Meet the Shortlisters: Raymond Kethledge

Judge Ray Kethledge may not have as much media buzz as his competitors Kavanaugh or Barrett, but he remains one of the frontrunners for a Supreme Court nomination.  His conservative record, alongside excellent credentials and a midwestern background, make him a strong candidate for the nomination.

Vital Statistics

Name: Raymond Michael Kethledge

Age: 51

Current Position: Judge on the U.S. Court of Appeals for the Sixth Circuit (since 2008)

Education: B.A. from the University of Michigan; J.D. from the University of Michigan Law School

Clerkships: Judge Ralph Guy on the U.S. Court of Appeals for the Sixth Circuit; Justice Anthony Kennedy on the U.S. Supreme Court

Prior Experience: Judiciary Counsel to Sen. Spencer Abraham (R-Mich.); Counsel at Ford Motor Company; Private Practice in Detroit and Troy, Mich.

Jurisprudence

Kethledge has served on the U.S. Court of Appeals for the Sixth Circuit since 2008.  In his time, he has authored over 500 opinions, in which he has lain out a conservative-libertarian judicial philosophy.  Here are some of the key cases that Kethledge has decided:

Criminal Law

  • United States v. CarpenterThis case involved a challenge to the use of cell tower locational data, obtained from phone companies without a warrant, to convict a Defendant.  Kethledge wrote for the panel majority in holding that the obtaining of cell tower locational data without a warrant did not violate the Fourth Amendment.  The Supreme Court reversed Kethledge in a 5-4 vote.
  • United States v. GabrionThis case involved a murder that was committed in Michigan.  The defendant was convicted in the federal death penalty trial, and, in the penalty phase, sought to present evidence that the murder was committed in the state of Michigan, not on federal park grounds.  The defendant argued that this location evidence was mitigating as Michigan did not have a death penalty. Kethledge wrote for an en banc court in holding that the evidence was properly excluded as it was “irrelevant to a reasoned moral response to Gabrion’s background, character, and crime.”  In dissent for four judges, Judge Karen Nelson Moore noted that Kethledge’s opinion prevents the defendant from presenting constitutionally relevant evidence based on the judge’s view of its “moral relevance.”

Suits Against Government

  • Wheaton v. McCarthyThis case involved a challenge to the Ohio Department of Medicaid’s policy of not including the spouse as part of a Medicaid benificiary’s families in calculating aid.  Kethledge wrote for the panel in holding that this interpretation was inconsistent with federal law.
  • United States v. NorCal Tea Party Patriots – In declining to grant a writ of mandamus to the IRS blocking the District Court’s discovery order, Kethledge sharply criticized the conduct of the IRS in allegedly discriminating against conservative groups in 501(c)(3) applications.

Civil Law

  • In re Dry Max Pampers Litigation – This case involved a class action suit against Proctor & Gamble Co. (P&G), which produces Pampers diapers.  After a certain kind of Pampers diapers proved to cause severe diaper rash, consumers brought a class action suit against P&G, and the District Court approved a settlement that released $1000 per affected child to all named class members, and included a legal fee of $2.7 million.  Kethledge wrote for the panel majority in rejecting the settlement, finding that it benefited counsel more than the members of the class. Judge R. Guy Cole dissented, stating that Kethledge “does not apply this Court’s established multi-factor tests for settlement fairness and the reasonableness of fee awards. [citations omitted]  Instead, the majority fashions a new test based largely on dicta from other circuits…”

Why Trump Could Choose Kethledge as His Nominee

As a young, strongly conservative judge, Kethledge seems almost tailor-made for a judicial nomination from the Trump Administration.  Furthermore, while he lacks the Harvard/Yale pedigree Trump is seeking, Kethledge still has a Supreme Court clerkship, as well as success as one of the best law schools in the country.  Additionally, sources claim that Kethledge’s interview with the President (always a key criteria) went exceedingly well.

Why Trump Would Not Choose Kethledge as His Nominee

Overall, Kethledge’s record has reflected a libertarian philosophy.  As such, Kethledge has shown a willingness to rule against the government when he perceives that it has exceeded its authority.  This could make Kethledge a more unpredictable presence on the Supreme Court, which may lead Trump to another candidate.

Expected Lines of Attack

Having both ruled for and against the government, Kethledge may draw criticism for his criminal justice rulings both from the left and the right. He will likely also draw criticism for his Carpenter ruling being overturned by the Supreme Court.

Likelihood of Nomination

Kethledge may not have gotten the attention that Kavanaugh and Barrett have, but he is just as likely to get the nomination.  Given his strongly conservative record, impressive credentials, and his favorable interview, we would not be surprised if Kethledge was the ultimate choice.

Meet the Shortlisters: Brett Kavanaugh

Judge Brett Kavanaugh currently serves on the second most powerful court in the country: the D.C. Circuit.  Since 2006, Kavanaugh has served as the intellectual center of the D.C. Circuit’s conservative wing.  This record of jurisprudence has set Kavanaugh to replace the Justice he once clerked for: Justice Kennedy.

