect. As we have already explained, there is no indication at this stage of the litigation that Meriwether’s speech inhibited Doe’s education or ability to succeed in the classroom. Bauer even admitted that Meriwether’s conduct “was not so severe and pervasive that it created a hostile educational environment.” Thus, Shawnee State’s purported interest in complying with Title IX is not implicated by Meriwether’s decision to refer to Doe by name rather than Doe’s preferred pronouns.

[D.] The panel also allowed Meriwether’s Free Exercise Clause to go forward, based on the allegations that “officials at Shawnee State exhibited hostility to his religious beliefs” and that “irregularities in the university’s adjudication and investigation processes permit a plausible inference of non-neutrality.” That part of the opinion also discussed an interesting factual twist:

[T]he university argues that Meriwether simply could have complied with the alternative it offered him: Don’t use any pronouns or sex-based terms at all. This offer, the university says, would not violate Meriwether’s religious beliefs. But such an offer has two problems. First, it would prohibit Meriwether from speaking in accordance with his belief that sex and gender are conclusively linked. And second, such a system would be impossible to comply with, especially in a class heavy on discussion and debate. No “Mr.” or “Ms.” No “yes sir” or “no ma’am.” No “he said” or “she said.” And when Meriwether slipped up, which he inevitably would (especially after using these titles for twenty-five years), he could face discipline. Our rights do not hinge on such a precarious balance.

The effect of this Hobson’s Choice is that Meriwether must adhere to the university’s orthodoxy (or face punishment). This is coercion, at the very least of the indirect sort. And we know the Free Exercise Clause protects against both direct and indirect coercion.

[E.] So there are several important conclusions and implications here, it seems to me:

1. The case provides further support for the view that the First Amendment potentially protects public university professors’ teaching decisions (at least in some situations).
2. Under the court’s reasoning, the First Amendment would even more clearly protect against liability imposed by the government as sovereign (e.g., through the civil liability system or through administrative fines)—for instance, in the New York City rules I discussed here—rather than just as employer.
3. Much of the language in the opinion will also be used to support other kinds of academic freedom claims, for instance based on faculty research, faculty outside writing (from Tweets to blog posts to op-eds), and university student speech.
4. But whether a university may forbid faculty members from referring to students using the pronoun that the student rejects remains an open question. This case only deals with faculty members declining to use the pronoun the student prefers, and using the student’s name instead.

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After the 2017 mass shooting in Las Vegas, President Donald Trump vowed to use executive power to ban bump stocks, a type of firearm accessory that the shooter reportedly used. The Department of Justice carried out Trump’s wishes in 2018 by issuing a new Bureau of Alcohol, Tobacco, Firearms and Explosives rule “to clarify that [bump stocks] are ‘machineguns’ as defined by the National Firearms Act of 1934 and the Gun Control Act of 1968” because “such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.” Put differently, the federal government began to reinterpret the federal ban on machine guns to ban bump stocks too.

That unilateral executive action was promptly challenged in federal court. As part of its defense, the federal government invoked Chevron deference, a controversial legal doctrine which says that when the judiciary is confronted with an “ambiguous” statute, the default position is for the presiding judge to defer to the “reasonable” statutory interpretation favored by the federal agency charged with enforcing that statute.

In a bombshell ruling delivered this week, the U.S. Court of Appeals for the 6th Circuit not only denied Chevron deference to Trump’s bump stock ban, but held that “Chevron deference categorically does not apply” in the criminal law context. The 6th Circuit then took its own look at the text of the federal machine gun ban and decided that “a bump stock does not fall within the statutory definition of a machine gun.” In sum, Trump’s attempt to impose gun control via executive fiat lost big.

“It is not the role of the executive—particularly the unelected administrative state—to dictate” the terms of criminal law, the 6th Circuit maintained. “Granting the executive the right both to determine a criminal statute’s meaning and to enforce that same criminal statute poses a severe risk to individual liberty.” According to the 6th Circuit, that risk is one of the reasons why judges have no business tipping the scales in favor of the executive in such cases. “Entrusting the interpretation of criminal laws to the judiciary, and not the executive,” the court said, “mitigates that risk and protects against any potential abuses of government power.”

This case began life as Gun Owners of America, Inc. v. Barr, reflecting the fact that Trump’s attorney general held the reins at the DOJ at the time. It is now known as Gun Owners of America, Inc. v. Garland, reflecting both the change in presidential administrations and the fact that the Biden Justice Department is now the one defending Trump’s sweeping use of executive power.

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

New on the Short Circuit podcast: Mike Masnick of Techdirt sets the record straight on Section 230. Plus: when the government flies a drone over your house and takes photos, is that a search?

