The Volokh Conspiracy

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

Friends, civil forfeiture is a plague on honest folks in many a jurisdiction around the country. But Indiana may be the rottenest, thanks to a unique feature of state law that allows counties to deputize private-sector lawyers to act as prosecutors—and pocket a cut of whatever they forfeit. Indeed, nearly half of the state's 92 counties employ such for-profit prosecutors. Head on over to Bloomberg Law to read about IJ's class action challenge to the law.

• Man, who has a felony record and thus cannot possess a firearm, shoots himself in the leg. Haverhill, Mass. police get a warrant to search his home and find guns. But wait! The warrant referenced the second floor, and the man lives on the third. Suppress the evidence? First Circuit: Nope. The warrant may have referenced the second floor, but it wasn't exactly "an exemplar of grammatical precision." Officers could have thought they had the go-ahead to search the third.
• Pennsylvania has a law that requires that petition circulators who gather signatures to place candidates on the ballot be Pennsylvania residents who are members of the same political party as the candidate. Two out-of-state petition circulators from the 2020 election sue, alleging First Amendment violations. District court: The law is unconstitutional, as applied to you, and only for the 2020 election. Third Circuit: We can expand that to the both of you for future elections … but nobody else!
• Coast Guard lieutenant is arrested on drug and gun charges. Further investigation of his computer reveals he is a white nationalist who had penned a manifesto in which he discussed his dreams of "a way to kill almost every last person on the earth." His browser history also reveals an obsession with the manifestos of mass killers, the manufacture of explosives, precision long-distance shooting, and the whereabouts of various federal officials. Fourth Circuit: More than enough evidence to conclude that his illegal arsenal was acquired with the intent of promoting an act of terrorism, justifying a sentencing enhancement.
• In this Fourth Circuit case, the court considers whether a criminal defendant who entered a conditional guilty plea may challenge the district court's denial of a suppression motion (he can, over a dissent). But the most important lesson from the case is that, when approached by Richmond, Va. police who said "Yo! Let me talk to you real quick," the defendant said "Nah" and kept walking, which is the correct response.
• Ten years ago, West Virginia property owners brought a trespass action against a pipeline company. Seven years ago, a jury found in their favor. And, finally, just this week, the Fourth Circuit ruled that they are entitled to . . . a remand to see if they can present any evidence of damages.
• In 2021, South Carolina enacted a "fetal heartbeat" law, which effectively bans abortions after the sixth week of pregnancy. Abortion providers sue. District court: The law is unconstitutional under Supreme Court precedent. Gov't: Of course this law is unconstitutional, but the providers lacked standing. Fourth Circuit: The Supreme Court has said abortion providers have standing, so they have standing. (For severability junkies, there's also some stuff about severability in there too. Bon appétit!)
• Allegation: Texas prison officials imposed a harsher disciplinary sentence on prisoner who'd previously filed a grievance against one of the officials on the disciplinary committee. District court: Officials' motion for summary judgment granted. Fifth Circuit (2016): Reversed. District court: Officials' motion for summary judgment granted, again. Fifth Circuit (2022): Reversed in part. The district court must consider all of the prisoner's arguments, and he may well be entitled to punitive damages.
• Former Chief Magistrate Judge in Detroit allegedly warned fellow state-court judges that their practices violated state and federal law and, later, that the ACLU was considering filing a lawsuit. The ACLU sues, and the judge is fired. First Amendment retaliation? Sixth Circuit: Nope. Her speech was made in her official, not personal, capacity, so no claim.
• In which the Sixth Circuit gently reminds Saginaw County, Mich. (and 26 other Michigan counties) that sovereign immunity is restricted to, well, sovereigns. So no getting out of a class action alleging that the counties have a habit of foreclosing on, for instance, homes worth $50k because of a delinquent $3k tax bill and then keeping the surplus.
• In which a Chicago police officer guesses the address of a suspected felon-in-possession (based off an informant's imprecise information), gets a search warrant for the wrong address, ends up searching the correct address, causes the target to spend four months in jail, but ultimately has the evidence suppressed because the warrant sought to search somewhere else. Seventh Circuit: There's evidence that you needed to do better, officer. Some of the claims about this are going to trial.
• In which Chicago police officers misunderstand the address of a suspected drug dealer, get a search warrant for an ambiguous address, end up searching the wrong address, then destroy footage that might have explained what happened. Seventh Circuit: There's no evidence you did wrong, officers. None of the claims about this are going to trial.
• What do you call it when someone gives you advice about your diet? Annoying? Intrusive? If you're this Eleventh Circuit panel, you call it the "professional conduct of dieticians" outside the protection of the First Amendment. (This is an IJ case.)