Vital Statistics

Name: Brett Michael Kavanaugh

Age: 53

Current Position: Judge on the U.S. Court of Appeals for the D.C. Circuit (since 2006)

Education: B.A. from Yale; J.D. from Yale Law School

Clerkships: Judge Walter Stapleton, U.S. Court of Appeals for the Third Circuit; Judge Alex Kozinski, U.S. Court of Appeals for the Ninth Circuit; Justice Anthony Kennedy, U.S. Supreme Court.

Prior Experience: Solicitor General’s Office, Department of Justice; Associate Independent Counsel, Whitewater Investigation; Private Practice; Associate Counsel and Assistant to the President for President George W. Bush

Jurisprudence

Kavanaugh has served on the U.S. Court of Appeals for the D.C. Circuit since 2006.  During his twelve years on the court, Kavanaugh has authored approximately 270 majority opinions, concurrences, and dissents.  These opinions generally establish Kavanaugh as one of the most conservative judges on the court.

Given the D.C. Circuit’s jurisdiction over many administrative law cases, Kavanaugh has written extensively in evaluating agency regulations and decisions.  For example, after a panel of the D.C. Circuit upheld net neutrality regulations passed by the Federal Communications Commission, Kavanaugh dissented from denial of rehearing en banc, arguing that net neutrality violated both Congress’ grant of power to the agency and the First Amendment.  See United States Telecom Ass’n v. Fed. Commc’ns Comm’n, 855 F.3d 381, 417 (D.C. Cir. 2017).  In another case, Kavanaugh found that the Environmental Protection Agency was statutorily required to consider the costs of emission control in issuing regulations.  White Stallion Energy Cntr. LLC v. EPA, 748 F.3d 1222, 1259 (D.C. 2014).  This holding was ultimately affirmed by the Supreme Court.  Michigan v. EPA, 135 S. Ct. 2699, 192 L. Ed. 2d 674 (2015).

In other cases Kavanaugh:

  • Dissented from a ruling requiring an immigrant minor who sought access to an abortion to be provided one.  Garza v. Hargan, 874 F.3d 735, 755 (D.C. Cir. 2017), cert. granted, judgment vacated sub nom. Azar v. Garza, 138 S. Ct. 1790 (2018).
  • Dissented from denial of en banc rehearing of a decision upholding a requirement that religious organizations not wishing to provide contraceptive coverage for employees participate in the opt out process.  Priests for Life v. U.S. Dep’t of Health & Human Servs., 808 F.3d 1, 14 (D.C. Cir. 2015).
  • Ruled that the structure of the Consumer Financial Protection Bureau (CFPB), which required the President to have cause before dismissing the head, was unconstitutional.  PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75, 165 (D.C. Cir. 2018).  This ruling was overturned by the D.C. Circuit en banc.  881 F.3d 75 (D.C. Cir. 2018).
  • Held that the Anti-Injunction Act barred plaintiffs from challenging the individual mandate of the Affordable Care Act.  Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011).
  • Held the Affordable Care Act did not violate the Origination Clause of the Constitution.  Sissel v. U.S. Dep’t of Health & Human Servs., 799 F.3d 1035, 1049 (D.C. Cir. 2015).

Why Trump Could Choose Kavanaugh as His Nominee

Trump has indicated that he is looking for a nominee with Ivy League credentials and a strong academic record.  Kavanaugh ticks off both boxes. Furthermore, Kavanaugh is generally strongly regarded as a judge and has developed a solidly conservative record on the D.C. Circuit.

Additionally, White House Counsel Don McGahn is particularly focused on Administrative Law when selecting judges.  Specifically, McGahn is looking for judges who oppose deference to administrative agencies and prefer a greater degree of judicial involvement in judging agency policy.  Kavanaugh’s record, more than that of any other shortlister, reflects this hostility to agency deference.

Why Trump Would Not Choose Kavanaugh as His Nominee

Kavanaugh is already facing a lot of pushback from social conservatives, who argue that his record shows an insufficient commitment to overturning Roe v. Wade.  Additionally, some senators have pushed back regarding Kavanaugh’s opinion in the Affordable Care Act cases, arguing that Kavanaugh failed to overturn the Act when he had a chance.

Expected Lines of Attack

While Kavanaugh is currently facing criticism from social conservatives, it is unlikely that such criticism would continue in a sustained fashion if he was selected as the nominee.  Rather, if nominated, Kavanaugh is more likely to face criticism from the left, who will criticize his willingness to overturn regulations (that they would argue are) needed to protect health and safety.  Kavanaugh may also be attacked for his work as part of the Whitewater Investigation, in the Bush Administration, and for writings on executive power and authority.

