The intermediate federal appellate tier
In his introduction of Judge Jeffrey Sutton, Bob Zadek described the Court of Appeals as the second-highest federal court in the country and an appellate-level court, noting that Sutton is the Chief Judge of the United States Court of Appeals for the Sixth Circuit, was nominated by George W. Bush and confirmed by the Senate in April of 2003, and had clerked for Supreme Court Justices Lewis Powell and Antonin Scalia Who Decides? (2022).
Damon Root, discussing the Louisiana casket case, said the state fought the litigation all the way up to the U.S. Court of Appeals, which he described as the level below the Supreme Court and the highest level to which the state could take the case Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
The Louisiana casket case
Root described a Louisiana state law requiring that to sell a casket or coffin, one had to be a fully licensed funeral director, a status that took many hours of study, thousands of dollars in course fees, and embalming roughly 25 dead bodies. He noted that it was legal in Louisiana to be buried without a casket, that there were no requirements as to casket design, and that if one was buried in a casket it did not matter what it was made of and the lid did not have to be nailed down. Monks who had built traditional handmade wooden caskets for their own use began selling them to fund repairs to their abbey, and the state told them they were not licensed funeral directors. The Institute for Justice brought the case, arguing that there was no conceivable justification for the law, which Root described as the legal standard under the deferential precedents. He said the court agreed the law failed the smell test on every possible level. Zadek characterized the law as protecting the income of funeral directors, and Root agreed that protecting funeral directors was the only regulation. Root added that Tennessee and Oklahoma also had these kinds of laws on the books Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Tie votes and the rule below
Gail Heriot explained that a 4-4 decision does not mean the court is stuck: it means that whatever the Court of Appeals decided below is essentially going to be the rule that will apply to that case. She said the Court can in theory ask for reargument when a new justice is appointed and confirmed, but that she suspected some of these cases are going to be 4-4 Gail Heriot on the Significance of Justice Scalia’s Passing (2016).
Passing a case upward
Terry Pell described the challenge of finding clients willing to be part of a high-profile lawsuit that may go to the Supreme Court, and said that in California many teachers were looking for just such a lawsuit amid unhappiness about compulsory union dues; within several months he had 10 to 15 individuals willing to be clients. He said that normally it takes five to seven years from filing before a case gets to the Supreme Court, but that in this case he persuaded the District Court and the Ninth Circuit Court of Appeals to pass the case on as quickly as possible. He explained that the Supreme Court had previously ruled that compulsory dues are constitutional—Zadek identified that as the Abood case in ‘77, which Pell confirmed—and that the Supreme Court is the only court with authority to overrule its own past precedents. Both the District Court and the Ninth Circuit agreed that the case was not for a lower court to decide, effectively deciding the case against the plaintiffs, which is what they asked them to do so they could get to the Supreme Court for a prompt hearing on the merits A Teacher’s Brave Stand Against Her Union – Rebecca Friedrichs and Terry Pell (2017).
Qualified immunity and the circuits
Clark Neily described a case the Supreme Court recently allowed to stand from the Tenth Circuit Court of Appeals, which he said covers the mountain states including Colorado. A young man recorded police conducting a violent arrest—officers punching a person in the face repeatedly to get at drugs they thought were hidden in his mouth—and when the police noticed, they surrounded him and demanded he turn over the recording device so they could delete the video. He relented; the officers failed to delete the video and he turned it over to a TV station, which publicized it. He sued on the theory that he had a constitutional right to record police in public. Neily said the officers had been trained by their own department that citizens have a right to record them in public and must not be interfered with, that about half of the federal circuits’ courts of appeal have said there is a right to record police, and that the Justice Department has sent letters to police departments saying there is a right to record police. But the Tenth Circuit had not yet weighed in, so the officers asserted qualified immunity. Neily said the Tenth Circuit answered that the issue was not clearly established in that jurisdiction and the officers were entitled to a free pass with qualified immunity Judicial Round-Up with Clark Neily (2022).
Neily also said that the Supreme Court has in effect reversed the Enforcement Act of 1871, and that it is not enough for there to be a prior case on the very same facts—the case has to hold as part of its holding that the conduct was wrongful, not release the public official for a different reason, so the bar is very high. He argued that the Fourth Amendment already contains a value-laden term, unreasonable, that provides leeway, and that the Constitution assigns to citizens, not to a judge who was probably a former prosecutor, the determination whether an officer acted reasonably. He cited a law review article by Joanna Schwartz examining whether police stay up at night reading judicial opinions in their jurisdiction, and said the answer is no. Zadek raised the exclusionary rule as the way courts have enforced the Fourth Amendment, and Neily responded with the concept of belt and suspenders: the ability to have evidence excluded and the separate ability to sue the officer for violating the right to be free from unreasonable searches Judicial Round-Up with Clark Neily (2022).
The same account of the Tenth Circuit recording case and the clearly established standard appears in a second episode, where Neily again described the officers’ assertion that the Tenth Circuit had not yet weighed in and the court’s answer of free passes all around Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022).
Across episodes
The excerpts do not show a single question argued across episodes so much as a recurring institutional feature: the Court of Appeals as the tier that decides what stands when the Supreme Court splits 4-4 (Heriot), as the highest forum a state will litigate to (Root), as a court litigants ask to pass a case upward (Pell), as the court whose chief judge explains federalism (Sutton, introduced by Zadek), and as the court whose silence on an issue yields qualified immunity (Neily, in two episodes). The two Neily episodes restate the same Tenth Circuit example and the same clearly established standard without development between them.
What the sources do not cover
The excerpts do not state which state the Louisiana casket case was litigated in beyond Louisiana, which court of appeals heard it, or how it was resolved on appeal. They do not give the name of the Enforcement Act beyond the year 1871, the holding of Abood beyond the constitutional status of compulsory dues, or the outcome of the union-dues case at the Supreme Court. They do not state the name of the young man in the Tenth Circuit recording case, the case name, or the date of the decision, and they do not identify the law review article by title or publication.