As you've probably gathered, IJ doesn't take too kindly to barriers to work. But did you know that even state governments think a lot of them are nonsense? For our latest report, Too Many Licenses?, IJ collected nearly 500 government studies of proposed licenses, known as "sunrise reviews." No surprise: The vast majority of proposals were backed by groups with an interest in fencing out competition. Perhaps a surprise: The vast majority of government reviews saw through this and said "no thanks" to licensing. The lesson? With or without sunrise reviews, legislators everywhere should greet licensing with healthy skepticism. Curious readers can find the report here. Curiouser readers can learn what sunrise reviews say about 200+ occupations in our sunrise archive here.

Assuming that Judge Ketanji Brown Jackson is confirmed, there will be yet another D.C. Circuit vacancy. Would President Biden nominate Justice Leondra Kruger of the California Supreme Court? Presumably, that confirmation would put her in a much stronger position to fill the next Supreme Court vacancy. In hindsight, Kruger may have gotten burned by twice-declining the Solicitor General nomination. Moving to the swamp could put her in a better stead with the administration.

Shortly after Justice Breyer announced his retirement, I suggested that President Biden should pick a new "Roberts whisperer"—a jurist willing to work hand-in-hand with their colleagues to temper the court's conservatism. Perversely for Biden, a more-liberal nominee will make the court more conservative. A more middle-of-the-road justice can keep the court closer to the center.

Will Justice Jackson be that bridge-builder?

Justice Leandra Kruger's surrogates suggested to David Lat that Justice Jackson could not fill that role:

If this were a 5-4 Court in favor of liberals, Judge Jackson would be a fine choice. She would be a powerful voice on the left—à la Justice Sonia Sotomayor, whom many progressives regard as "the conscience of the Court"—and by staking out the far left, she might tug the entire Court leftward and make the other liberals look more moderate.

But we don't have a 6-3 or even 5-4 Court in favor of the liberals. Instead, we have a 6-3 Court dominated by conservatives. And this calls for an entirely different type of justice, with an entirely different ideological bent.

When you're in the minority to that degree, you don't want an ideological bomb-thrower; you want a bridge-builder. You don't want a hard-core liberal or progressive; she doesn't have the votes to advance her views anyway, and her left-wing views might just alienate her more conservative colleagues.

Instead, you want a judge who understands conservatives and has respect from conservatives. You want a judge who can occasionally persuade a conservative or two to join a moderate or even liberal position, through the strength of her reasoning, the power of her writing, and the charm of her personality. Based on her track record at the California Supreme Court, where she has demonstrated her talent for building consensus and coalitions, Justice Kruger is the one that you want.6

You want a judge who understands the subtle strategic aspects of serving on a sizable appellate court. On occasion, and especially when the court is dominated by the other side, this might require "damage control"—e.g., cobbling together a narrow majority for a position that you don't love, but one that's better than the alternative. This is also something that Justice Kruger understands, since for the first five years of her seven years on the California Supreme Court, Republican appointees outnumbered Democratic ones, 4-3.

Is it possible that Judge Jackson and Judge Childs might excel at this as well? Sure. But Justice Kruger has already demonstrated this ability—you don't need to speculate—and she has far more experience and practice at it. Serving on a seven-member appellate court of last resort, where her side has been outnumbered for most of her tenure, has allowed Justice Kruger to develop the precise skill set she would need at SCOTUS in the year 2022.

Judge Jackson, who has been an appellate judge for less than a year, and Judge Childs, who has never been an appellate judge, haven't had the opportunity to develop these skills in the same way. And the Supreme Court—at least for a liberal justice at this critical point in our nation's history, with abortion, gun control, and affirmative action on the line—is no place for learning on the job.

