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

Friends, Season 2 of Bound By Oath, “No Right Without a Remedy,” commenced this very week. It is a very excellent podcast. We know because we made it.

• Martin Van Buren, an employee of D.C.’s Metro transit system, grows angry after a fellow employee helps a customer operate a fare card machine in Arlington, Va.—and thus beats his colleague so badly he required hospitalization. Yes, you read that right. D.C. Circuit: The injured employee must look to Virginia’s workers compensation law for a remedy.
• Fifteen-year-old gang member participates in the execution-style killing of four teenage members of a rival gang. The district court, departing downwards from federal sentencing guidelines, sentences the juvenile to 55 years in prison with no possibility of parole. Second Circuit: We assume, without deciding, that the lengthy sentence here (which technically falls short of a life sentence) requires consideration of the factors the Supreme Court has identified as relevant when sentencing juveniles to life without parole. We also note that allowing eligibility for parole would encourage rehabilitation and facilitate prison discipline. Still, given the brutality of the offense, the sentence is affirmed.
• The Oneida Indian Nation once occupied over 6 million acres of land in an area that would later become New York State. The U.S. recognized 300k acres of that land as a reservation in the 1794 Treaty of Canandaigua. A series of treaties further selling and dividing the land followed, leading to an ownership dispute over a nearly 20-acre parcel between the Nation and a member of the Nation who has attempted to create a separate tribe on several occasions. The Second Circuit rules for the Nation, featuring a debate between the majority and concurrence over whether tribal sovereign immunity affects a federal court’s jurisdiction.
• After being denied Social Security disability benefits, two disappointed applicants take their cases to federal court. Yowzer! While their cases are pending, the Supreme Court decides that all of the Administrative Law Judges employed by the Securities Exchange Commission have been unconstitutionally appointed. Can the applicants raise the same argument against the ALJs at the Social Security Administration? Fourth Circuit: Indeed they can; no need to have raised it at the administrative level.
• Allegation: Unarmed, mentally ill man flees from Gretna, La. police, curls up into a fetal position. They pin him down, making it impossible to comply with their commands. They tase him repeatedly and strike him in face, back, scrotum, and testes as he pleads for his mother. He dies. Fifth Circuit: No qualified immunity for two officers who administered the beating, but several other officers who failed to intervene are off the hook.
• Following the release of secretly recorded videos showing abortion providers discussing making fetal tissue available to researchers, Texas deems several abortion providers “not qualified” to provide services, terminates them from participating in Medicaid. Overruling a 2017 panel decision, the en banc Fifth Circuit holds that people who received or sought services from the providers do not have standing to challenge the state’s determination that the providers are not qualified.
• Chicago man convicted of double murder receives a new trial, leading to his acquittal. He subsequently sues police and the city for fabricating evidence. After his first trial ends in a mistrial and his second ends with a verdict for $80k, he asks for and receives a third trial. The jury returns a verdict for $22 million. Seventh Circuit: Good for him. Dissent: There were no grounds for the third trial.
• Allegation: Seeking to question guest at Blaine, Wash. bed-and-breakfast, CBP agent enters the driveway, ignores the owner’s request that he leave, and then shoves the owner to the ground. (Turns out the guest is in the country legally.) When the owner complains to his superiors, the agent retaliates by, among other things, trying to get the IRS to investigate the owner. Ninth Circuit: It’s well-established that you can sue federal officers for excessive force. And, though there’s no precedent saying you can sue officers for retaliating as the agent did, there’s no reason not to allow that claim to proceed either. Case un-dismissed.
• Per court order, guards at Pelican Bay prison in California conduct welfare checks every half hour around the clock. Allegation: And create far more noise than necessary, depriving inmate of sleep at night. Ninth Circuit (over a dissent): It’s clearly established that sleep deprivation via constant illumination is unconstitutional, but there’s no precedent about excessive noise arising from compliance with court-ordered welfare checks. Nor do we establish it here.
• San Francisco police officer spies a car with no plates parked at a gas pump. Unable to approach the driver’s side, he walks up to the passenger’s side, opens the door, and leans in to talk to the driver. Upon discovering that the driver has a suspended license, the officer arrests the driver, and an inventory search of the car turns up a handgun. The driver is convicted of being a felon in possession. Ninth Circuit: But opening the door and leaning into the car violated the Fourth Amendment, so the evidence is excluded. And although we would normally consider this argument forfeited, having been raised only in a footnote before the trial court, the gov’t forfeited its forfeiture objection.
• And in en banc news, the Ninth Circuit will not revisit its earlier conclusion that a California resident—who is now the husband of a U.S. citizen—can seek to overturn a 1998 deportation order on the ground that the conviction on which it was based (involving facts that occurred in 1988, when the gentleman was 14 years old) was expunged over twenty years ago. Twelve judges dissent from denial, arguing that the decision gives rise to an 8-1 circuit split and is contrary to the unambiguous text of the statute.

