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But Gorsuch!

When Donald Trump nominated Neil Gorsuch to the Supreme Court in January 2017, Demand Progress warned that the judge was “an extremist” who would “rubber stamp Trump’s assaults on Americans’ freedoms.” People for the American Way likewise described Gorsuch as “an ideological warrior who puts his own right-wing politics above the Constitution, the law and the rights of everyday people.” During Gorsuch’s confirmation hearings that March, Sen. Mazie Hirono (D–Hawaii) worried that “you rarely seem to find in favor of the little guy.”

Even before Gorsuch heard his first case as a Supreme Court justice in April 2017, it was clear from his decade on the U.S. Court of Appeals for the 10th Circuit that such attacks were unwarranted. Far from screwing over “the little guy” at every opportunity, he had shown unusual sensitivity to the predicament of vulnerable people confronted by implacable and frequently inscrutable agents of the state. “Among the folks that Trump had on his short list,” observes the Ohio State University law professor Douglas Berman, “Gorsuch seemed more defendant-friendly than most of the others,” and “that’s carried over to the Supreme Court.”

During Gorsuch’s first two terms on the Court, he took positions that should be applauded by people who care about criminal justice and civil liberties, including the critics who were so quick to condemn him as a heartless authoritarian. Except for capital cases, where “he doesn’t seem to have much of an affinity for the defense position,” Berman says, Gorsuch is “distinctly concerned about safeguarding defendants’ procedural rights.” While judges across the spectrum have long been willing to compromise civil liberties in cases involving unpopular defendants such as drug dealers and sex offenders, Berman notes, “Gorsuch has, to his credit, said, ‘No, no. The rules are the rules.'” His work shows that an honest attempt to apply the “original public understanding” of constitutional provisions frequently yields libertarian results, limiting government power and protecting individual rights.

That’s not to say Gorsuch himself is a libertarian. In his 2006 book on assisted suicide, he explicitly rejected the “libertarian principle” that would require legalization of that practice. The same principle, he argued, would also require the government to allow “any act of consensual homicide,” including “sadomasochist killings, mass suicide pacts…duels, and the sale of one’s life (not to mention the use of now illicit drugs, prostitution, or the sale of one’s organs).” If the government lets people kill themselves, in other words, it might also have to let them smoke pot.

Nor do Gorsuch’s originalist methods always lead him to conclusions that libertarians like. Last June, for instance, the Supreme Court overturned a Tennessee law that required people to live in the state for at least two years before applying for a license to sell liquor. Seven members of the Court deemed that protectionist policy inconsistent with the Commerce Clause, which was supposed to prevent interstate trade barriers. Gorsuch—joined by Justice Clarence Thomas, another originalist—dissented, arguing that such residence requirements have a long history in the United States and exemplify the sort of state policies that were protected by federal statute before Prohibition and by the 21st Amendment afterward.

On the whole, however, “Gorsuch appears to be on his way to being the most libertarian justice we’ve had on the Court in some time,” says Case Western Reserve University law professor and Volokh Conspiracy blogger Jonathan Adler. And on several issues that progressives in particular care about, such as privacy, due process, and police abuse, Gorsuch has been notably less deferential than the other conservative justices, with whom he has repeatedly parted company. “He’s someone who takes express constitutional guarantees very seriously,” Adler says, “even where they might conflict with what we would expect a conservative to want.”

For the president’s opponents, “But Gorsuch!” is a gibe aimed at conservatives who cite the nomination as vindication of their support for Trump. But for libertarians, there is an element of truth to that line of defense: While Gorsuch may not be the saving grace of the Trump administration, he is far more inclined to question authority and defend “the rights of everyday people” than the man who picked him.

‘What’s Left of the Fourth Amendment?’

Gorsuch’s commitment to enforcing the Fourth Amendment’s ban on “unreasonable searches and seizures” is one of the clearest ways in which his record belies progressives’ claims that he tends to approve “assaults on Americans’ freedoms.”

On the 10th Circuit, Gorsuch wrote the majority opinion in the 2016 case United States v. Ackerman, which held that the National Center for Missing and Exploited Children conducted a search within the meaning of the Fourth Amendment, which generally requires a warrant, when it opened an email forwarded by AOL that contained child pornography. He concluded that the organization, which has special duties and privileges under federal law, qualified as a “governmental actor,” or at least the government’s agent. Just as important, he thought it clear that email should be treated as “papers” or “effects” protected by the Fourth Amendment.

“Of course, the framers were concerned with the protection of physical rather than virtual correspondence,” Gorsuch wrote. “But a more obvious analogy from principle to new technology is hard to imagine and, indeed, many courts have already applied the common law’s ancient trespass to chattels doctrine to electronic, not just written, communications.”

Also in 2016, Gorsuch dissented from the 10th Circuit’s decision in United States v. Carloss, which held that police did not violate the Fourth Amendment when they ignored several “No Trespassing” signs on the way to a “knock and talk” at a home where they ultimately discovered methamphetamine labs. The government, he wrote, seemed worried that “if clearly posted No Trespassing signs can revoke the right of officers to enter a home’s curtilage, their job of ferreting out crime will become marginally more difficult.” He noted that “obedience to the Fourth Amendment always bears that cost and surely brings with it other benefits.” In any case, he said, “our job” is not “to weigh those costs and benefits but to apply the Amendment according to its terms and in light of its historical meaning.”

That is what Gorsuch thought the Supreme Court should have done in Carpenter v. United States, the 2018 decision that said police generally need a warrant to obtain cellphone location data. Gorsuch dissented, not because he disagreed with the result but because he objected to the majority’s reasoning.

The Court made an exception to the “third-party doctrine,” which says the Fourth Amendment does not apply to information that people voluntarily share with others, even when they do so with the understanding that it will be kept confidential. The majority held that, notwithstanding the third-party doctrine, people have a “reasonable expectation of privacy” in the information about their movements that cellphone companies collect while completing their calls. Gorsuch argued that both standards are misbegotten.

Amplifying the concerns raised by Justice Sonia Sotomayor in a 2012 case, Gorsuch said “the Court has never offered a persuasive justification” for the third-party doctrine, which it formulated in the 1970s. Like Sotomayor, he was dismayed by the doctrine’s implications in an age when people routinely store sensitive information on computers outside their homes.

“What’s left of the Fourth Amendment?” Gorsuch asked. “Today we use the Internet to do most everything. Smartphones make it easy to keep a calendar, correspond with friends, make calls, conduct banking, and even watch the game. Countless Internet companies maintain records about us and, increasingly, for us. Even our most private documents—those that, in other eras, we would have locked safely in a desk drawer or destroyed—now reside on third party servers.”

Nor did Gorsuch think that the “reasonable expectation test,” which derives from the 1967 case Katz v. United States, makes much sense, since it calls upon judges to determine which expectations are reasonable. “Katz has yielded an often unpredictable—and sometimes unbelievable—jurisprudence,” he wrote, citing cases in which the Court had upheld warrantless aerial surveillance of private property and warrantless rummaging through people’s trash.

Instead, Gorsuch advocated “a more traditional Fourth Amendment approach” that asks whether the thing to be searched qualifies as someone’s property. He noted that federal law treats cellphone location data as “customer proprietary network information,” which suggests the records belong to the customer and cannot be perused at will by the police.

Prove It

The Fourth Amendment is not the only area where Gorsuch has often sided with criminal defendants. Like Antonin Scalia, the justice he replaced, he is a stickler for requiring prosecutors to prove all the elements of a criminal offense.

In the 2015 case United States v. Makkar, Gorsuch wrote a 10th Circuit decision overturning the convictions of two convenience store owners who were accused of selling “incense” containing a synthetic cannabinoid. He noted that the law under which the defendants were charged, the Federal Analogue Act, required either proof that they knew they were selling a banned substance or proof that they knew the substance was “substantially similar” in its effects and in its chemical structure to a Schedule I or II drug. Prosecutors chose the latter route but did not even attempt to prove the second element, Gorsuch observed, and the jury instructions improperly relieved them of that burden.

In 2012, Gorsuch dissented when the full 10th Circuit declined to rehear a case, United States v. Games-Perez, in which a three-judge panel had rejected a defendant’s argument that he should not have been convicted of illegally possessing a firearm because he did not realize he had a felony record. Gorsuch thought that claim was plausible given what a judge had repeatedly told the defendant, Miguel Games-Perez, about the consequences of his deferred state sentence for attempted robbery. “People sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime,” Gorsuch wrote. “So Mr. Games-Perez will remain behind bars, without the opportunity to present to a jury his argument that he committed no crime at all under the law of the land.”

After joining the Supreme Court, Gorsuch further demonstrated his determination to uphold the rights of criminal defendants in cases involving the Sixth Amendment, which guarantees the right to trial by jury. This is another way in which Gorsuch has emulated Scalia, who played an important role in two landmark decisions establishing the principle that juries must determine facts that increase a defendant’s punishment beyond what would otherwise be authorized by statute. Those decisions made federal sentencing guidelines, which had previously required judges to increase penalties based on facts they determined, advisory rather than mandatory.

This year Gorsuch wrote the plurality opinion in United States v. Haymond, which involved a man who had been convicted of possessing child pornography and who, after serving more than three years in prison, was again caught with child pornography while on supervised release. That second offense, which was never considered by a jury, triggered a five-year mandatory minimum sentence. “In this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt,” Gorsuch wrote. “As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments.”

Gorsuch’s opinion was joined by three members of the Court’s liberal wing: Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Justice Stephen Breyer agreed with the judgment but wrote a separate concurring opinion to express concern about the decision’s potential impact on run-of-the-mill cases in which judges send people back to prison because they have violated the terms of their supervised release. Gorsuch’s fellow conservatives vociferously dissented.