Likelihood of Nomination

Kavanaugh is likely the preferred candidate of White House Counsel Don McGahn.  In general, he is a candidate who is likely to unite the Republican caucus and has the best chance (of the current shortlisters) of securing Democratic support.  As such, despite the social conservative pushback, I expect Kavanaugh to be a strong contender for the nomination.

Meet the Shortlisters: Amy Coney Barrett

Judge Amy Coney Barrett has undergone a meteoric rise.  On the bench for less than a year and having practiced law for only two, Barrett is now a leading contender for the U.S. Supreme Court.  In the jockeying among various candidates on the shortlist, Barrett is the favorite of social conservatives, which may both hurt and assist in the nomination process.

Vital Statistics

Name: Amy Vivian Coney Barrett

Age: 46

Current Position: Judge on the U.S. Court of Appeals for the Seventh Circuit (since 2017)

Education: B.A. from Rhodes College; J.D. from Notre Dame Law School

Clerkships: Judge Laurence Silberman, U.S. Court of Appeals for the D.C. Circuit; Justice Antonin Scalia, U.S. Supreme Court

Prior Experience: Professor of Law at Notre Dame Law School from 2002 to 2017

Jurisprudence

Of all of Trump’s shortlist picks, Barrett has the least amount of judicial experience.  She has served on the U.S. Court of Appeals for the Seventh Circuit since October 2017, and has never been a judge before.  In her eight months on the bench, Barrett has authored just nine opinions, only one of which drew a dissent. Her opinions are outlined below:

Criminal

  • Schmidt v. FosterThis was a collateral challenge to the defendant’s murder conviction.  At his trial, the defendant had sought to use a provocation defense. To ensure that the defendant had an evidentiary basis for the defense, the trial judge interviewed him in an ex parte hearing, with the defense attorney present but unable to participate.  On habeas review, the majority of the Seventh Circuit overturned the conviction, finding that preventing the defendant from accessing his counsel during the ex parte hearing violated his rights under the Sixth Amendment.  Barrett dissented, arguing that there was no evidence that the defendant’s rights were violated.
  • Perrone v. United States – The defendant sought to withdraw a plea agreement he had made, arguing that his counsel had been deficient.  The defendant argued that his counsel should have informed him that the government needed to show that his distribution of cocaine was the but-for cause of the victim’s death.  Barrett rejected this argument, noting that, under the Strickland standard, the defendant would be unable to show that his deficient counsel prejudiced him.
  • United States v. Barnes – The defendant, in this case, sought to challenge his sentence, arguing that the court incorrectly used his local marijuana conviction to enhance his sentence.  Barrett rejected this argument, noting that the defendant failed to properly object to the enhancement, and, as such, forfeited the claim.

Civil

  • Wisconsin Central Ltd. v. TiEnergy, LLC.This case involved a suit to recover demurrage (statutory fees imposed when rail cars are unduly detained).  After a Wisconsin Central car was detained at TiEnergy’s facility, Wisconsin Central filed suit to recover the demurrage incurred.  Barrett wrote for the panel in finding that TiEnergy needed to reimburse the demurrage fees.
  • Goplin v. WeConnect, Inc. – This case turned on whether the plaintiff-employee was bound by an arbitration agreement in resolving his Fair Labor Standards Act (FLSA) claim against defendant-employer.  Barrett ruled that the arbitration agreement did not control, as the company mentioned in the agreement was AEI, not WeConnect. Barrett also rejected the defendant’s argument that AEI was merely the former name of WeConnect.
  • Fiorentini v. Paul Revere Life Insurance Co.The plaintiff, a business owner, received total disability coverage through insurance while undergoing cancer treatment.  After being cancer-free for five years, the plaintiff returned to work, and the total disability coverage ceased. Plaintiff filed suit for breach of contract, arguing that the side effects from the cancer treatment still left him disabled under the insurance agreement.  Barrett disagreed, finding that the plaintiff was able to conduct most of the essential functions of his position, and, as such, he was not totally disabled.
  • Dalton v. Teva North America – The plaintiff sued the manufacturer of an intrauterine device (IUD) after it broke during its removal.  Barrett affirmed the dismissal of the plaintiff’s claims, noting that Indiana law requires the use of expert evidence to prove causation, and the plaintiff had failed to present expert evidence.
  • Boogard v. Nat’l Hockey League – This was a wrongful death action brought by parents of a NHL player who died of a drug overdose.  Barrett affirmed the dismissal of plaintiffs’ claims, noting that the plaintiffs had failed to respond to the defendant’s 12(b)(6) motion, and had, in doing so, forfeited their claims.
  • Webb v. Financial Indus. Regulatory Auth. – This case involved a breach of contract action brought against FINRA based on the failure to train arbitrators.  Barrett wrote for the panel majority in dismissing the claim, finding that the amount in controversy requirement was not satisfied for diversity jurisdiction.  Judge Kenneth Ripple dissented, arguing that, accepting the plaintiffs’ claims, the amount had been satisfied.
  • Walton v. EOS CCAThis suit challenged a debt collector’s practices under the Fair Debt Collection Practices Act.  Barrett held that the collector had met their requirements under federal law.