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We are about to enter the ninth month of our COVID world. In many regards, time feels like it is standing still. Every day has a monotony like the one before. Yet, these past nine months have been a time of radical growth and transformation in ways that we really do not appreciate. Things that I thought were really important turned out to be unimportant. Things that I thought were impossible turned out to be quite easy. And things I thought I could never do have become old habit.

Perhaps my most profound lesson during this entire time is to never doubt the human capacity to evolve to meet new challenges. And I think this lesson has extended to higher education. At the outset of the pandemic, I was quite pessimistic about the ability of universities in general, and law schools in general, to cope with the pandemic. This skepticism was borne of my observations over the past decade: legal academia is a conservative (lowercase c) institution that evolves at a glacial pace. I did not think administrations and professors could move with enough agility to adapt to constantly-changing circumstances. I looked to elite institutions like Harvard Law School, which shut down entirely, as the canary in the kale mine: if HLS thinks it is too dangerous to stay open, how will less-prestigious schools stay open. And I also expected state and local governments to impose new draconian lockdown measures to shut down campuses.

I was wrong. Some universities preemptively shut down. In hindsight, those decisions may have been too rash. Other universities tried to open up, but failed miserably, and had to shut down. But the bulk of institutions opened up successfully, and stayed open throughout the semester.

Here, I can speak from personal experience. The South Texas College of Law Houston made it through the entire semester without any outbreaks. In a short period of time, we built several new classrooms to promote social distancing. We established elaborate protocols to ensure safety. And 1Ls were able to take the bulk of their classes in a “hybrid” model. We had very, very few positive cases, and almost all of them were off campus. I did not see any evidence of community spread in the building.  I commend my Dean, administration, colleagues, staff, and students for creating an entire online university in the span of months. It is truly remarkable what was accomplished in such a short time. For the spring, we are offering a larger number of upper-level classes on campus. And I suspect colleagues at other schools can tell similar success stories. There are also some colleagues who have some not-so-successful stories.

Moreover, the online model of learning became surprisingly normal–and effective. I have not yet graded exams, but my general sense is that students have roughly the same level of comprehension as in a normal semester. I feared there would be a huge disparity in retention, but that has not proven true. I also worried that there would be a serious burnout towards the end of the semester. I think concerns about “Zoom fatigue” are a bit exaggerated. Every year, I discern a drop in participation as the end of the semester nears. The late-term decline this year was no greater than usual. I resist the urge to blame the normal ebbs and flows of eduction on Zoom. The normal limitations of students exist, whether online or in person. Online education is not a perfect, or even a good substitute for in-person learning. But it has proven to be a far more effective substitute than I expected.