Try, Try Again

In two Sixth Amendment cases that the Court declined to hear, Gorsuch, joined by Sotomayor both times, argued that the issues presented made them worthy of review. One case, Hester v. United States, posed the question of whether facts supporting court-ordered restitution in criminal cases also need to be determined by a jury. The other, Stuart v. Alabama, involved a woman who was convicted of drunk driving based on blood testing by an analyst who never appeared in court.

Given the “decisive role” that forensic evidence often plays in criminal cases, Gorsuch said when the Court declined to hear Stuart, it is vital that defendants have a full opportunity to challenge it. “The Constitution promises every person accused of a crime the right to confront his accusers,” he wrote. “That promise was broken here.” Scalia, who in 2009 wrote a majority opinion that said a defendant had a Sixth Amendment right to question the state laboratory analysts who tested a substance they determined to be “cocaine of a certain quantity,” probably would have agreed.

One of Gorsuch’s most striking pro-defendant stands was his dissent in Gamble v. United States, a 2019 case in which the Court declined to reconsider the “dual sovereignty” exception to the Fifth Amendment’s ban on double jeopardy. According to that longstanding doctrine, serial state and federal prosecutions for the same conduct do not constitute double jeopardy because they deal with distinct offenses defined by “separate sovereigns,” even when the definitions are the same. Gamble involved a man with a felony record who was convicted and punished under both state and federal law for illegally possessing a firearm, which seven justices—all but Gorsuch and Ginsburg—deemed constitutional. The defendant was not prosecuted twice for “the same offence,” they said, because two levels of government had separately defined his behavior as a crime.

“The government identifies no evidence suggesting that the framers understood the term ‘same offence’ to bear such a lawyerly sovereign-specific meaning,” Gorsuch wrote in his dissent. To the contrary, he said, British common law, the Fifth Amendment’s history, contemporaneous legal commentary, and early court cases all indicate otherwise. “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result,” he said. “Unfortunately, the Court today endorses a colossal exception to this ancient rule.”

The threat of dual prosecution grows as federal and state criminal codes expand, increasing the areas where they overlap. Gorsuch also worries about that trend, as illustrated by his dissent in Nieves v. Bartlett, a 2019 case in which the Supreme Court rejected a man’s claim that police had violated his First Amendment rights by arresting him for disorderly conduct because his opinions irked them. Most of the justices thought that claim was barred because the cops, regardless of their motivation, had probable cause to arrest the guy.

Gorsuch disagreed. “History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively,” he wrote in a characteristically eloquent dissent. “In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.” That dissent, says Ohio State’s Berman, shows Gorsuch “is not only able but eager to notice that, basically, cops get to do whatever they want.”

‘A Vague Law Is No Law at All’

Another conspicuous theme in Gorsuch’s work is his concern about vague statutes, which violate due process because they do not give people fair notice of what the law requires. That concern was apparent in Makkar, the 10th Circuit case involving analog drugs, where Gorsuch noted that the federal law banning them raises “vagueness concerns,” since “it’s an open question…what exactly it means for chemicals to have a ‘substantially similar’ chemical structure—or effect.” The importance of fair notice also figured in United States v. Rentz, a 2015 10th Circuit case in which Gorsuch wrote the majority opinion holding that a man who fires a gun once, injuring one person and killing another, could not be charged with two counts of “using” a firearm in the course of a violent crime.

Vagueness was central to Sessions v. Dimaya, a 2018 Supreme Court case involving a legal permanent resident with two burglary convictions whom the government sought to deport as an “aggravated felon.” Under the Immigration and Nationality Act, that category included anyone who commits a “crime of violence,” defined as a felony “that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In 2015 the Court had concluded that similar language in the Armed Career Criminal Act was unconstitutionally vague. Five justices—the liberal wing plus Gorsuch—concluded that the same logic doomed the immigration provision.

“Vague laws invite arbitrary power,” Gorsuch wrote in his concurring opinion. “Before holding a lawful permanent resident alien like James Dimaya subject to removal for having committed a crime, the Immigration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean?…The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their fate.”

This year, the same justices teamed up in United States v. Davis to overturn a provision imposing mandatory minimum sentences on people who use firearms while committing a “crime of violence,” based on the same definition that the Court found unconstitutionally vague in Dimaya. “In our constitutional order, a vague law is no law at all,” Gorsuch wrote in the majority opinion. “Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements.”

Unbridled Bureaucrats

Even when laws are not unconstitutionally vague, they may be ambiguous enough that people disagree about their meaning. When that happens, the Supreme Court has said, judges should defer to the interpretation favored by the agency charged with implementing the law. Gorsuch is a critic of that rule, known as “Chevron deference,” because he thinks it violates the separation of powers by inviting executive branch officials to interpret and rewrite the laws they’re supposed to enforce. More generally, he argues that administrative agencies have too much power, which threatens individual liberty. Those positions help explain Gorsuch’s reputation among progressives, who perceive him as a threat to crucial economic, environmental, anti-discrimination, and public safety regulations.

But Gorsuch’s critique of the administrative state is consistent with a constitutionally informed wariness of government power, an attitude that also underlies his positions in cases where he is allied with progressives. In Gutierrez-Brizuela v. Lynch, the 10th Circuit case that is most commonly cited as an example of his opposition to Chevron deference, Gorsuch sided with an immigrant fighting deportation, as he later did in Dimaya. Two years ago in Mathis v. Shulkin, another case where he criticized unfettered bureaucratic discretion, he said the Supreme Court should have heard a veteran’s challenge to an arbitrary denial of disability benefits. In Gundy v. United States, a 2019 case in which the Court upheld a federal sex offender law that gives the attorney general broad discretion to decide whether and how its registration requirements should apply to people convicted before the law was passed, Gorsuch’s dissent sided with, as he put it, “some of the least popular among us.”

As progressives recognize in some situations, it’s “the little guy” who is most vulnerable to an executive branch that exceeds its constitutional authority. The same goes for policies that impinge on rights progressives rarely recognize as important. In 2017, Gorsuch joined Thomas in objecting when the Supreme Court declined to hear a challenge to California’s discretionary handgun carry permit law, which favors the rich and famous over people of modest means who live in dangerous neighborhoods. He has also praised Thomas’ dissent in Kelo v. City of New London, the 2005 case in which the Court approved the taking of property through eminent domain for economic redevelopment. That decision dismayed people across the ideological spectrum because it so clearly empowered wealthy, politically influential interests to bulldoze over the plans and expectations of ordinary people with less pull.

While I don’t expect most progressives to agree with Gorsuch about gun control and property rights, they should at least be willing to recognize when his anti-authoritarian instincts work in their favor. “Folks on the left are scared by a certain type of jurisprudential boldness,” Berman says, because they see Gorsuch as a threat to important precedents in areas such as the administrative state and abortion rights. In this context, even seemingly progressive positions can look scary.

Although Case Western Reserve’s Adler is not sure Gorsuch’s take on double jeopardy is historically correct, he says the justice’s willingness to revisit the dual sovereignty doctrine shows “he doesn’t want to hear that it’s OK to keep violating someone’s rights or to keep letting people get screwed over just because we’ve been doing it for a long time.” In fact, Adler says, “he is, with the possible exception of Justice Thomas, the least enamored of precedent on the Court, and much of the progressive left is really worried about one precedent in particular”—i.e., Roe v. Wade, the 1973 case in which the Court ruled that the Constitution protects a right to obtain an abortion. Adler notes that “Justice Gorsuch’s originalism, combined with his view of precedent, means that he is almost certainly a vote to overturn Roe.”

The same could not be said of Merrick Garland, the Obama-nominated Scalia replacement who was blocked by Senate Republicans in 2016. But at the same time, Adler says, Gorsuch has been “far more favorable to criminal defendants than a Justice Garland would have been.” For progressives, Gorsuch brings benefits as well as risks, but the latter get a lot more attention. Viewed in a more balanced manner, Gorsuch’s nomination should be seen as a redeeming feature of the Trump administration on the left as well as on the right.

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But Gorsuch!

When Donald Trump nominated Neil Gorsuch to the Supreme Court in January 2017, Demand Progress warned that the judge was “an extremist” who would “rubber stamp Trump’s assaults on Americans’ freedoms.” People for the American Way likewise described Gorsuch as “an ideological warrior who puts his own right-wing politics above the Constitution, the law and the rights of everyday people.” During Gorsuch’s confirmation hearings that March, Sen. Mazie Hirono (D–Hawaii) worried that “you rarely seem to find in favor of the little guy.”

Even before Gorsuch heard his first case as a Supreme Court justice in April 2017, it was clear from his decade on the U.S. Court of Appeals for the 10th Circuit that such attacks were unwarranted. Far from screwing over “the little guy” at every opportunity, he had shown unusual sensitivity to the predicament of vulnerable people confronted by implacable and frequently inscrutable agents of the state. “Among the folks that Trump had on his short list,” observes the Ohio State University law professor Douglas Berman, “Gorsuch seemed more defendant-friendly than most of the others,” and “that’s carried over to the Supreme Court.”

During Gorsuch’s first two terms on the Court, he took positions that should be applauded by people who care about criminal justice and civil liberties, including the critics who were so quick to condemn him as a heartless authoritarian. Except for capital cases, where “he doesn’t seem to have much of an affinity for the defense position,” Berman says, Gorsuch is “distinctly concerned about safeguarding defendants’ procedural rights.” While judges across the spectrum have long been willing to compromise civil liberties in cases involving unpopular defendants such as drug dealers and sex offenders, Berman notes, “Gorsuch has, to his credit, said, ‘No, no. The rules are the rules.'” His work shows that an honest attempt to apply the “original public understanding” of constitutional provisions frequently yields libertarian results, limiting government power and protecting individual rights.