• Tennessee man and his mom participate in the January 6th incident at the Capitol, sporting tactical vests and (in the man’s case) carrying a holstered taser. They enter the Capitol through an open door, pass police officers standing nearby, and see a few sets of zip ties that they snag. They roam the Capitol for about 12 minutes, including entering the Senate gallery, and then leave, apologizing to police on the way out. They vandalize nothing and commit no violence. Should they be held in jail pending trial? D.C. Circuit: Only if they pose an articulable threat to the community, which the district court hasn’t adequately considered and ought to on remand.
• Lawyer in Queens falsifies some 100 asylum applications, so federal prosecutors charge her with asylum fraud. They also—because it is the specific policy of the United States Department of Justice to stack as many charges as possible—separately charge her with lying to the government and with identity theft, even though she did not, in any normal sense, steal anyone’s identity. Second Circuit: Convictions affirmed. Concurrence: The stacking seems unfair, though.
• Practice tip: If the Third Circuit publishes redlines of your briefs, you are probably screwed.
• Local governments enjoy immunity from antitrust damages, but is a public hospital that operates in 47 locations across two (soon to be three!) states really a “local” anything? ‘Tis, says the Fourth Circuit.
• Forward-thinking Jean-Noel Frydman bought and registered France.com in 1994, using it as a platform for his business’s (also called France.com) France-related travel services. Following litigation in Paris’s Tribunal de Grande Instance and Cour d’Appel, the domain name is transferred to the French Republic—or, more specifically, to Jean-Yves Le Drian, the Republic’s Minister for Europe and Foreign Affairs. France.com (the business) sues France (the country) in the Eastern District of Virginia, claiming cybersquatting, trademark infringement, and more. District court: Much as it did during its last visit to the E.D. Va., France wins. Fourth Circuit: Correct; France is immune under the Foreign Sovereign Immunities Act.
• After an employee of the Texas Alcoholic Beverage Commission expressed concern that the Chairman’s stock holdings might pose a conflict of interest, the employee was liquidated. Fifth Circuit: The employee only knew about the potential conflict because of her job with the Commission, so she was speaking as an employee and not a citizen. No First Amendment problem there.
• After fellow inmates at Coffee County, Tenn. jail caused their toilets to overflow, a detainee spent several days in a cell contaminated with urine and feces. Sixth Circuit: The detainee has sued the county, but this is not the county’s mess.
• Following the 2017 Las Vegas shooting, in which 58 were killed and more than 500 injured by a gunman firing weapons equipped with bump stocks, President Trump ordered DOJ to propose rules banning the devices. The following year, DOJ published a rule classifying bump stocks as prohibited machine guns. Sixth Circuit: But they’re wrong, and we owe no deference to their interpretation of a criminal statute. Dissent: Doesn’t matter that the law is criminal, we still owe deference.
• “In competition a bruised (corporate) ego should be dealt with by hiring an advertising agency, not by hiring a lawyer.” And with that, the Seventh Circuit denies relief to a manufacturer of standing desks that brought a defamation suit against a competitor who said plaintiff’s desks were excessively lubricated.
• During a normal controlled buy, police ask an informant to buy drugs from a suspect. But what if the informant instead enlists an unwitting third party to buy the drugs? Does that make the controlled buy a less reliable basis to authorize a search? Seventh Circuit: No, at least not where police saw the third party enter the apartment and come out with drugs.
• When an officer responding to an armed robbery called for backup, no backup ever arrived—allegedly leading to a case of PTSD. Seventh Circuit: While these allegations remind us of the dangers police officers face and the courage the job requires, they do not state a constitutional claim.
• Chicago SWAT team members take their gear home—like night-vision goggles and rifles—so that they can respond quickly if they receive a call while off-duty. But the city requires that they take the gear inside their house rather than leaving it in the car, a process they estimate takes fifteen minutes. Does the city need to pay them for that quarter hour? Seventh Circuit: No. (The opinion does not mention any in-chambers experiments to test that length of time.)
• Released from prison in 1986, man waits all of 30 minutes before robbing an Illinois bank. District court (1987): Life imprisonment. Seventh Circuit (1987) (Easterbrook, J.): Affirmed. Seventh Circuit (2021) (Easterbrook, J.): I’m still here, guy. And because you robbed the bank in 1986, you are ineligible to seek compassionate release under 18 U.S.C. § 3582(c)(1), which applies only to people whose crimes postdate October 31, 1987.
• Woman serving a 120-month term of imprisonment for manufacturing meth petitions for compassionate release, citing her susceptibility to COVID-19 and Legionnaires’ disease. District court: You were arrested after a meth lab was found in your kitchen, so home confinement is an unsuitable alternative to prison. Petition denied. Seventh Circuit: No abuse of discretion here.
• The University of Iowa admits that it violated the constitutional rights of a Christian student group by subjecting it to restrictions that it did not apply to other groups, but are the individual defendants entitled to qualified immunity? Eighth Circuit: Not on the free-speech and free-association claims, but yes on the free-exercise claim. Concurrence: No across the board. “The individual defendants may pick their poison: they are either plainly incompetent or they knowingly violated the Constitution. Either way, they should not get qualified immunity.”
• The Eighth Circuit has the case of a Minneapolis police officer whose driver’s license information was searched some 1,000 times by her fellow officers. (The opinion is vague on the details, but Wired reports that MPD officers were searching the license info of various women, sometimes in the middle of the night. There’s also an allegation about rejected romantic overtures.) Alas for the searchee, there were evidentiary problems below—as suggested by the jury over-punishing just two lookups with $300k in damages—so the department and last two defendant officers are getting a new trial.
• Having already held that there is no Second Amendment right to carry concealed weapons in public, the en banc Ninth Circuit considers whether there’s a right to open carry in public. Ninth Circuit: There is not. Dissent: 500 years of Anglo-American legal history begs to differ.
• Man prosecuted for robbery and various other crimes, but in which he only scored a total of seven dollars and a bottle of cologne, is held in jail pending trial unless he can make $350k in bail. Although cash bail is supposed to only be used sparingly on those likely to flee or who pose a risk to public safety and requires a judge to make an individualized assessment, the California Supreme Court recognizes “it’s a different story in practice.” As in the defendant’s case, it generally comes down to whether you can cough up the funds in a uniform bail schedule. The court declares the current practice unconstitutional, that cash bail should only be used in rare circumstances, and that the accused’s ability to pay must be taken into account.
• Long Lake Township, Mich. officials suspect property owners are illegally storing junk on their property again, but can’t check because of all the fences and trees. Hey, that’s no problem, because they have access to a drone which flies above the land several times taking photos which the township uses in a zoning enforcement action. After losing a suppression motion the property owners appeal and the Michigan Court of Appeals reverses. Distinguishing U.S. Supreme Court precedent on planes and helicopters hanging out above homes, it says drones can get closer and aren’t expected. A dissent says nice try, but I don’t think there’s a way around those cases.
• And in en banc news, the Ninth Circuit will not reconsider its earlier ruling striking down a 2018 Department of Homeland Security rule that strips asylum eligibility from all aliens arriving in the U.S. between designated ports of entry. Judge VanDyke issues a salty dissent, accusing the original panel of “judge-jitsu,” “chutzpah,” “ham-fisted[ness],” “mischief,” and “overt results-oriented judging.”