 

Academic Writing

As a law professor for sixteen years before she joined the bench, Barrett was fairly prolific in detailing and explaining her view of the law.  In her academic writings, Barrett occasionally took on controversial positions.

Most notably, in 2003, Barrett published an article in the University of Colorado Law Review calling into question the application of stare decisis in certain cases.  The article, titled Stare Decisis and Due Process argues that, just as the due process clause limits the application of issue preclusion (or collateral estoppel), it should similarly limit the application of stare decisis.  Barrett argues that a more flexible application of stare decisis is not only consistent with history, but would not impair the appropriate value of precedent.  Barrett was questioned on this “flexible” view of stare decisis during her confirmation hearings, and the issue is likely to come up again if she is elevated.

Additionally, in an article titled Catholic Judges in Capital Cases, Barrett debates whether a Catholic judge would be required to recuse themselves in capital cases based on their religious objections to the death penalty.  Barrett’s ultimate conclusion in the article is as follows:

“Judges cannot – nor should they try to – align our legal system with the Church’s moral teaching whenever the two diverge.  They should, however, conform their own behavior to the Church’s standard.”

This conclusion led to criticism suggesting that Barrett was advocating that a judge base their decisions on church policy rather than the law.  Such criticism was, in turn, dismissed by some commentators as anti-Catholic.

Why Trump Could Choose Barrett as His Nominee

In his nominee, Trump is seeking someone with Ivy League credentials and a long academic record.  While Barrett is not an Ivy League alumnus, as a Supreme Court clerk, her credentials rival those of any Yale or Harvard graduate.  Furthermore, Barrett has a wider and stronger academic record than any of Trump’s other finalists.

Furthermore, Barrett’s selection makes sense politically.  First, Barrett is a woman, and thus, harder to caricature as a conservative extremist.  Second, Barrett has strong support from social conservatives, a key constituency in the Supreme Court fight.  Third, Barrett is from Indiana, putting Sen. Joe Donnelly (D-Ind.) in an impossible position.  If he opposes Barrett, he risks alienating the center-right voters he needs to win re-election.  If he supports Barrett, he risks alienating his own base, who he also needs.  In other words, a Barrett pick would vastly increase the chances of Donnelly losing re-election, and, as such, of Republicans holding the Senate.

Why Trump Would Not Choose Barrett as His Nominee

There are three main reasons why Barrett may not be chosen as the nominee.  First, Barrett does not yet have the requisite level of experience for the Supreme Court.  Republicans are still wary from the nomination of Justice David Souter (an expected conservative who became a reliably liberal vote) and may seek stronger confirmation of Barrett’s jurisprudence before elevating her.  Second, Barrett risks fracturing the Republican caucus.  Republican Sen. Susan Collins has already indicated that she will not back any nominee who opposes Roe v. Wade or who does not commit to stare decisis.  Given Barrett’s writings on the subject, her confirmation may end up being much more difficult than those of other shortlisters.  Third, given the comparative paucity of female Supreme Court candidates on the right, Trump may choose to “save” Barrett for a seat vacated by a female Justice (e.g. Justice Ruth Bader Ginsburg).

Expected Lines of Attack

Barrett has already undergone one grueling confirmation process, receiving just three Democratic votes.  If she is nominated again, expect emphasis on Barrett’s view on Roe v. Wade, given her status as the likely fifth vote on rehearing the case.

Likelihood of Nomination

Had the nomination come out this week, I’d have expected Barrett to be the nominee.  However, a brutal series of attacks by social conservatives on expected frontrunner Brett Kavanaugh may have had the side-effect of weakening Barrett as well.  Nevertheless, given the political benefits of nominating Barrett,a Barrett nomination should be no surprise.

Meet the Shortlisters: Thomas Hardiman

Judge Thomas Hardiman was almost nominated to the Supreme Court last year to replace Justice Scalia.  Hardiman, who sits on the U.S. Court of Appeals for the Third Circuit, was feted for his “blue-collar credentials” but was ultimately overlooked for the more privileged Judge Neil Gorsuch.  This time around, Hardiman is once again a shortlister for a Supreme Court appointment.

Vital Statistics

Name: Thomas Michael Hardiman

Age: 52 (53 in five days)

Current Position: Judge on the U.S. Court of Appeals for the Third Circuit (since 2007)

Education: B.A. with Honors from the University of Notre Dame; J.D. from Georgetown University Law Center

Clerkships: None

Prior Experience: Private Practice in Washington D.C. & Pittsburgh 1989-2003; Judge on U.S. District Court for the Western District of Pennsylvania 2003-2007.