Yet, I recognize that online education has other costs. This year, I met with each of my students to review their midterms (over Zoom, of course). I would hold office hours on Saturdays and Sundays for much of October and November. In total, I spent about 20-30 minutes with each of my 100+ students. I found this time very effective, as it allowed me to forge a personal connection with a virtual student. I asked each student the same question: How is online education treating you? Consistently, students felt the lack of human connection. Chatting with classmates before class. Hanging out in the student lounge. Walking with a professor back to his office after class. These are interactions that Zoom can never, ever replace. Many students–especially those who lived alone–felt isolated and alone. (Students with families expressed the exact opposite problem, and worried that they could never get alone time!)

Eventually, law schools will be able to resume classes without social distancing requirements. A lecture hall that was built for 90 students will once again be able to seat 90 students. Will everything suddenly go back to “normal”? For many students, the answer is “YES!” Some of our students would be happy to never log onto Zoom ever again. Good luck with that. I think the legal practice will be forever transformed. Client meetings and court hearings will stay on Zoom, even after the pandemic passes.

For other students, however, the answer is not so clear. Part-time students, as well as commuter students, could benefit from having at least part of their education structured in a hybrid model. For example, I have some students that work from 9-5, then drive an hour downtown in rush hour, to begin four hours of class sessions. Other full-time students can have a 2+ hour commute each way. Perhaps, these students would be given the option to attend class in person two days a week, and attend hybrid classes two days a week.

I don’t see any reason to simply abandon all of the hard work done to improve hybrid education, given that there would be a serious demand. Students who want in-person learning only would get it. And students who want hybrid learning, and are willing to sacrifice the in-person interaction, would get it as well.

At the end of the spring 2020 semester (the infernal semester that would never end), I was pessimistic about the fall 2020 semester. But at the end of the fall 2020 semester, I am cautiously, and guardedly optimistic about the spring 2021 semester.

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My Psychedelic Love Story. Showtime. Sunday, November 29, 9 p.m.

“In order to use your head, you have to go out of your mind,” LSD guru Timothy Leary once told a reporter. It’s an aphorism that Joanna Harcourt-Smith, one of his many girlfriends, took to heart. After a whirlwind and drug-addled romance with Leary, she spent nearly four years trying to get him out of prison, lying and whoring and snitching and plotting murders and stinging his followers with fake drug deals in the process. Her reward was to get unceremoniously dumped almost immediately after he was released.

My Psychedelic Love Story is Harcourt-Smith’s nutty post-mortem torch song to Leary (he died in 1996, she last month) as well as a half-hearted attempt to settle some old feuds with her 1970s companions. It’s also a sign that that the celebrated documentarian Errol Morris, who adapted this documentary from a 2013 memoir by Harcourt-Smith, is as talented as ever—maybe more so—but also on the verge of becoming dangerously unhinged.

Morris is known for documentaries featuring penetrating investigations and incisive interviews. But his last one, Wormwood, an account of the death of a CIA germ warfare researcher who sailed out a window after being secretly dosed with LSD, was hugely speculative and dismayingly flighty. My Psychedelic Love Story wanders further and perhaps irretrievably down that path.

Only baby boomers—and perhaps few of them—are likely to recognize Harcourt-Smith, the documentary’s main subject. Hers was, for a brief interlude, a household name in the post-1960s counterculture as the handmaiden of Leary, a Harvard psychologist whose research into LSD turned him into a giddy Johnny Acidseed, spreading the good word about the drug while preaching his gospel of “turn on, tune in, drop out.” In 1972, she hooked up with him in Switzerland, where he was hiding out after escaping from a California prison with the aid of the Weather Underground and the Black Panthers.

Harcourt-Smith was barely aware of who Leary was when they first met. But the news that the FBI was after him titillated her (“I always wanted to be with an outlaw”), and she was certainly no stranger to drugs. Seeking political asylum for Leary (Switzerland had just warned him that he couldn’t stay there), they crisscrossed the continent for several weeks in a journey that, to hear Harcourt-Smith tell it, was right out of a Barbara Cartland novel: “We had traveled across Europe like shooting stars…plunging into the maddest romantic relationship you could ever imagine.” Well, maybe Cartland as translated by the editors at High Times. On the eight-hour drive from Switzerland to Austria alone, they imbibed a prodigious quantity of acid, snorted cocaine and smoked hash to “ballast the LSD,” then took Quaaludes washed down with aquavite for dessert.