That’s not to say Gorsuch himself is a libertarian. In his 2006 book on assisted suicide, he explicitly rejected the “libertarian principle” that would require legalization of that practice. The same principle, he argued, would also require the government to allow “any act of consensual homicide,” including “sadomasochist killings, mass suicide pacts…duels, and the sale of one’s life (not to mention the use of now illicit drugs, prostitution, or the sale of one’s organs).” If the government lets people kill themselves, in other words, it might also have to let them smoke pot.

Nor do Gorsuch’s originalist methods always lead him to conclusions that libertarians like. Last June, for instance, the Supreme Court overturned a Tennessee law that required people to live in the state for at least two years before applying for a license to sell liquor. Seven members of the Court deemed that protectionist policy inconsistent with the Commerce Clause, which was supposed to prevent interstate trade barriers. Gorsuch—joined by Justice Clarence Thomas, another originalist—dissented, arguing that such residence requirements have a long history in the United States and exemplify the sort of state policies that were protected by federal statute before Prohibition and by the 21st Amendment afterward.

On the whole, however, “Gorsuch appears to be on his way to being the most libertarian justice we’ve had on the Court in some time,” says Case Western Reserve University law professor and Volokh Conspiracy blogger Jonathan Adler. And on several issues that progressives in particular care about, such as privacy, due process, and police abuse, Gorsuch has been notably less deferential than the other conservative justices, with whom he has repeatedly parted company. “He’s someone who takes express constitutional guarantees very seriously,” Adler says, “even where they might conflict with what we would expect a conservative to want.”

For the president’s opponents, “But Gorsuch!” is a gibe aimed at conservatives who cite the nomination as vindication of their support for Trump. But for libertarians, there is an element of truth to that line of defense: While Gorsuch may not be the saving grace of the Trump administration, he is far more inclined to question authority and defend “the rights of everyday people” than the man who picked him.

‘What’s Left of the Fourth Amendment?’

Gorsuch’s commitment to enforcing the Fourth Amendment’s ban on “unreasonable searches and seizures” is one of the clearest ways in which his record belies progressives’ claims that he tends to approve “assaults on Americans’ freedoms.”

On the 10th Circuit, Gorsuch wrote the majority opinion in the 2016 case United States v. Ackerman, which held that the National Center for Missing and Exploited Children conducted a search within the meaning of the Fourth Amendment, which generally requires a warrant, when it opened an email forwarded by AOL that contained child pornography. He concluded that the organization, which has special duties and privileges under federal law, qualified as a “governmental actor,” or at least the government’s agent. Just as important, he thought it clear that email should be treated as “papers” or “effects” protected by the Fourth Amendment.

“Of course, the framers were concerned with the protection of physical rather than virtual correspondence,” Gorsuch wrote. “But a more obvious analogy from principle to new technology is hard to imagine and, indeed, many courts have already applied the common law’s ancient trespass to chattels doctrine to electronic, not just written, communications.”

Also in 2016, Gorsuch dissented from the 10th Circuit’s decision in United States v. Carloss, which held that police did not violate the Fourth Amendment when they ignored several “No Trespassing” signs on the way to a “knock and talk” at a home where they ultimately discovered methamphetamine labs. The government, he wrote, seemed worried that “if clearly posted No Trespassing signs can revoke the right of officers to enter a home’s curtilage, their job of ferreting out crime will become marginally more difficult.” He noted that “obedience to the Fourth Amendment always bears that cost and surely brings with it other benefits.” In any case, he said, “our job” is not “to weigh those costs and benefits but to apply the Amendment according to its terms and in light of its historical meaning.”

That is what Gorsuch thought the Supreme Court should have done in Carpenter v. United States, the 2018 decision that said police generally need a warrant to obtain cellphone location data. Gorsuch dissented, not because he disagreed with the result but because he objected to the majority’s reasoning.

The Court made an exception to the “third-party doctrine,” which says the Fourth Amendment does not apply to information that people voluntarily share with others, even when they do so with the understanding that it will be kept confidential. The majority held that, notwithstanding the third-party doctrine, people have a “reasonable expectation of privacy” in the information about their movements that cellphone companies collect while completing their calls. Gorsuch argued that both standards are misbegotten.

Amplifying the concerns raised by Justice Sonia Sotomayor in a 2012 case, Gorsuch said “the Court has never offered a persuasive justification” for the third-party doctrine, which it formulated in the 1970s. Like Sotomayor, he was dismayed by the doctrine’s implications in an age when people routinely store sensitive information on computers outside their homes.

“What’s left of the Fourth Amendment?” Gorsuch asked. “Today we use the Internet to do most everything. Smartphones make it easy to keep a calendar, correspond with friends, make calls, conduct banking, and even watch the game. Countless Internet companies maintain records about us and, increasingly, for us. Even our most private documents—those that, in other eras, we would have locked safely in a desk drawer or destroyed—now reside on third party servers.”

Nor did Gorsuch think that the “reasonable expectation test,” which derives from the 1967 case Katz v. United States, makes much sense, since it calls upon judges to determine which expectations are reasonable. “Katz has yielded an often unpredictable—and sometimes unbelievable—jurisprudence,” he wrote, citing cases in which the Court had upheld warrantless aerial surveillance of private property and warrantless rummaging through people’s trash.

Instead, Gorsuch advocated “a more traditional Fourth Amendment approach” that asks whether the thing to be searched qualifies as someone’s property. He noted that federal law treats cellphone location data as “customer proprietary network information,” which suggests the records belong to the customer and cannot be perused at will by the police.

Prove It

The Fourth Amendment is not the only area where Gorsuch has often sided with criminal defendants. Like Antonin Scalia, the justice he replaced, he is a stickler for requiring prosecutors to prove all the elements of a criminal offense.

In the 2015 case United States v. Makkar, Gorsuch wrote a 10th Circuit decision overturning the convictions of two convenience store owners who were accused of selling “incense” containing a synthetic cannabinoid. He noted that the law under which the defendants were charged, the Federal Analogue Act, required either proof that they knew they were selling a banned substance or proof that they knew the substance was “substantially similar” in its effects and in its chemical structure to a Schedule I or II drug. Prosecutors chose the latter route but did not even attempt to prove the second element, Gorsuch observed, and the jury instructions improperly relieved them of that burden.

In 2012, Gorsuch dissented when the full 10th Circuit declined to rehear a case, United States v. Games-Perez, in which a three-judge panel had rejected a defendant’s argument that he should not have been convicted of illegally possessing a firearm because he did not realize he had a felony record. Gorsuch thought that claim was plausible given what a judge had repeatedly told the defendant, Miguel Games-Perez, about the consequences of his deferred state sentence for attempted robbery. “People sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime,” Gorsuch wrote. “So Mr. Games-Perez will remain behind bars, without the opportunity to present to a jury his argument that he committed no crime at all under the law of the land.”

After joining the Supreme Court, Gorsuch further demonstrated his determination to uphold the rights of criminal defendants in cases involving the Sixth Amendment, which guarantees the right to trial by jury. This is another way in which Gorsuch has emulated Scalia, who played an important role in two landmark decisions establishing the principle that juries must determine facts that increase a defendant’s punishment beyond what would otherwise be authorized by statute. Those decisions made federal sentencing guidelines, which had previously required judges to increase penalties based on facts they determined, advisory rather than mandatory.

This year Gorsuch wrote the plurality opinion in United States v. Haymond, which involved a man who had been convicted of possessing child pornography and who, after serving more than three years in prison, was again caught with child pornography while on supervised release. That second offense, which was never considered by a jury, triggered a five-year mandatory minimum sentence. “In this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt,” Gorsuch wrote. “As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments.”

Gorsuch’s opinion was joined by three members of the Court’s liberal wing: Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Justice Stephen Breyer agreed with the judgment but wrote a separate concurring opinion to express concern about the decision’s potential impact on run-of-the-mill cases in which judges send people back to prison because they have violated the terms of their supervised release. Gorsuch’s fellow conservatives vociferously dissented.

Try, Try Again

In two Sixth Amendment cases that the Court declined to hear, Gorsuch, joined by Sotomayor both times, argued that the issues presented made them worthy of review. One case, Hester v. United States, posed the question of whether facts supporting court-ordered restitution in criminal cases also need to be determined by a jury. The other, Stuart v. Alabama, involved a woman who was convicted of drunk driving based on blood testing by an analyst who never appeared in court.

Given the “decisive role” that forensic evidence often plays in criminal cases, Gorsuch said when the Court declined to hear Stuart, it is vital that defendants have a full opportunity to challenge it. “The Constitution promises every person accused of a crime the right to confront his accusers,” he wrote. “That promise was broken here.” Scalia, who in 2009 wrote a majority opinion that said a defendant had a Sixth Amendment right to question the state laboratory analysts who tested a substance they determined to be “cocaine of a certain quantity,” probably would have agreed.

One of Gorsuch’s most striking pro-defendant stands was his dissent in Gamble v. United States, a 2019 case in which the Court declined to reconsider the “dual sovereignty” exception to the Fifth Amendment’s ban on double jeopardy. According to that longstanding doctrine, serial state and federal prosecutions for the same conduct do not constitute double jeopardy because they deal with distinct offenses defined by “separate sovereigns,” even when the definitions are the same. Gamble involved a man with a felony record who was convicted and punished under both state and federal law for illegally possessing a firearm, which seven justices—all but Gorsuch and Ginsburg—deemed constitutional. The defendant was not prosecuted twice for “the same offence,” they said, because two levels of government had separately defined his behavior as a crime.