Jurisprudence

Hardiman is currently a judge on the U.S. Court of Appeals for the Third Circuit, where he has served since 2007 (and previously served from 2003 to 2007 on the U.S. District Court for the Western District of Pennsylvania).  On the Third Circuit, Hardiman has authored about 600 opinions, including around 30 that sparked a concurrence or dissent. Here are some key opinions that reflect Hardiman’s judicial philosophy on constitutional issues:

First Amendment

 

  • B.H. ex rel. Hawk v. Easton Area School District – The Easton Area School District banned students from wearing breast cancer awareness bracelets that stated “I ♥ Boobies.”  In response, students brought suit under the First Amendment and the Third Circuit struck down the ban on a 9-5 vote.  In dissent, Hardiman noted that, in his opinion, it was “objectively reasonable to interpret the bracelets, in the middle school context, as inappropriate sexual innuendo and double entendre.”
  • Kelly v. Borough of Carlisle – In a civil rights action, the plaintiff argued that he was unlawfully arrested for filming a police officer during a traffic stop.  Writing for the panel, Hardiman found that, if a First Amendment right to film a police officer existed, it was not clearly established, and that the arresting officer was protected by qualified immunity in the case.
  • Lodge No. 5 of Fraternal Order of Police v. Philadelphia – In a First Amendment challenge, Hardiman held that the City of Philadelphia could not bar police officers from making campaign contributions to the PAC of the police union.

Second Amendment

  • Drake v. Filko – Under New Jersey law, individuals seeking to carry handguns in public must demonstrate a “justifiable need to carry a handgun.”  A 2-1 vote of the Third Circuit upheld this requirement against a Second Amendment challenge.  In dissent, Hardiman argued that the law violated the Second Amendment, arguing that the Supreme Court’s decisions in DC v. Heller and McDonald v. Chicago extend the right to bear firearms beyond the home.

Right to Privacy

  • Florence v. Bd. of Chosen Freeholders – This case involved the challenge to the policy of strip searching all arrestees, regardless of how minor the offenses were.  Hardiman wrote for the panel in upholding the policy, holding that officials may strip-search all arrestees even without suspicion of carrying any contraband.  This ruling was upheld by the U.S. Supreme Court on a 5-4 vote.

LGBT Rights

  • Prowel v. Wise Business Forms, Inc. – This case involved a Title VII gender stereotyping claim brought by a homosexual employee who alleged severe and pervasive harassment from coworkers.  In response, the Defendant argued that the employee was attempting to claim discrimination based on sexual orientation, which is not cognizable under Title VII.  Hardiman ruled that the employee’s claim was based, not on discrimination based on sexual orientation, but rather on gender stereotypes, finding “no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not.”

Why Trump Could Choose Hardiman as His Nominee

Hardiman was almost the Supreme Court nominee last year because, in many ways, he was (and remains) a politically sound nominee.  He is from Pittsburgh in the Rust Belt, has a (relatively) less-connected background, and has the support of Judge Maryanne Trump Barry, the President’s sister.  Furthermore, Hardiman has a fairly conservative record on the federal bench, while also having two unanimous confirmations under his belt. Additionally, choosing Hardiman as the nominee may put pressure on Democratic Senator Bob Casey, who may choose to back his home-state nominee.

Why Trump Would Not Choose Hardiman as His Nominee

In his current nominee, Trump is looking for ivy league pedigrees and academic writings.  Hardiman doesn’t bring either to the table. Furthermore, Hardiman’s opinion in Prowel may alienate social conservatives.

Expected Lines of Attack

Hardiman’s judicial record can be mined for opposition.  Opponents may attack Hardiman, for example, for permitting the strip searching of all arrestees, even those charged with minor violations.  They may also raise his dissent in Easton and his opinion in Kelly to suggest that Hardiman would defer to government judgments on First Amendment restrictions.

Additionally, gun control advocates are likely to attack Hardiman as a Second Amendment absolutist, based on his dissent in Drake and his view that Heller and McDonald establish a right to bear firearms outside the home (a right not yet endorsed by the U.S. Supreme Court).

Likelihood of Being Nominated

Despite the ringing endorsement of Judge Barry, Hardiman was not chosen for the Supreme Court last term.  His chances are, if anything, slightly worse this time around. Supreme Court selections are ultimately about chemistry as much as they are about ideology.  In 2009, President Obama chose then 2nd Circuit Judge Sonia Sotomayor based largely on Sotomayor’s strong performance in her personal interview.  Given that Trump has already overlooked Hardiman once, his odds may not be as high as those of fresher faces.

Meet the Shortlisters: Amul Thapar

This is the second time that Judge Amul Roger Thapar has been considered by President Trump for a Supreme Court appointment.  Last year, Thapar was interviewed by Trump and White House Counsel Don McGahn for the seat opened by Justice Scalia’s death, despite only being a District Court judge at the time.[1]  Shortly after, Thapar was nominated to the U.S. Court of Appeals for the Sixth Circuit (Trump’s first lower court judicial nominee) and was confirmed on a party-line 52-44 vote.