Their journey ended in a truly hellish hangover. In Afghanistan, where they went because it had no extradition treaty with the United States, they were strong-armed onto a flight eventually ended back in California, where Leary was arrested for his escape from prison. Preposterously, he thought he’d be released on bail within a few days. He was surprised to learn that lots of judges consider prison escapees to be flight risks.

Facing more than three decades in possible prison sentences from old drug charges, Leary shocked his friends in the counterculture and the New Left by turning informer. Joanna, as she recounts with daft good cheer, enthusiastically joined in, wearing a wire for the Drug Enforcement Administration (DEA) to entrap Leary’s old friends and keeping his spirits up with detailed accounts of her profligate sex life outside the walls.

Even so, some of her most glorious exploits, disclosed previously to journalists, aren’t mentioned in My Psychedelic Love Story. She tried to seduce California Gov. Jerry Brown in hopes of winning Leary a pardon and nearly succeeded—at the seduction, not the pardon—and then did the same with U.S. Attorney General William Saxbe, with whom her wiles proved less alluring. Snapped Saxbe: “If I were your father, I’d spank you.”

This is a wildly entertaining, if often incoherent, tale. Even when she is idiotic, amoral, or nearly indecipherable—which is pretty often—Harcourt-Smith is a charming storyteller as she weaves the Leary story through a kaleidoscopic loop of Eurotrash adventures, from Gstaad and San Moritz to Paris and Hollywood, from arms traffickers to Anita van Pallenberg to the Rolling Stones to Francis Ford Coppola to George McGovern to Andy Warhol. Morris has enlivened her narrative by scattering it with throbbing day-glo colored graphics and old film clips— for instance, a scene of Sean Connery as James Bond, tied up as a laser ray advances toward his junk, inserted as Harcourt-Smith remembers a hostile interrogation by an arms-dealer boyfriend.

How much of her story is true is much harder to divine. Leary was a serial liar and fantasist—among other things he expected we would all be launched into space by the 1973 appearance of Comet Kahoutek—and Harcourt-Smith, as she chatters way for the cameras, boasts of many instances of doing the same. At times her muddled narrative departs from what she’s previously told of her life (though, admittedly, most of the major points are the same).

Even the avowed point of the film suggests what an unreliable narrator she is. In 1974, after it got out that Leary was spilling his guts to the DEA, his associates—who of course included hordes of dealers, not to mention political bandits like the Panthers and the Weathermen—were outraged. Many accused Harcourt-Smith of being some sort of Nixon administration Mata Hari who first led Leary into the hands of the cops, then seduced him into informing. There neither was nor is any evidence of that; Leary’s own letters and memoirs make it plain he was desperate to avoid spending the rest of the century in San Quentin.

But when she saw the lurid CIA fantasies in his last film, Harcourt-Smith tells Morris, it occurred to her that maybe they were right: “It’s while watching Wormwood that I said to myself, maybe I was a CIA  plant….Was I being manipulated, and if I was being manipulated, how far back did it go?”

That the Nixon administration, obsessed with its war on drugs, considered Leary Public Enemy No. 1 is beyond dispute. Morris has even found a clip from the White House tapes released during Watergate in which somebody, as Nixon rants about drugs, interjects a curse about “this guy Leary.” Retorts Nixon: “I’ve got room in the prison.” But Nixon had armies of cops, including the FBI and the DEA, to pursue Leary, who in any event made his own capture almost inevitable by being such a boob. Once, traveling in Europe with a squad of Black Panther security escorts, Leary nearly missed the plane because he wandered off to look at cameras in the duty-free store.