Michael Jones of North Carolina is a fan of drones, and, a few years back, he started up a drone photography business. Among other services, he’d take aerial photos of land (for developers, for example) and use software to create orthomosaic images of the property. Enter the North Carolina Surveying Board, which says communicating any location, elevation, or dimension data about land requires a full-blown surveyor license. So does using orthomosaic software. So does creating 3D digital models of land or buildings. A First Amendment problem? Here at IJ, we certainly think so. So we’ve teamed up with Michael and his company to sue the Board and vindicate the rights of all drone operators to create and sell useful information about land. Find more information here.

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As the Senate majority prepared to abolish the filibuster in order to advance its political agenda, a long-tenured member of the chamber issued a stern warning.

“We should make no mistake. This nuclear option is ultimately an example of the arrogance of power. It is a fundamental power-grab by the majority party,” then-Sen. Joe Biden (D–Del.) said during a speech delivered on May 23, 2005, from the Senate floor.

Calling it “the single most significant” vote he would cast in more than three decades as a member of the Senate, Biden admonished Republicans for trying to blow up the filibuster to get judicial nominees confirmed with a simple majority. “Folks who want to see this change want to eliminate one of the procedural mechanisms designed for the express purpose of guaranteeing individual rights and they also, as a consequence, would undermine the protections of the minority point of view in the heat of majority excess,” he said.

The times, they sure have changed.

During a Thursday press conference, now-President Joe Biden indicated publicly what he has reportedly been saying behind closed doors for a while: that the Senate’s filibuster rules should be changed—perhaps even abolished, allowing legislation to pass with a simple majority, though he continues to hedge on that point.

“It’s being abused in a gigantic way,” Biden said of the filibuster, before suggesting that the Senate ought to return to the pre-1971 rules that required senators to actually stand on the floor and speak if they wanted to prevent a vote on a bill.