“The government identifies no evidence suggesting that the framers understood the term ‘same offence’ to bear such a lawyerly sovereign-specific meaning,” Gorsuch wrote in his dissent. To the contrary, he said, British common law, the Fifth Amendment’s history, contemporaneous legal commentary, and early court cases all indicate otherwise. “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result,” he said. “Unfortunately, the Court today endorses a colossal exception to this ancient rule.”

The threat of dual prosecution grows as federal and state criminal codes expand, increasing the areas where they overlap. Gorsuch also worries about that trend, as illustrated by his dissent in Nieves v. Bartlett, a 2019 case in which the Supreme Court rejected a man’s claim that police had violated his First Amendment rights by arresting him for disorderly conduct because his opinions irked them. Most of the justices thought that claim was barred because the cops, regardless of their motivation, had probable cause to arrest the guy.

Gorsuch disagreed. “History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively,” he wrote in a characteristically eloquent dissent. “In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.” That dissent, says Ohio State’s Berman, shows Gorsuch “is not only able but eager to notice that, basically, cops get to do whatever they want.”

‘A Vague Law Is No Law at All’

Another conspicuous theme in Gorsuch’s work is his concern about vague statutes, which violate due process because they do not give people fair notice of what the law requires. That concern was apparent in Makkar, the 10th Circuit case involving analog drugs, where Gorsuch noted that the federal law banning them raises “vagueness concerns,” since “it’s an open question…what exactly it means for chemicals to have a ‘substantially similar’ chemical structure—or effect.” The importance of fair notice also figured in United States v. Rentz, a 2015 10th Circuit case in which Gorsuch wrote the majority opinion holding that a man who fires a gun once, injuring one person and killing another, could not be charged with two counts of “using” a firearm in the course of a violent crime.

Vagueness was central to Sessions v. Dimaya, a 2018 Supreme Court case involving a legal permanent resident with two burglary convictions whom the government sought to deport as an “aggravated felon.” Under the Immigration and Nationality Act, that category included anyone who commits a “crime of violence,” defined as a felony “that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In 2015 the Court had concluded that similar language in the Armed Career Criminal Act was unconstitutionally vague. Five justices—the liberal wing plus Gorsuch—concluded that the same logic doomed the immigration provision.

“Vague laws invite arbitrary power,” Gorsuch wrote in his concurring opinion. “Before holding a lawful permanent resident alien like James Dimaya subject to removal for having committed a crime, the Immigration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean?…The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their fate.”

This year, the same justices teamed up in United States v. Davis to overturn a provision imposing mandatory minimum sentences on people who use firearms while committing a “crime of violence,” based on the same definition that the Court found unconstitutionally vague in Dimaya. “In our constitutional order, a vague law is no law at all,” Gorsuch wrote in the majority opinion. “Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements.”

Unbridled Bureaucrats

Even when laws are not unconstitutionally vague, they may be ambiguous enough that people disagree about their meaning. When that happens, the Supreme Court has said, judges should defer to the interpretation favored by the agency charged with implementing the law. Gorsuch is a critic of that rule, known as “Chevron deference,” because he thinks it violates the separation of powers by inviting executive branch officials to interpret and rewrite the laws they’re supposed to enforce. More generally, he argues that administrative agencies have too much power, which threatens individual liberty. Those positions help explain Gorsuch’s reputation among progressives, who perceive him as a threat to crucial economic, environmental, anti-discrimination, and public safety regulations.

But Gorsuch’s critique of the administrative state is consistent with a constitutionally informed wariness of government power, an attitude that also underlies his positions in cases where he is allied with progressives. In Gutierrez-Brizuela v. Lynch, the 10th Circuit case that is most commonly cited as an example of his opposition to Chevron deference, Gorsuch sided with an immigrant fighting deportation, as he later did in Dimaya. Two years ago in Mathis v. Shulkin, another case where he criticized unfettered bureaucratic discretion, he said the Supreme Court should have heard a veteran’s challenge to an arbitrary denial of disability benefits. In Gundy v. United States, a 2019 case in which the Court upheld a federal sex offender law that gives the attorney general broad discretion to decide whether and how its registration requirements should apply to people convicted before the law was passed, Gorsuch’s dissent sided with, as he put it, “some of the least popular among us.”

As progressives recognize in some situations, it’s “the little guy” who is most vulnerable to an executive branch that exceeds its constitutional authority. The same goes for policies that impinge on rights progressives rarely recognize as important. In 2017, Gorsuch joined Thomas in objecting when the Supreme Court declined to hear a challenge to California’s discretionary handgun carry permit law, which favors the rich and famous over people of modest means who live in dangerous neighborhoods. He has also praised Thomas’ dissent in Kelo v. City of New London, the 2005 case in which the Court approved the taking of property through eminent domain for economic redevelopment. That decision dismayed people across the ideological spectrum because it so clearly empowered wealthy, politically influential interests to bulldoze over the plans and expectations of ordinary people with less pull.

While I don’t expect most progressives to agree with Gorsuch about gun control and property rights, they should at least be willing to recognize when his anti-authoritarian instincts work in their favor. “Folks on the left are scared by a certain type of jurisprudential boldness,” Berman says, because they see Gorsuch as a threat to important precedents in areas such as the administrative state and abortion rights. In this context, even seemingly progressive positions can look scary.

Although Case Western Reserve’s Adler is not sure Gorsuch’s take on double jeopardy is historically correct, he says the justice’s willingness to revisit the dual sovereignty doctrine shows “he doesn’t want to hear that it’s OK to keep violating someone’s rights or to keep letting people get screwed over just because we’ve been doing it for a long time.” In fact, Adler says, “he is, with the possible exception of Justice Thomas, the least enamored of precedent on the Court, and much of the progressive left is really worried about one precedent in particular”—i.e., Roe v. Wade, the 1973 case in which the Court ruled that the Constitution protects a right to obtain an abortion. Adler notes that “Justice Gorsuch’s originalism, combined with his view of precedent, means that he is almost certainly a vote to overturn Roe.”

The same could not be said of Merrick Garland, the Obama-nominated Scalia replacement who was blocked by Senate Republicans in 2016. But at the same time, Adler says, Gorsuch has been “far more favorable to criminal defendants than a Justice Garland would have been.” For progressives, Gorsuch brings benefits as well as risks, but the latter get a lot more attention. Viewed in a more balanced manner, Gorsuch’s nomination should be seen as a redeeming feature of the Trump administration on the left as well as on the right.

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Roger Stone Found Guilty on All Counts

Roger Stone, the longtime associate and former campaign adviser of Donald Trump, was found guilty today by a federal jury of lying to Congress and other crimes.

The Justice Department indicted Stone in January on five counts of making false statements to Congress, one count of witness tampering, and one count of obstructing a congressional proceeding. The charges all stemmed from Special Counsel Robert Mueller’s Russia investigation, and they related to Stone’s communications with the Trump campaign about Democratic emails published by Wikileaks.

As Reason‘s Elizabeth Nolan Brown has reported:

The indictment notes that during Stone’s tenure as a Trump campaign adviser, he “was claiming both publicly and privately to have communicated with Organization 1,” a.k.a. WikiLeaks. In August 2016, WikiLeaks denied direct communication with Stone. Stone then said his communication had been though a “mutual friend” and “go-between,” and he “continued to communicate with members of the Trump Campaign” about what WikiLeaks might have from Hillary Clinton and the Democratic National Committee.

The indictment further alleges that Stone “made multiple false statements” to the U.S. House Permanent Committee on Intelligence about communications with WikiLeaks, and that he “falsely denied possessing records that contained evidence of these interactions.”

Stone was found guilty today on all seven of the charges brought by the Justice Department.

President Donald Trump immediately took to Twitter to voice his disapproval. “So they now convict Roger Stone of lying and want to jail him for many years to come,” Trump wrote. “Well, what about Crooked Hillary, Comey, Strzok, Page, McCabe, Brennan, Clapper, Shifty Schiff, Ohr & Nellie, Steele & all of the others, including even Mueller himself? Didn’t they lie?”

According to CNN, federal prosecutors wanted Stone to be taken into custody immediately after the conclusion of the trial. But Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia stated that she “will release him on his current conditions pending the sentencing date.”

Stone now faces up to 50 years in prison.

Related:

“FBI and CNN Turn Roger Stone Arrest Into a Media Event,” by Elizabeth Nolan Brown

“Roger Stone Indictment Describes a Cover-Up of a Non-Existent Crime,” by Jacob Sullum

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Roger Stone Found Guilty on All Counts

Roger Stone, the longtime associate and former campaign adviser of Donald Trump, was found guilty today by a federal jury of lying to Congress and other crimes.

The Justice Department indicted Stone in January on five counts of making false statements to Congress, one count of witness tampering, and one count of obstructing a congressional proceeding. The charges all stemmed from Special Counsel Robert Mueller’s Russia investigation, and they related to Stone’s communications with the Trump campaign about Democratic emails published by Wikileaks.

As Reason‘s Elizabeth Nolan Brown has reported:

The indictment notes that during Stone’s tenure as a Trump campaign adviser, he “was claiming both publicly and privately to have communicated with Organization 1,” a.k.a. WikiLeaks. In August 2016, WikiLeaks denied direct communication with Stone. Stone then said his communication had been though a “mutual friend” and “go-between,” and he “continued to communicate with members of the Trump Campaign” about what WikiLeaks might have from Hillary Clinton and the Democratic National Committee.

The indictment further alleges that Stone “made multiple false statements” to the U.S. House Permanent Committee on Intelligence about communications with WikiLeaks, and that he “falsely denied possessing records that contained evidence of these interactions.”

Stone was found guilty today on all seven of the charges brought by the Justice Department.