Vital Statistics

Name: Amul Roger Thapar

Age: 49

Current Position: Judge on the U.S. Court of Appeals for the Sixth Circuit since 2017

Education: B.S. from Boston College; J.D. from U.C. Berkeley School of Law

Clerkships: Judge S. Arthur Spiegel on the U.S. District Court for the Southern District of Ohio; Judge Nathaniel Jones on the U.S. Court of Appeals for the Sixth Circuit

Prior Experience: Associate at Williams & Connolly; Assistant U.S. Attorney for the Southern District of Ohio; U.S. Attorney for the Eastern District of Kentucky; U.S. District Judge for the Eastern District of Kentucky

Jurisprudence

Thapar has served on the U.S. Court of Appeals for the Sixth Circuit since May 25, 2017.  In the past thirteen months on the Sixth Circuit, Thapar has authored approximately forty opinions.  These opinions are mostly unanimous, with only two sparking a dissent by a panel judge.[2]  In one case, Thapar reversed summary judgment against plaintiffs in a civil rights case for a warrantless entry, but held that a malicious prosecution claim was forfeited.[3]  In dissent, Judge Eric Clay noted:

“While it is true that Plaintiffs could have done a better job presenting their argument as to this claim, the brief is not so lacking in support and development as to consider the argument forfeited or waived. Indeed, Plaintiffs discussed the issue for four pages, throughout which they cited the standard for a malicious prosecution claim and identified sections of the record purportedly showing that elements of the claim are disputed. Plaintiffs also identified statements in the police report that they contend are false. Therefore, Plaintiffs have done enough in their brief for their argument not to be considered forfeited or waived.”[4]

In criminal and civil rights cases, Thapar has generally struck a conservative tone.  For example, in Fields v. Henry County, Tenn. (decided while he was sitting by designation), Thapar held that the Constitution did not prohibit the automatic detention of domestic violence arrestees, holding that there is no constitutional right to speedy bail.[5]  In another notable case, while sitting by designation on the Sixth Circuit, Thapar held that a defendant’s purchase of a one-month subscription to a child pornography website sixteen months earlier created probable cause for a search of his home.[6]  Thapar’s reasoning was lambasted in dissent by Judge Karen Nelson Moore, who suggested that Thapar had a “radical view of probable cause” that was “far more expansive than any circuit had taken to date.”[7]

Thapar has, on occasion, issued decisions that could be considered more “liberal.”  For example, Thapar held that police officers were protected by the First Amendment in exposing illegal wiretapping of private conversations conducted by law enforcement.[8]  In another case, Thapar affirmed the suppression of evidence where the searching officer did not abide by the conditions of the anticipatory warrant issued.[9]

Before his elevation, Thapar served on the U.S. District Court for the Eastern District of Kentucky for nine years.  During this time, Thapar maintained a fairly conservative record, particularly on criminal issues.[10]  In civil cases, Thapar also developed a reputation for denying motions for summary judgment in cases where factual disputes required cases to go to the jury.[11]

Notably, as a District Judge, Thapar struck down several canons of the Kentucky Code of Judicial Conduct, including restrictions on holding political fundraisers.[12]  The Sixth Circuit affirmed most of Thapar’s opinion but reversed his striking of the political fundraiser restriction.[13]

Why Trump Could Choose Thapar as His Nominee

By all accounts, Trump is looking for credentialed young conservatives for the Supreme Court.  Thapar meets all three criteria: he has strong academic credentials; is younger than every Supreme Court nominee since Clarence Thomas; and has a relatively conservative record on the bench.  Furthermore, Thapar is strongly supported by Senate Majority Leader Mitch McConnell, and would likely be confirmed smoothly, given his mentor’s strong reputation among the Senate Republican Caucus.  Finally, Thapar would make history as the first Indian American, Asian American, and South Asian American Supreme Court Justice, potentially blunting the effectiveness of attacks painting him as a conservative ideologue.

Why Trump Would Not Choose Thapar as His Nominee

Trump has apparently asked that his nominee have stellar academic credentials and a strong body of academic writings.[14]  In contrast with other shortlisters, Thapar did not attend Harvard or Yale, did not clerk on the U.S. Supreme Court, and has authored just three academic articles in his entire career.

Furthermore, Thapar’s jurisprudence, while conservative, also includes a fair share of liberal anomalies.  This may lead Trump to more “reliably” conservative nominees.

Expected Lines of Attack

If Thapar is nominated, expect ads to focus on his connection to McConnell, who remains significantly less popular than Trump.  Furthermore, Thapar may face criticism for his overturning of canons in Kentucky’s Code of Judicial Conduct, which may be paralleled to the Supreme Court’s ruling in Citizens United.