Justice Breyer was adept at getting the Chief Justice to moderate. What about Justice Jackson?

My most recent working draft for an article is entitled The Roots of Wokeness:  Title VII Damage Remedies as Potential Drivers of Attitudes Toward Identity Politics and Free Expression. Here is the abstract:

How might things be different if Title VII's remedial provisions had not been expanded by the Civil Rights Act of 1991 to allow for the recovery of compensatory and punitive damages, including damages for emotional distress? History doesn't disclose its alternatives, but one possibility to consider is this: While the more generous remedies likely had many effects, both good and ill, ultimately two of the most lasting and consequential effects may have been to encourage the growth of identity politics and to weaken support for American norms of free expression—at least as those norms apply to statements that relate to race, sex, or national origin. We all know that culture affects law. But, one way or another, law affects culture, too.

The article discusses how the original Title VII, passed as part of the Civil Rights Act of 1964, limited successful plaintiffs to recovery for lost wages and/or injunctive relief (both of which were considered equitable remedies and hence not subject to jury trial).   It also provided an unusual benefit: recovery for attorneys' fees. Given that individuals who might otherwise be interested in bringing a racial or sexual harassment complaint often had no desire for an injunction and hadn't lost any wages, these limitations had the effect of keeping the number of harassment lawsuits small.

The Civil Rights Act of 1991 expanded Title VII remedies to include limited punitive damages and recovery for emotional distress (common law remedies that required a right to a jury trial). Members of Congress intended these more generous remedies to be useful to plaintiffs in harassment cases. And given that the number of EEOC harassment complaints skyrocketed, they obviously were useful. But I wonder if those Members of Congress anticipated how their changes to the law would combine with the already existing attorneys' fees remedy, the vaguely defined standard for harassment and in particular its cumulative nature, and the rule prohibiting retaliation against complainants. Taken together, these factors create a powerful incentive—perhaps more powerful than was intended—for employers to come down hard on anything relating to race, sex, or national origin that might cause offense.

In addition, since employer liability often turned on whether the employer exercised reasonable care to prevent racial and sexual harassment, internal harassment prevention bureaucracies and training courses have become de rigueur—even in cases in which the employer thinks they aren't helping to eliminate harassment.

The demand for training courses has created an industry, and the businesses that make up that industry are keen to encourage both employers and employees to believe that even the smallest "micro-aggressions" must be avoided.

Over the course of three decades, all of this has had an effect on workplace culture and on culture in general. On the one hand, on-the-job harassment may be less common.  But Americans—especially younger Americans—are more likely to see everyday issues through lens of race, sex, and national origin and more likely to be skeptical of the value of free expression. And so are their employers.

The article will be published in the Texas Review of Law & Politics.

According to several reports, President Biden has made his selection to replace Justice Breyer. If Biden picks Judge Ketanji Brown Jackson, she would be the third member of the Supreme Court with the last name Jackson. Everyone knows Justice Robert Houghwout Jackson, who served from 1941 through 1954. But most people do not know Justice Howell Edmunds Jackson. He was appointed by President Benjamin Harrison, and served from 1893 through 1895.

There are nine other pairings with two Justices that share the same last name.

1. Chief Justice John Marshall (1801-1835) and Justice Thurgood Marshall (1967-1991)
2. Justice John Rutledge (1790-1791) and Justice Wiley Rutledge (1943-1949)
3. Justice Thomas Johnson (1792-1793) and Justice William Johnson (1804-1834)
4. Justice Samuel Chase (1796-1811) and Chief Justice Salmon Chase (1864-1873)
5. Justice John Marshall Harlan I (1877-1911) and Justice John Marshall Harlan II (1955-1971)
6. Justice Lucius Quint C. Lamar (1888-1893) and Justice Joseph Rucker Lamar (1911-1916) - (they were cousins)
7. Justice Edward Douglas White (1894-1910) and Justice Byron White (1962-1993)
8. Justice John Hessin Clarke (1916-1922) and Justice Tom C. Clark (1945-1967) - (close enough on the spelling)
9. Justice Owen Josephus Roberts (1930-1945) and Chief Justice John C. Roberts (2005-any day now)