President Donald Trump immediately took to Twitter to voice his disapproval. “So they now convict Roger Stone of lying and want to jail him for many years to come,” Trump wrote. “Well, what about Crooked Hillary, Comey, Strzok, Page, McCabe, Brennan, Clapper, Shifty Schiff, Ohr & Nellie, Steele & all of the others, including even Mueller himself? Didn’t they lie?”

According to CNN, federal prosecutors wanted Stone to be taken into custody immediately after the conclusion of the trial. But Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia stated that she “will release him on his current conditions pending the sentencing date.”

Stone now faces up to 50 years in prison.

Related:

“FBI and CNN Turn Roger Stone Arrest Into a Media Event,” by Elizabeth Nolan Brown

“Roger Stone Indictment Describes a Cover-Up of a Non-Existent Crime,” by Jacob Sullum

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Short Circuit: A Roundup of Recent Federal Court Decisions

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

New on the Bound By Oath podcast: Substantive due process, the constitutional requirement that when the government wants to deprive someone of life, liberty, or property, it has to have a good reason. Featuring Professors Erwin Chemerinsky, Randy Barnett, and Victoria Nourse. Click here for Apple Podcasts.

  • New York man is sentenced to three years in prison on a state marijuana charge, to run concurrently with a yet-to-be-determined federal sentence on gun charges (which ends up being 10 years). Thanks to the vagaries of New York sentencing law, this confuses the hell out of everyone, and the prisoner ends up being detained in state prison for four additional months after serving his federal sentence, before things are finally straightened out. A due process violation? Second Circuit: Yes. When prison officials suspect an error like this, they need to inform the prisoner, the sentencing judge, and the lawyers. But that wasn’t clearly established, so qualified immunity.
  • Pennsylvania inmate eats Peanut M&M offered to him in visiting room (purchased from a vending machine in the visiting room). Guards suspect he swallowed a baggie of drugs. He is taken to a special cell, and his excretions are monitored for four days. An X-ray is taken. No drugs. Nevertheless, officials keep him there for five more days. For all nine days, the room is constantly illuminated, and there is no water, TP, or soap. The inmate is generally handcuffed to a bed, so he can’t stand. Third Circuit: He can sue over the length of the confinement. Dissent: Too right. But he should also be able to sue over being forced to lie in his own filth.
  • Woman calls 911 when her ex-husband (who had repeatedly attacked and threatened to kill her) breaks into her Dallas home. For 17 minutes, she screams for help on the phone. But police take nearly an hour to arrive, after making a pitstop at a convenience store. When they do show up, they knock, but there’s no answer, so they leave. Her family finds her body two days later. Fifth Circuit: No constitutional violations here.
  • Texas refuses to let man have a Buddhist spiritual adviser in the execution chamber (he could have a Christian or Muslim adviser with him). Supreme Court: Can’t do that. Texas: Fine. No more spiritual advisers of any religion in the chamber. Inmates may meet with independent spiritual advisers until 4:00 p.m., talk with them by phone until 5:00 p.m., and meet with Texas-employed spiritual advisers until they enter the chamber at 6:00 p.m. Inmate: But Texas employs only Christian and Muslim spiritual advisers, so I’m still treated differently. Fifth Circuit: Can’t do that. Dissent: We’re only talking about an hour here.
  • Texans who move to a new home can update their driver’s licenses by either submitting a paper application or applying online. Those who apply on paper can have their voter registration automatically updated. Those who apply online, however, have to mail in their updated voter registration. Can three people, who applied online but discovered when it came time to vote that they were not registered, sue? Fifth Circuit: They’ve since registered and haven’t suggested they’ll move again, so they lack standing. Concurrence: Being deprived of the right to vote is a big deal.
  • Man buys heroin, overdoses, dies. A Kalamazoo, Mich. dealer is convicted of multiple counts, including selling heroin resulting in death, which brings with it a mandatory life-without-parole sentence. Dealer: I got set up! Sixth Circuit: The “sentence is severe, and perhaps even misguided as a matter of criminal-justice policy.” But sentence affirmed.
  • Ohio state trooper, who is black, repeatedly sexually harasses women while on duty, gets fired. He sues, alleging racial discrimination, citing the behavior of a white trooper who was not dismissed. Sixth Circuit (over a dissent): “Morris Johnson and David Johnson are both troopers who acted inappropriately. And they happen to share the same last name. But the similarities end there.”
  • Tennessee parents of a child with autism remove him from public school and place him in a private therapy program, where he starts to improve. They are convicted of truancy. They enroll their child in a state-approved private school, but they are worried it won’t be a good fit and want the option to remove him from the school in the future. So they file a lawsuit and seek a preliminary injunction, which the district court denies. Sixth Circuit: And it was correct to do so. Even if the parents are right on the law, they haven’t shown imminent injury.
  • There’s bad lawyering, and then there’s lawyering so bad that it triggers two different types of sanctions. So it is in this Seventh Circuit employment discrimination appeal, in which the arguments in appellant’s “monstrosity of an appellate brief” are deemed so “frivolous” and “incoherent” as to trigger a show-cause order under both Federal Rules of Appellate Procedure 28 and 38.
  • Grant, Okla. school superintendent conspires with his secretary to commit bank fraud and embezzlement. Yikes! The secretary commits suicide, leaving note that claims sole responsibility for the crimes. Double yikes! At superintendent’s trial, district court excludes the exculpatory letter. Triple yikes? No, affirms the Tenth Circuit. The trial court reasonably concluded that the note was inadmissible hearsay.
  • Octogenarian with Alzheimer’s and dementia is out for a walk near his home when police approach him and begin asking him questions. Confused by the encounter, he attempts to walk away, at which point police tackle him, handcuff him, and arrest him. He’s held in custody for 11 hours until he signs a form that he can’t understand and that Larimer County, Colo. jail officials will not permit his wife to effectively explain to him. Did the jail officials violate the Americans with Disabilities Act? Tenth Circuit (unsigned, nonprecedential opinion): No reasonable jury could so conclude. Dissent (signed and published): “If law enforcement officers propose to arrest Alzheimer’s patients for the simple act of walking around the block, then jail personnel had best be prepared to accommodate the disabilities of those patients when clearly advised of the patients’ condition.” (The man’s claims against the police are settled for $113k.)
  • Salt Lake City, Utah man suspected of terrorist activity is subject to advanced screenings at the airport: no checking in online (a federal officer must OK his boarding pass), prolonged questioning and searches at the checkpoint, and then another search at the gate. Which does not substantially interfere with the man’s right to travel, says the Tenth Circuit, so his due process claims were rightly dismissed.
  • In 2015, two private Christian high schools who are to face off against one another on the gridiron ask Florida state athletics officials if they can conduct a joint prayer over the loudspeaker before kickoff. Officials decline, citing the principle of the separation of church and state. A First Amendment violation? Could be, says the Eleventh Circuit; the free speech and free exercise claims can proceed to discovery.
  • Georgia game warden accosts man resting in a truck, follows him, handcuffs him, and then releases him. Man sues. Game warden: I had probable cause to stop him because he had a sleeping bag in the bed of his truck, which looked like the type of bags used by “illegal palmetto berry harvesters.” District court: The “observance of an unfurled, flattened sleeping bag in the bed of a parked truck in a public park in the middle of the day is not a particularized and objective basis establishing reasonable suspicion of criminal activity—no matter what berry-picking season it is.” Eleventh Circuit: Just so.
  • And in en banc news, the D.C. Circuit will not reconsider its decision refusing to block congressional subpoenas of President Trump’s business records. Dissent: “If the competing opinions here demonstrate anything, it is that this case presents exceptionally important questions regarding the separation of powers among Congress, the Executive Branch, and the Judiciary.”

Washington state has a work-study financial aid program that pays a portion of low- and middle-income college students’ wages when they obtain work—often related to their course of study. Participating employers include businesses large and small, nonprofits, and municipalities. But students working for religious employers were barred from the program—until this week. In response to an IJ lawsuit, state officials adopted new regulations removing the prohibition. Click here for more.

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Short Circuit: A Roundup of Recent Federal Court Decisions

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

New on the Bound By Oath podcast: Substantive due process, the constitutional requirement that when the government wants to deprive someone of life, liberty, or property, it has to have a good reason. Featuring Professors Erwin Chemerinsky, Randy Barnett, and Victoria Nourse. Click here for Apple Podcasts.