So there was no need for a deep-cover legion of CIA zombies to infiltrate Harcourt-Smith’s teenage life and induce her to boinking arms dealers—the episode, by her own account, that triggered her crossing of Ellberg’s path. And neither she nor Morris come up with even the slightest hint of CIA involvement. What they do manage to do, with their tales of duplicity, self-aggrandizement, and trivial hedonism, is to verify Jerry Rubin’s verdict when the news of Leary’s squealing broke: “This is the end of the ’60s.”

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In October, New York imposed strict requirements on houses of worship in so-called “microclusters.”

• In “Red” zones, houses of worship were limited to the lesser of 25% of maximum capacity, or 10 people. In virtually every house of worship, the 10 person limit controlled.
• In “Orange” zones, houses of worship were limited to the lesser of 33% of maximum capacity, or 25 people. In virtually every house of worship, the 25 person limit controlled.
• In “Yellow” zones, houses of worship did not have a hard capacity cap. Rather, they were subject to a 50% occupancy limit.

In Roman Catholic Diocese of Brooklyn v. Cuomo, the Court declared the 10- and 25-person caps unconstitutional with respect to the applicants. As things stand now, none of the applicants are in Red or Orange Zones. Some of the churches and synagogues are in Yellow zones.

I made an error in Part VI of my series. I wrote that the applicants would not be subject to any limitations. I was wrong. The houses of worship in yellow zones are still subject to the 50% maximum occupancy limit. And if New York City snaps to an Orange Zone, the houses of worship would become subject to the 33% maximum capacity cap. And, if any microclusters are placed in the Red Zone, the 25% cap would remain. The applicants did not challenge the percentage caps, and the Supreme Court had no occasion to rule on them.

Now, all houses of worship in yellow zones are subject to the 50% cap. Indeed, my understanding is that houses of worship in “white” zone–that is, are not subject to a microcluster rule–are also subject to the 50% cap.

The Supreme Court’s injunction will stretch until the disposition of the certiorari grant. At this point, the Second Circuit’s proceedings will have no impact on the state of affairs in New York.

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The U.S. Court of Appeals for the Third Circuit roundly rejected the Trump campaign’s appeal in its effort to challenge the election results in Pennsylvania. Jude Stephanos Bibas wrote the opinion for the panel, which also included Judges Smith and Chagares.

The opinion is brief, and pulls no punches. Here is how it begins:

Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.

The Trump Presidential Campaign asserts that Pennsylvania’s 2020 election was unfair. But as lawyer Rudolph Giuliani stressed, the Campaign “doesn’t plead fraud. . . . [T]his is not a fraud case.” Mot. to Dismiss Hr’g Tr. 118:19–20, 137:18. Instead, it objects that Pennsylvania’s Secretary of State and some counties restricted poll watchers and let voters fix technical defects in their mail-in ballots. It offers nothing more. This case is not about whether those claims are true. Rather, the Campaign appeals on a very narrow ground: whether the District Court abused its discretion in not letting the Campaign amend its complaint a second time. It did not.

Most of the claims in the Second Amended Complaint boil down to issues of state law. But Pennsylvania law is willing to overlook many technical defects. It favors counting votes as long as there is no fraud. Indeed, the Campaign has already litigated and lost many of these issues in state courts.

The Campaign tries to repackage these state-law claims as unconstitutional discrimination. Yet its allegations are vague and conclusory. It never alleges that anyone treated the Trump campaign or Trump votes worse than it treated the Biden campaign or Biden votes. And federal law does not require poll watchers or specify how they may observe. It also says nothing about curing technical state-law errors in ballots. Each of these defects is fatal, and the proposed Second Amended Complaint does not fix them. So the District Court properly denied leave to amend again.

Nor does the Campaign deserve an injunction to undo Pennsylvania’s certification of its votes. The Campaign’s claims have no merit. The number of ballots it specifically challenges is far smaller than the roughly 81,000-vote margin of victory. And it never claims fraud or that any votes were cast by illegal voters. Plus, tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too. That remedy would be grossly disproportionate to the procedural challenges raised. So we deny the motion for an injunction pending appeal.