Likelihood of Being Nominated

Thapar would not be where he is today without the support of Senate Majority Leader Mitch McConnell (R-KY), who was Thapar’s sponsor as he became the first Indian American to serve as U.S. Attorney for a federal district, the first Indian American to serve as an Article III federal judge, and finally, the first Indian American judge on the Sixth Circuit.  As such, one can only assume that the powerful McConnell is (at least partially) responsible for Thapar’s consideration for the Supreme Court.

However, given his limited academic record and his (relatively) unpredictable jurisprudence, I’d predict that Thapar is the least likely of the five finalists to be nominated.


[1] Shane Goldmacher, Eliana Johnson, & Josh Gerstein, How Trump Got to Yes on Gorsuch, Politico, Jan. 31, 2017, https://www.politico.com/story/2017/01/trump-supreme-court-gorsuch-234474.  

[2] See Stein v. Atlas Indus., Inc., No. 17-3737, 2018 WL 1719097, at *6 (6th Cir. Apr. 9, 2018) (Batchelder, J., dissenting) (dissenting from majority opinion reversing dismissal of plaintiff’s ERISA claim); Brenay v. Schartow, 709 F. App’x 331, 337 (6th Cir. 2017) (Clay, J., dissenting) (stating that Plaintiffs did not waive their malicious prosecution claims).

[3] Brenay v. Schartow, 709 F. App’x 331.

[4] Id. at 338 (Clay, J., dissenting).

[5] See Fields v. Henry Cnty., Tenn., 701 F.3d 180, 185 (6th Cir. 2012).

[6] See United States v. Frechette, 583 F.3d 374, 376 (6th Cir. 2009).

[7] Id. at 381 (Moore, J., dissenting).

[8] Kiessel v. Oltersdorf, 459 Fed. Appx. 510 (6th Cir. 2012).

[9] United States v. Perkins, 887 F.3d 272 (6th Cir. 2018).

[10] See Harsh Voruganti, Judge Amul R. Thapar – Nominee to the U.S. Court of Appeals for the Sixth Circuit, The Vetting Room, Apr. 26, 2017, https://vettingroom.org/2017/04/26/judge-amul-r-thapar-nominee-to-the-u-s-court-of-appeals-for-the-sixth-circuit/.  

[11] See Voruganti, supra n. 2.

[12] Winter v. Wolnitzek, 56 F. Supp. 3d 884, 889 (E.D. Ky. 2014).

[13] Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016).

[14] Michelle Mark, Trump Has Narrowed His Supreme Court Nominee Shortlist to 5 Candiates – And There Are Reportedly 3 Qualities the Winner Must Embody, Business Insider, June 30, 2018, http://www.businessinsider.com/trump-supreme-court-nominee-shortlist-3-main-qualities-2018-6.  

Supreme Court Shortlist: Judge Bill Pryor

Two weeks ago, Judge Bill Pryor was the ideal choice to replace Justice Scalia.  Pryor, a judge on the Eleventh Circuit Court of Appeals, had a deeply conservative record on the bench.  Furthermore, he was the protege of Alabama Senator Jeff Sessions, President Trump’s nominee to be U.S. Attorney General.  However, in the last two weeks, Pryor’s chances have faded under attacks from both the left,[1] and the right.[2]  Nevertheless, Pryor has been on Trump’s radar for a long time,[3] and as such, a Pryor nomination cannot be discounted.

Background

William Holcombe Pryor Jr. was born in Mobile, Alabama on Apr. 26, 1962.  Growing up in a Catholic family, Pryor attended Northeast Louisiana University and Tulane University Law School, serving as editor in chief of the Tulane Law Review.  After graduating, Pryor clerked for Fifth Circuit Judge John Minor Wisdom, a civil rights icon.

In 1994, Jeff Sessions, a former judicial nominee himself, was elected to be the first Republican Attorney General of Alabama since reconstruction.  Sessions hired Pryor to be his deputy.  Upon Sessions’ election as a U.S. Senator in 1996, the 34-year-old Pryor became Alabama’s 46th Attorney General.  In 1998, Pryor won election to the position in his own right, narrowly defeating Alabama Supreme Court Justice Terry Butts.  Pryor was subsequently re-elected in 2002 by a wider margin.

In 2001, Alabama Supreme Court Chief Justice Roy Moore unveiled a 5280 lb granite monument to the Ten Commandments at the Supreme Court building.[4]  In response to a lawsuit alleging a violation of the separation of church and state, Judge Myron Thompson ordered the monument to be removed.[5]  After an appeal affirmed, Moore announced his intention to ignore Judge Thompson’s ruling.[6]  The monument was eventually removed after Moore’s colleagues overruled his decision.[7]  Pryor, the Attorney General of Alabama at the time, filed ethics charges against Moore, arguing that his failure to follow the court order violated his oath of office.[8]  Pryor’s prosecution led to Moore’s removal from his position.[9]

On April 9, 2003, Pryor was nominated by President George W. Bush for an Alabama seat on the Eleventh Circuit Court of Appeals.  Pryor’s nomination attracted fierce opposition from liberal groups.[10]  During his confirmation hearing, Pryor was criticized for stating that the Supreme Court’s decision in Roe v. Wade was “an abomination” because it “led to a morally wrong result.”[11]  Pryor was also attacked for filing equating consensual same-sex intimacy with prostitution, adultery, necrophilia, bestiality, incest, and pedophilia.[12]  Due to Pryor’s refusal to disavow his previous statements, Democrats blocked his confirmation through the 108th Congress.