  • New York man is sentenced to three years in prison on a state marijuana charge, to run concurrently with a yet-to-be-determined federal sentence on gun charges (which ends up being 10 years). Thanks to the vagaries of New York sentencing law, this confuses the hell out of everyone, and the prisoner ends up being detained in state prison for four additional months after serving his federal sentence, before things are finally straightened out. A due process violation? Second Circuit: Yes. When prison officials suspect an error like this, they need to inform the prisoner, the sentencing judge, and the lawyers. But that wasn’t clearly established, so qualified immunity.
  • Pennsylvania inmate eats Peanut M&M offered to him in visiting room (purchased from a vending machine in the visiting room). Guards suspect he swallowed a baggie of drugs. He is taken to a special cell, and his excretions are monitored for four days. An X-ray is taken. No drugs. Nevertheless, officials keep him there for five more days. For all nine days, the room is constantly illuminated, and there is no water, TP, or soap. The inmate is generally handcuffed to a bed, so he can’t stand. Third Circuit: He can sue over the length of the confinement. Dissent: Too right. But he should also be able to sue over being forced to lie in his own filth.
  • Woman calls 911 when her ex-husband (who had repeatedly attacked and threatened to kill her) breaks into her Dallas home. For 17 minutes, she screams for help on the phone. But police take nearly an hour to arrive, after making a pitstop at a convenience store. When they do show up, they knock, but there’s no answer, so they leave. Her family finds her body two days later. Fifth Circuit: No constitutional violations here.
  • Texas refuses to let man have a Buddhist spiritual adviser in the execution chamber (he could have a Christian or Muslim adviser with him). Supreme Court: Can’t do that. Texas: Fine. No more spiritual advisers of any religion in the chamber. Inmates may meet with independent spiritual advisers until 4:00 p.m., talk with them by phone until 5:00 p.m., and meet with Texas-employed spiritual advisers until they enter the chamber at 6:00 p.m. Inmate: But Texas employs only Christian and Muslim spiritual advisers, so I’m still treated differently. Fifth Circuit: Can’t do that. Dissent: We’re only talking about an hour here.
  • Texans who move to a new home can update their driver’s licenses by either submitting a paper application or applying online. Those who apply on paper can have their voter registration automatically updated. Those who apply online, however, have to mail in their updated voter registration. Can three people, who applied online but discovered when it came time to vote that they were not registered, sue? Fifth Circuit: They’ve since registered and haven’t suggested they’ll move again, so they lack standing. Concurrence: Being deprived of the right to vote is a big deal.
  • Man buys heroin, overdoses, dies. A Kalamazoo, Mich. dealer is convicted of multiple counts, including selling heroin resulting in death, which brings with it a mandatory life-without-parole sentence. Dealer: I got set up! Sixth Circuit: The “sentence is severe, and perhaps even misguided as a matter of criminal-justice policy.” But sentence affirmed.
  • Ohio state trooper, who is black, repeatedly sexually harasses women while on duty, gets fired. He sues, alleging racial discrimination, citing the behavior of a white trooper who was not dismissed. Sixth Circuit (over a dissent): “Morris Johnson and David Johnson are both troopers who acted inappropriately. And they happen to share the same last name. But the similarities end there.”
  • Tennessee parents of a child with autism remove him from public school and place him in a private therapy program, where he starts to improve. They are convicted of truancy. They enroll their child in a state-approved private school, but they are worried it won’t be a good fit and want the option to remove him from the school in the future. So they file a lawsuit and seek a preliminary injunction, which the district court denies. Sixth Circuit: And it was correct to do so. Even if the parents are right on the law, they haven’t shown imminent injury.
  • There’s bad lawyering, and then there’s lawyering so bad that it triggers two different types of sanctions. So it is in this Seventh Circuit employment discrimination appeal, in which the arguments in appellant’s “monstrosity of an appellate brief” are deemed so “frivolous” and “incoherent” as to trigger a show-cause order under both Federal Rules of Appellate Procedure 28 and 38.
  • Grant, Okla. school superintendent conspires with his secretary to commit bank fraud and embezzlement. Yikes! The secretary commits suicide, leaving note that claims sole responsibility for the crimes. Double yikes! At superintendent’s trial, district court excludes the exculpatory letter. Triple yikes? No, affirms the Tenth Circuit. The trial court reasonably concluded that the note was inadmissible hearsay.
  • Octogenarian with Alzheimer’s and dementia is out for a walk near his home when police approach him and begin asking him questions. Confused by the encounter, he attempts to walk away, at which point police tackle him, handcuff him, and arrest him. He’s held in custody for 11 hours until he signs a form that he can’t understand and that Larimer County, Colo. jail officials will not permit his wife to effectively explain to him. Did the jail officials violate the Americans with Disabilities Act? Tenth Circuit (unsigned, nonprecedential opinion): No reasonable jury could so conclude. Dissent (signed and published): “If law enforcement officers propose to arrest Alzheimer’s patients for the simple act of walking around the block, then jail personnel had best be prepared to accommodate the disabilities of those patients when clearly advised of the patients’ condition.” (The man’s claims against the police are settled for $113k.)
  • Salt Lake City, Utah man suspected of terrorist activity is subject to advanced screenings at the airport: no checking in online (a federal officer must OK his boarding pass), prolonged questioning and searches at the checkpoint, and then another search at the gate. Which does not substantially interfere with the man’s right to travel, says the Tenth Circuit, so his due process claims were rightly dismissed.
  • In 2015, two private Christian high schools who are to face off against one another on the gridiron ask Florida state athletics officials if they can conduct a joint prayer over the loudspeaker before kickoff. Officials decline, citing the principle of the separation of church and state. A First Amendment violation? Could be, says the Eleventh Circuit; the free speech and free exercise claims can proceed to discovery.
  • Georgia game warden accosts man resting in a truck, follows him, handcuffs him, and then releases him. Man sues. Game warden: I had probable cause to stop him because he had a sleeping bag in the bed of his truck, which looked like the type of bags used by “illegal palmetto berry harvesters.” District court: The “observance of an unfurled, flattened sleeping bag in the bed of a parked truck in a public park in the middle of the day is not a particularized and objective basis establishing reasonable suspicion of criminal activity—no matter what berry-picking season it is.” Eleventh Circuit: Just so.
  • And in en banc news, the D.C. Circuit will not reconsider its decision refusing to block congressional subpoenas of President Trump’s business records. Dissent: “If the competing opinions here demonstrate anything, it is that this case presents exceptionally important questions regarding the separation of powers among Congress, the Executive Branch, and the Judiciary.”

Washington state has a work-study financial aid program that pays a portion of low- and middle-income college students’ wages when they obtain work—often related to their course of study. Participating employers include businesses large and small, nonprofits, and municipalities. But students working for religious employers were barred from the program—until this week. In response to an IJ lawsuit, state officials adopted new regulations removing the prohibition. Click here for more.

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Brooklyn School Integration Is Totally Working! (Except for Some Non-Compliant Families, but They Probably Hate Diversity)

New York City is on the precipice of the country’s most ambitious school-integration program since the days of busing. Just yesterday, City Council passed a bill requiring every school district to create its own “diversity working group” and subsequent action plan. A similar system-wide advisory group recently recommended making “all schools represent the socioeconomic and racial diversity” in the city within 10 years, which would require a logistically massive undertaking.

This “equity” push, which many integration advocates are holding up as a model for the entire country, was spearheaded last year in the middle schools of the Brooklyn district where my daughters both happen to attend. The 2019–20 class of District 15 6th graders, which includes my eldest, is the first to be admitted under a radical new system in which student performance no longer matters. It has been replaced by a “controlled choice” process of a bifurcated lottery (depending on socioeconomic status) that attempts to harmonize parents’ school preferences with educational planners’ demographic composition targets.

So there’s a lot at stake—for families, for the district, for New York, for other cities that follow New York’s lead—when it comes to the final fall enrollment picture of District 15’s Diversity Plan. Would school demographics change significantly? Would people begin to abandon government-operated institutions for (still-public) charters, or private options, or new districts?

Well, those numbers began to come in yesterday afternoon, and the preliminary answers to those two questions are “yes” and “yes.”

After a stage-managed release of selective enrollment information (there isn’t yet any publicly available link to the broad data set), the headlines were overwhelmingly about the sharp increase in demographic integration across individual schools: “Drive to Desegregate Brooklyn Public Schools Increases Student Diversity,” “Diversity improved in Brooklyn school district thanks to new admissions plan, NYC says,” and so on.

Those numbers are indeed dramatic. “Eight of the district’s 11 middle schools now enroll sixth grade classes that are between 40% and 75% needy students, compared to only three schools in that range last year,” notes the Daily News.

Most salutarily from my point of view, students from neighborhood-zoned elementary schools that once never bothered with the district’s so-called “Big Three” middle schools experienced a huge jump in both applications and acceptance. Expanding the opportunities for poorer kids should be at the heart of every educational reform, which is one reason I find it so appalling that Mayor Bill de Blasio and too many other New York officials have such a hostile attitude toward charter schools.

So that’s one half of the enrollment picture. What, then, about the other half? Would the new changes lead to (or at least correlate with) more families leaving the system than before?

Those numbers are also dramatic, though downplayed in the reporting and ignored altogether in some of the political self-congratulation. Year-over-year 6th grade enrollment was down 7 percent in 2019, the first decrease of any kind in at least half a decade:

The percentage of applicants who ended up attending a district-run middle school decreased from 63 percent in 2018 to 59 percent in 2019. The percentage of same-year 6th graders compared to same-year 5th graders decreased—again, for the first time in at least half a decade—from 80 percent last year to 76 percent this year, though in several respects 2018 was an anomalous spike year for enrollment.

You can analyze what numbers that are available any which way—in fact, please do!

But the bottom line is that nobody at the dozen or so related public school meetings I have attended predicted anything like such a dramatic drop-off. “All of the schools in District 15 are very, very full,” New York Department of Education Director of Enrollment Research and Policy Andy McClintock said at a meeting I attended in May.

The 7 percent drop isn’t the only year-over-year statistic that may worry bureaucrats tasked with educating all willing students. The number of families who appealed their school designation but were rejected rose from 290 in 2018 to 435 this year (or from 7.7 percent of applicants to 11.8 percent). That net addition of 145 disgruntled families is awfully close to the 168-student reduction in this year’s 6th grade class. Meanwhile, local interest in at least one of the five charter schools operating within district boundaries has effectively doubled.

When equity-focused controlled-choice systems lead to declining enrollment, as has happened in San Francisco, Charlotte, and elsewhere, it can have adverse effects for the very integration at the heart of the exercise. As The New York Times concluded in an April article about San Francisco (where current NYC schools chief Richard Carranza once ran things), “About a quarter of the city’s children are enrolled in private school, a higher percentage than in some other major cities, like New York, where it is around 20 percent. The lottery system is thought to be a major reason wealthy parents here opt out of public schools, further worsening segregation.”