But, moments later, Biden suggested that he’d be willing to go further if the Senate’s Republican minority blocks the passage of legislation—including a possible $3 trillion infrastructure bill, a gun control bill, and other progressive agenda items. “If there’s complete lockdown and chaos as a consequence of the filibuster, then we’ll have to go beyond what I’m talking about,” he said.

Far from being a procedural mechanism meant to protect individual rights and guard against the tyranny of the majority, Biden says he now agrees with former President Barack Obama that the Senate’s filibuster rules are “a relic of the Jim Crow era”—a line that has become the go-to explanation for progressives who would like to see the 60-vote requirement swept aside. (Obama, by the way, also defended the filibuster during the 2005 debate over the so-called nuclear option.)

But the history of the filibuster predates the Jim Crow era by several decades. In fact, the filibuster was accidentally invented by none other than America’s first political villain: Aaron Burr. As vice president in 1805, Burr suggested that the Senate abolish a rule that allowed a simple majority to cut off debate on a bill. That same rule—technically a “motion to previous question”—still exists in the House today. Without that rule, however, the Senate could not pass any bill until every senator agreed to move forward.

That’s an untenable arrangement for obvious reasons. The Senate used a variety of different mechanisms to stop debate and allow a vote over the years, but the current system of invoking “cloture”—the thing that requires 60 votes today, even though the number was originally higher—dates back to 1917.

The idea that the filibuster is a holdover from the Jim Crow era—an idea that is suddenly popping up all over left-wing politics and media—stems from the fact that filibusters were relatively rare until the past few decades. “It was used rarely and almost always for the purpose of blocking civil-rights bills,” explains New York magazine’s Jonathan Chait. “The filibuster exception to the general practice of majority rule was a product of an implicit understanding that the white North would grant the white South a veto on matters of white supremacy.”

There is no question that the filibuster has been wielded for racist purposes. Sen. Strom Thurmond (D–S.C.) spoke on the Senate floor for more than 24 hours—still the longest filibuster on record—in a failed attempt to block a final vote on the Civil Rights Act of 1957, for example. The bill passed anyway.

But the filibuster is better understood as the product of the Senate’s arcane procedural rules. As such, it is not inherently racist (and, by extension, abolishing it won’t make the Senate as an institution anti-racist). If it was used by racists to advance racist goals, the racists are to blame. Presidents have used the annual State of the Union address to advance all manner of terrible policy, but we rightfully blame them (and the Congress that eventually votes to enact such policies) and not the speech itself.

The debate over the filibuster, like all of the tedious debates over procedural mechanisms in legislative chambers, is really about power. That power can manifest itself in the perpetuation of racist and discriminatory systems, of course, but not exclusively.

“Short-term, pragmatic considerations almost always shape contests over reform of Senate rules,” Sarah Binder, a historian and senior fellow at the Brookings Institution, told the Senate Committee on Rules and Administration last year. She was referring to the history of the filibuster and its evolution over the decades, but the same lesson applies to what’s happening right now.

Today, the filibuster is also something of a scapegoat. As James Wallner, a senior fellow at the R Street Institute, wrote for Reason in January, there are plenty of other ways for the minority to use the Senate’s rules to hold up legislation. Abolishing the filibuster will merely change the dynamics of this debate, but it won’t end it.

The better question to be asked is whether allowing the Senate to pass bills with a simple majority would improve government. Considering that Democrats are trying to shove it out of the way to speed through questionably constitutional gun control bills and even more spending, it’s difficult for anyone who believes in limited government to cheer the filibuster’s potential demise. But this is a debate that requires clarity, not misplaced accusations of racism.

For what it’s worth, Biden and the Democratic minority won the debate over the filibuster in 2005. A bipartisan group of senators—the Gang of 14 led by then-Sens. John McCain (R–Ariz.) and Ben Nelson (D–Neb.)—reached a deal in which the Republican members agreed not to deploy the nuclear option while Democratic members agreed not to block confirmation votes for future judicial nominees.

It was an agreement that held up until 2013, when Democrats nuked the judicial filibuster to push through some of Obama’s picks. When Republicans retook control of the Senate in 2014, they happily used the new rules to push through dozens of conservative appointees to the federal bench—something that Democrats and progressives now routinely complain about.

There’s a lesson here for Democrats in 2021. Nuking the legislative filibuster—especially when you have a majority so slim that a single election could flip control of the Senate back to the GOP—seems like a decision Democrats will regret sooner rather than later.

It’s a lesson Biden should know well.

“Whenever you’re in the majority, it’s frustrating to see the other side block a bill or a nominee you support. I’ve walked in your shoes. And I get it,” Biden said in that same 2005 speech. “There’s one thing I’ve learned in my years here. Once you change the rules and surrender the Senate’s institutional power, you never get it back.”

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