The opinion concludes:

Voters, not lawyers, choose the President. Ballots, not briefs, decide elections. The ballots here are governed by Pennsylvania election law. No federal law requires poll watchers or specifies  where they must live or how close they may stand when votes are counted. Nor does federal law govern whether to count ballots with minor state-law defects or let voters cure those defects. Those are all issues of state law, not ones that we can hear. And earlier lawsuits have rejected those claims.

Seeking to turn those state-law claims into federal ones, the Campaign claims discrimination. But its alchemy cannot transmute lead into gold. The Campaign never alleges that any ballot was fraudulent or cast by an illegal voter. It never alleges that any defendant treated the Trump campaign or its votes worse than it treated the Biden campaign or its votes. Calling something discrimination does not make it so. The Second Amended Complaint still suffers from these core defects, so granting leave to amend would have been futile.

And there is no basis to grant the unprecedented injunction sought here. First, for the reasons already given, the Campaign is unlikely to succeed on the merits. Second, it shows no irreparable harm, offering specific challenges to many fewer ballots than the roughly 81,000-vote margin of victory. Third, the Campaign is responsible for its delay and repetitive litigation. Finally, the public interest strongly favors finality, counting every lawful voter’s vote, and not disenfranchising millions of Pennsylvania voters who voted by mail. Plus, discarding those votes could disrupt every other election on the ballot.

We will thus affirm the District Court’s denial of leave to amend, and we deny an injunction pending appeal. The Campaign asked for a very fast briefing schedule, and we have granted its request. Because the Campaign wants us to move as fast as possible, we also deny oral argument. We grant all motions to file overlength responses, to file amicus briefs, and to supplement appendices. We deny all other outstanding motions as moot. This Court’s mandate shall issue at once.

For those who care about such things, Judge Bibas was among President Trump’s first nominees to the federal appellate bench. He is widely admired for his intellect and is generally considered quite conservative. A former law professor (most recently at the University of Pennsylvania, where he co-taught a seminar on conservative thought with Professor Amy Wax), he was regular speaker at Federalist Society events prior to his nomination. Judges Smith and Chagares were both appointed by President George W. Bush.

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No journalist is more relentlessly iconoclastic than Glenn Greenwald, who shared a 2014 Pulitzer Prize for his reporting on the Edward Snowden revelations.

Though unapologetically progressive, the 53-year-old former lawyer never shrinks from fighting with the left. A week before the 2020 election, he quit The Intercept, the online news organization he co-founded in 2014, because, by his own account, it refused to run a story unless he “remove[d] all sections critical of” Democratic presidential candidate Joe Biden. Denouncing what he called “the pathologies, illiberalism, and repressive mentality” that led him to be “censored” by his own media outlet, Greenwald railed that “these are the viruses that have contaminated virtually every mainstream center-left political organization, academic institution, and newsroom.”

Like a growing number of refugees from more-traditional news organizations, Greenwald took his talents to Substack, a platform for independent content creators to earn revenue directly from their audiences. He wasted no time lobbing grenades, posting stories and videos with titles like “No Matter the Liberal Metric Chosen, the Bush/Cheney Administration Was Far Worse Than Trump” and “The Three Greatest Dangers of Biden/Harris: Militarism, Corporatism and Censorship, All Fueled by Indifference.”

Nick Gillespie spoke with Greenwald via Zoom at Greenwald’s house in Brazil, where he lives with his husband, two children, and numerous dogs. Among other topics, they discussed what Greenwald sees as a generational fight playing out in newsrooms, the challenge identity politics poses to free expression, and whether a coalition of libertarians and progressives can effectively push non-interventionist foreign policy, lifestyle liberation, and an end to corporate subsidies during the Biden presidency.

Audio production by Ian Keyser.

Photo: Marcelo Chello/ZUMA Press/Newscom

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