So you might think that proponents would have reacted to yesterday’s numbers with a measure of cautious humility. Er, not quite.

In a remarkable Daily News op-ed that came out even before the news did (funny, that), two school-diversity activists and my city councilman, Brad Lander, not only declared victory but did so without even acknowledging the enrollment drop. Along the way, they managed to smear constituent parents for making unenlightened choices:

Many observers prophesied that this long-overdue correction would cause many white and affluent families, including those in neighborhoods like Park Slope, to exit the public school system altogether.

We have predicted otherwise—both because the new plan hardly lays such a burden on these families as to cause anything so drastic, and, more fundamentally, because we have more faith in our community….

While we may have lost a handful of families who were not interested in building diverse and supportive school communities, we may be gaining some who are.

There are many reasons families decline to accept their school designations. For instance, when you get assigned a school you didn’t put on your list, as happened to a whopping 45 kids at the district’s least desirable and typically lowest-performing school (which, shocker, saw its 6th grade enrollment drop from 176 to 147). Or, as in the case of a Diversity Plan supporter who helped design the middle school algorithm in the first place, when your daughter gets her 10th-ranked pick and the school is far away. Or when the algorithm spits out two different middle-school destinations, 40 minutes from one another, for your twins.

No matter: As a class, you will be treated by the people whose salaries you pay as the kind of monsters who are “not interested in building diverse and supportive school communities.”

As I wrote in September, “In what has become the education playbook for the city of New York, and a political tactic that threatens to jump the banks from Blue State America to some policy terrain near you, activists, government officials, and even journalists are recklessly deploying the scarlet letter of racism to clear out potential dissent.”

For now, the educational establishment is too busy high-fiving itself to spend too much time slamming the door behind noncompliant parents. Instead, in an odd but telling example of goalpost-shifting, the consensus brag is that the year-over-year percentage of Caucasian kids in the district remained the same: 31 percent. Lander titled his piece “The white flight that wasn’t.” The enrollment numbers, activist Miriam Nunberg told The Wall Street Journal, “tests the myth there will be white flight if you create heterogeneous groupings.”

What makes the white flight formulation particularly interesting to me is that in all the local school meetings I slogged through, I have never heard the phrase used by anyone except advocates for the Diversity Plan, usually as a straw man for the perceived unsavoriness of any skeptics’ motives.

When a parent at one gathering asked a Community Education Council member what was being done to retain families who were given designations they didn’t like, he shot back, “I don’t know how you would address the question without it sounding like, ‘What are you going to do about white flight?’ Honestly, that is basically what the question is, and I don’t know how you can ask a panel of people who have spent the last two years working on a Diversity Plan how we are going to cater to the parents who reject the idea of diversity.”

When I mentioned at one elementary school rezoning breakout session that forcing 5-year-olds to travel long distances would create “a lot of unhappy parents,” one woman snapped back at me, “You mean a lot of unhappy white parents!” Which I in fact did not mean.

When Lander at the beginning of this school year again declared victory for the Diversity Plan, he started off his Buzzfeed piece with a meditation on how “Segregation is central to the ideology of white supremacy and the reproduction of America’s racial caste system,” then went on to lament that “Integration efforts are often met with backlash as white (and now sometimes Asian) parents feel something is being taken from them.”

Such accusatory generalizations discourage public participation in policymaking. Whether they end up discouraging parents from enrolling their kids in local public schools, after years of steady increases, remains to be seen. Yesterday’s partial numbers tell us about representation, but not the lived-in experience of education. On the core question of whether students and schools will improve, it is far too early to declare either victory or defeat.

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Brooklyn School Integration Is Totally Working! (Except for Some Non-Compliant Families, but They Probably Hate Diversity)

New York City is on the precipice of the country’s most ambitious school-integration program since the days of busing. Just yesterday, City Council passed a bill requiring every school district to create its own “diversity working group” and subsequent action plan. A similar system-wide advisory group recently recommended making “all schools represent the socioeconomic and racial diversity” in the city within 10 years, which would require a logistically massive undertaking.

This “equity” push, which many integration advocates are holding up as a model for the entire country, was spearheaded last year in the middle schools of the Brooklyn district where my daughters both happen to attend. The 2019–20 class of District 15 6th graders, which includes my eldest, is the first to be admitted under a radical new system in which student performance no longer matters. It has been replaced by a “controlled choice” process of a bifurcated lottery (depending on socioeconomic status) that attempts to harmonize parents’ school preferences with educational planners’ demographic composition targets.

So there’s a lot at stake—for families, for the district, for New York, for other cities that follow New York’s lead—when it comes to the final fall enrollment picture of District 15’s Diversity Plan. Would school demographics change significantly? Would people begin to abandon government-operated institutions for (still-public) charters, or private options, or new districts?

Well, those numbers began to come in yesterday afternoon, and the preliminary answers to those two questions are “yes” and “yes.”

After a stage-managed release of selective enrollment information (there isn’t yet any publicly available link to the broad data set), the headlines were overwhelmingly about the sharp increase in demographic integration across individual schools: “Drive to Desegregate Brooklyn Public Schools Increases Student Diversity,” “Diversity improved in Brooklyn school district thanks to new admissions plan, NYC says,” and so on.

Those numbers are indeed dramatic. “Eight of the district’s 11 middle schools now enroll sixth grade classes that are between 40% and 75% needy students, compared to only three schools in that range last year,” notes the Daily News.

Most salutarily from my point of view, students from neighborhood-zoned elementary schools that once never bothered with the district’s so-called “Big Three” middle schools experienced a huge jump in both applications and acceptance. Expanding the opportunities for poorer kids should be at the heart of every educational reform, which is one reason I find it so appalling that Mayor Bill de Blasio and too many other New York officials have such a hostile attitude toward charter schools.

So that’s one half of the enrollment picture. What, then, about the other half? Would the new changes lead to (or at least correlate with) more families leaving the system than before?

Those numbers are also dramatic, though downplayed in the reporting and ignored altogether in some of the political self-congratulation. Year-over-year 6th grade enrollment was down 7 percent in 2019, the first decrease of any kind in at least half a decade:

The percentage of applicants who ended up attending a district-run middle school decreased from 63 percent in 2018 to 59 percent in 2019. The percentage of same-year 6th graders compared to same-year 5th graders decreased—again, for the first time in at least half a decade—from 80 percent last year to 76 percent this year, though in several respects 2018 was an anomalous spike year for enrollment.

You can analyze what numbers that are available any which way—in fact, please do!

But the bottom line is that nobody at the dozen or so related public school meetings I have attended predicted anything like such a dramatic drop-off. “All of the schools in District 15 are very, very full,” New York Department of Education Director of Enrollment Research and Policy Andy McClintock said at a meeting I attended in May.

The 7 percent drop isn’t the only year-over-year statistic that may worry bureaucrats tasked with educating all willing students. The number of families who appealed their school designation but were rejected rose from 290 in 2018 to 435 this year (or from 7.7 percent of applicants to 11.8 percent). That net addition of 145 disgruntled families is awfully close to the 168-student reduction in this year’s 6th grade class. Meanwhile, local interest in at least one of the five charter schools operating within district boundaries has effectively doubled.

When equity-focused controlled-choice systems lead to declining enrollment, as has happened in San Francisco, Charlotte, and elsewhere, it can have adverse effects for the very integration at the heart of the exercise. As The New York Times concluded in an April article about San Francisco (where current NYC schools chief Richard Carranza once ran things), “About a quarter of the city’s children are enrolled in private school, a higher percentage than in some other major cities, like New York, where it is around 20 percent. The lottery system is thought to be a major reason wealthy parents here opt out of public schools, further worsening segregation.”

So you might think that proponents would have reacted to yesterday’s numbers with a measure of cautious humility. Er, not quite.

In a remarkable Daily News op-ed that came out even before the news did (funny, that), two school-diversity activists and my city councilman, Brad Lander, not only declared victory but did so without even acknowledging the enrollment drop. Along the way, they managed to smear constituent parents for making unenlightened choices:

Many observers prophesied that this long-overdue correction would cause many white and affluent families, including those in neighborhoods like Park Slope, to exit the public school system altogether.

We have predicted otherwise—both because the new plan hardly lays such a burden on these families as to cause anything so drastic, and, more fundamentally, because we have more faith in our community….

While we may have lost a handful of families who were not interested in building diverse and supportive school communities, we may be gaining some who are.

There are many reasons families decline to accept their school designations. For instance, when you get assigned a school you didn’t put on your list, as happened to a whopping 45 kids at the district’s least desirable and typically lowest-performing school (which, shocker, saw its 6th grade enrollment drop from 176 to 147). Or, as in the case of a Diversity Plan supporter who helped design the middle school algorithm in the first place, when your daughter gets her 10th-ranked pick and the school is far away. Or when the algorithm spits out two different middle-school destinations, 40 minutes from one another, for your twins.

No matter: As a class, you will be treated by the people whose salaries you pay as the kind of monsters who are “not interested in building diverse and supportive school communities.”

As I wrote in September, “In what has become the education playbook for the city of New York, and a political tactic that threatens to jump the banks from Blue State America to some policy terrain near you, activists, government officials, and even journalists are recklessly deploying the scarlet letter of racism to clear out potential dissent.”

For now, the educational establishment is too busy high-fiving itself to spend too much time slamming the door behind noncompliant parents. Instead, in an odd but telling example of goalpost-shifting, the consensus brag is that the year-over-year percentage of Caucasian kids in the district remained the same: 31 percent. Lander titled his piece “The white flight that wasn’t.” The enrollment numbers, activist Miriam Nunberg told The Wall Street Journal, “tests the myth there will be white flight if you create heterogeneous groupings.”

What makes the white flight formulation particularly interesting to me is that in all the local school meetings I slogged through, I have never heard the phrase used by anyone except advocates for the Diversity Plan, usually as a straw man for the perceived unsavoriness of any skeptics’ motives.

When a parent at one gathering asked a Community Education Council member what was being done to retain families who were given designations they didn’t like, he shot back, “I don’t know how you would address the question without it sounding like, ‘What are you going to do about white flight?’ Honestly, that is basically what the question is, and I don’t know how you can ask a panel of people who have spent the last two years working on a Diversity Plan how we are going to cater to the parents who reject the idea of diversity.”

When I mentioned at one elementary school rezoning breakout session that forcing 5-year-olds to travel long distances would create “a lot of unhappy parents,” one woman snapped back at me, “You mean a lot of unhappy white parents!” Which I in fact did not mean.

When Lander at the beginning of this school year again declared victory for the Diversity Plan, he started off his Buzzfeed piece with a meditation on how “Segregation is central to the ideology of white supremacy and the reproduction of America’s racial caste system,” then went on to lament that “Integration efforts are often met with backlash as white (and now sometimes Asian) parents feel something is being taken from them.”

Such accusatory generalizations discourage public participation in policymaking. Whether they end up discouraging parents from enrolling their kids in local public schools, after years of steady increases, remains to be seen. Yesterday’s partial numbers tell us about representation, but not the lived-in experience of education. On the core question of whether students and schools will improve, it is far too early to declare either victory or defeat.

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Dollface Mines Humor from the Loneliness of Single Women

  • Dollface. Available now on Hulu.
  • Mad About You. Available Wednesday, November 20, on Spectrum.

Her, sitting at a pleasant outdoor café: “How are the huevos rancheros?”

Him: “They’re pretty good.”

Her: “Can I have a bite?”

Him: “I don’t love you anymore.”

Talk about getting to the point! The first 60 seconds of Hulu’s new sitcom Dollface sets the stage for everything to come—a woman’s bumbling attempts to reactivate her female friendships after years of single-minded preoccupation with a boyfriend.

Intended as a modern comic spin on Ibsen’s A Doll’s House, Dollface is funny enough, though it mostly misses the feminist boat. It more closely resembles a little-watched FXX surrealist comedy of sexual manners called Man Seeking Woman, in which clueless characters conversed regularly with their own ids as they plotted blundering romantic strategy.

Kat Dennings, who starred for six seasons as a penniless waitress at a greasy-spoon restaurant in the hilariously potty-mouthed CBS sitcom 2 Broke Girls, plays Jules, a marketer at a weird and largely undefined company whose leading product is a crystal butt-plug called a kundu stone. (Which, I’m amazed to discover, seems to be entirely fictional.)

She’s completely unprepared for her boyfriend’s drive-by breakup, and even less so for the realization that the shirt she’s wearing, the car they came in, the apartment they live in, and even their beloved dog all belong to him.

Worse yet, she’s been catapulted onto a bus ride full of cat ladies bound for their lonely destiny (unless they get off at the Reboundtown stop, where they’ll be greeted by a whiny nerd: “I live with my mom. Wanna get married?”)

The lesson of all this, the female bus driver warns Jules, is that “relations with other women are sacred and necessary. In today’s world, the bonds of sisterhood are all you have to turn to.” Easier preached than done: Jules’ attempts to reunite with a couple of college girlfriends are rudely snubbed.

“Other people know how to run their lives and take advice and have friends, and for some reason, I can’t,” Jules broods. But her problems stem most from general timidity rather than gender oppression; there are plenty of men who, like Jules, are bored by small talk, don’t mix well and are frustrated that the false intimacy of social media doesn’t often morph into the real thing. Believe it or not, Dollface producers, men get lonely too.

But as long as you watch to be entertained rather than woke, you’ll be fine. Dennings, if a little less slobby than she was on 2 Broke Girls, is no less funny. Dollface has plenty of scabrous wisecracks about a Kardashianized West L.A. world filled with high-octane air-kissing and nail-baring fights over the brunchtime merits of mimosas vs. bloody marys. And party patter like this: “Your skin is luminous! What are you using? Placenta?”

If Dollface is a modernization of Ibsen, Mad About You is a modernization of … well, Mad About You,  NBC’s killing-time-between-Seinfeld-and-Friends 1992-1999 sitcom about upscale post-twentysomething yuppies creeping toward what Baby Boomers (and the show’s theme song) used to call the show’s the Final Frontier—parenthood and middle age.

Now Mad About You, revived by the Spectrum cable and streaming service, is the latest of the television remakes, reboots and regurgitations that dominate TV these days.

In this version, Paul Reiser and Helen Hunt are empty-nesters, creeping toward old age and the final Final Frontier. They are as amiable as ever, and the show even has a sense of humor about itself. “I swear to God I didn’t recognize them when they walked in,” exclaims Hunt in the first scene. “When is the last time we saw them?”

But like a lot of other aging couples, Reiser and Hunt are not quite as funny as they think. The opening episode, in which their 17-year-old daughter Mabel (Abby Quinn), leaves for college—at NYU, five whole blocks from their apartment—often seemed to contain subliminal footage of motionless horses being beaten, particularly in an endlessly repetitive joke about an old movie featuring dogs and spaghetti and kissing.

Mad About You cultists will be enthralled—well, pleased—about the presence of some of the old friends, relatives and sidekicks, including John Pankow and Richard Kind. Not present, alas, is the spacey and inept waitress Ursula, so popular in first go-round that she elevated Lisa Kudrow into a co-starring role on Friends. How long do we have to wait for a reboot of that?

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via IFTTT

Dollface Mines Humor from the Loneliness of Single Women

  • Dollface. Available now on Hulu.
  • Mad About You. Available Wednesday, November 20, on Spectrum.

Her, sitting at a pleasant outdoor café: “How are the huevos rancheros?”

Him: “They’re pretty good.”

Her: “Can I have a bite?”

Him: “I don’t love you anymore.”

Talk about getting to the point! The first 60 seconds of Hulu’s new sitcom Dollface sets the stage for everything to come—a woman’s bumbling attempts to reactivate her female friendships after years of single-minded preoccupation with a boyfriend.

Intended as a modern comic spin on Ibsen’s A Doll’s House, Dollface is funny enough, though it mostly misses the feminist boat. It more closely resembles a little-watched FXX surrealist comedy of sexual manners called Man Seeking Woman, in which clueless characters conversed regularly with their own ids as they plotted blundering romantic strategy.

Kat Dennings, who starred for six seasons as a penniless waitress at a greasy-spoon restaurant in the hilariously potty-mouthed CBS sitcom 2 Broke Girls, plays Jules, a marketer at a weird and largely undefined company whose leading product is a crystal butt-plug called a kundu stone. (Which, I’m amazed to discover, seems to be entirely fictional.)

She’s completely unprepared for her boyfriend’s drive-by breakup, and even less so for the realization that the shirt she’s wearing, the car they came in, the apartment they live in, and even their beloved dog all belong to him.

Worse yet, she’s been catapulted onto a bus ride full of cat ladies bound for their lonely destiny (unless they get off at the Reboundtown stop, where they’ll be greeted by a whiny nerd: “I live with my mom. Wanna get married?”)

The lesson of all this, the female bus driver warns Jules, is that “relations with other women are sacred and necessary. In today’s world, the bonds of sisterhood are all you have to turn to.” Easier preached than done: Jules’ attempts to reunite with a couple of college girlfriends are rudely snubbed.

“Other people know how to run their lives and take advice and have friends, and for some reason, I can’t,” Jules broods. But her problems stem most from general timidity rather than gender oppression; there are plenty of men who, like Jules, are bored by small talk, don’t mix well and are frustrated that the false intimacy of social media doesn’t often morph into the real thing. Believe it or not, Dollface producers, men get lonely too.

But as long as you watch to be entertained rather than woke, you’ll be fine. Dennings, if a little less slobby than she was on 2 Broke Girls, is no less funny. Dollface has plenty of scabrous wisecracks about a Kardashianized West L.A. world filled with high-octane air-kissing and nail-baring fights over the brunchtime merits of mimosas vs. bloody marys. And party patter like this: “Your skin is luminous! What are you using? Placenta?”

If Dollface is a modernization of Ibsen, Mad About You is a modernization of … well, Mad About You,  NBC’s killing-time-between-Seinfeld-and-Friends 1992-1999 sitcom about upscale post-twentysomething yuppies creeping toward what Baby Boomers (and the show’s theme song) used to call the show’s the Final Frontier—parenthood and middle age.

Now Mad About You, revived by the Spectrum cable and streaming service, is the latest of the television remakes, reboots and regurgitations that dominate TV these days.

In this version, Paul Reiser and Helen Hunt are empty-nesters, creeping toward old age and the final Final Frontier. They are as amiable as ever, and the show even has a sense of humor about itself. “I swear to God I didn’t recognize them when they walked in,” exclaims Hunt in the first scene. “When is the last time we saw them?”

But like a lot of other aging couples, Reiser and Hunt are not quite as funny as they think. The opening episode, in which their 17-year-old daughter Mabel (Abby Quinn), leaves for college—at NYU, five whole blocks from their apartment—often seemed to contain subliminal footage of motionless horses being beaten, particularly in an endlessly repetitive joke about an old movie featuring dogs and spaghetti and kissing.

Mad About You cultists will be enthralled—well, pleased—about the presence of some of the old friends, relatives and sidekicks, including John Pankow and Richard Kind. Not present, alas, is the spacey and inept waitress Ursula, so popular in first go-round that she elevated Lisa Kudrow into a co-starring role on Friends. How long do we have to wait for a reboot of that?

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