On Feb. 20, 2004, President Bush unilaterally appointed Pryor to the Eleventh Circuit using a recess appointment, which would allow Pryor to serve until the end of 2005.[13]  The Eleventh Circuit dismissed a court challenge to Pryor’s recess appointment.[14] 

Despite the reelection of President Bush and a diminished Democratic Senate minority, Democrats continued to block Pryor’s confirmation.  On May 23, 2005, a bipartisan group of 14 Senators announced a deal that would let Pryor and two other nominees get an up-or-down vote.  Pryor was confirmed by a small 53-45 margin, with 3 Republican Senators opposing his confirmation.

Jurisprudence

In his twelve years on the federal bench, Pryor has authored more than 300 majority opinions (and many more concurrences and dissents).  A review of these opinions confirms his reputation as a firmly conservative jurist.

Frequent Dismissals on Jurisdiction, Standing, and Mootness Grounds

For a dispute to properly be in federal court, the court must have jurisdiction over the subject matter of the case, the parties must have standing to bring suit, and the case must not be moot.  These requirements ensure that federal courts are only addressing disputes that they can actually remedy.  Pryor’s opinions interpret these requirements very stringently, frequently dismissing cases for lack of jurisdiction,[15] standing,[16] or as moot.[17]

In one notable case, Pryor wrote for a District Court panel in holding that Democratic state legislators in Alabama lacked standing to challenge racial gerrymandering.[18]  This opinion was overturned by the U.S. Supreme Court, who held that Pryor’s opinion violated “elementary principles of procedural fairness.”[19]

Narrow Interpretation of Criminal Procedural Protections

The American criminal justice system relies on the principle that the accused is presumed innocent until proven guilty.  This principle is enforced through the protections of the Fourth, Fifth, and Sixth Amendments.  Pryor, however, has interpreted these protections narrowly.

For example, Pryor has repeatedly upheld searches and seizures from Fourth Amendment challenges.[20]  In Castillo v. U.S., Pryor upheld a warrantless search of a defendant enrolled in a pretrial diversion program.[21]  Specifically, Pryor noted, as a matter of first impression, that such searches only needed to be justified by reasonable suspicion, not probable cause.[22]  Judge Robreno, sitting by designation, disagreed on this point, noting that the defendant “cannot be considered commensurate with a probationer or parolee on the continuum of Fourth Amendment rights.”[23]  In another case, Pryor reversed a district court ruling that a border patrol agent lacked reasonable suspicion in stopping a vehicle.[24]  Pryor’s opinion sparked a dissent from Judge Rosemary Barkett, noting that the ruling ignores the standard of review and “presents the facts in the light most favorable to the government, cobbling together select portions of the testimony to support its own conclusion.”[25]

Similarly, Pryor has held that admitting hearsay evidence against death penalty defendants does not violate their rights under the Confrontation Clause,[26] that airport screenings are a reasonable administrative search,[27] and that defense counsel’s failure to investigate a claim of juror misconduct is not ineffective assistance of counsel.[28]  Each of these opinions sparked a spirited dissent.[29]

Frequent Affirmance of Convictions

Pryor has rejected challenges to convictions that allege insufficiency of the evidence,[30] improper statements by the prosecutors,[31] improper jury instructions,[32] and the erroneous admission of evidence.[33]  He has proven equally skeptical to challenges to harsh sentences.[34]   

Pryor has been particularly deferential to state courts when facing challenges to state convictions under habeas review.[35]  While the Anti-Terrorism and Effective Death Penalty Act (AEDPA) requires deference to state court decisions unless they are “unreasonable applications” of federal law, Pryor has been willing to defer to state courts even where his colleagues disagree.  For example, Pryor affirmed the denial of habeas relief to a prisoner who was convicted after a police detective falsely testified at his trial.[36]  In another case, Pryor denied habeas relief to a defendant whose attorney had failed to present mitigating evidence at his death penalty hearing.[37]

In contrast, Pryor has shown a willingness to reverse sentences that he considers too low,[38] and to reverse grants of a new trial for defendant.[39] 

Prominent Reversals

Consistent with the record of most court of appeals judges, a small number of Pryor’s opinions have been reversed or criticized by the en banc Eleventh Circuit, or the Supreme Court.

Substantive Reversals by the Supreme Court

CSX Transp., Inc. v. State Bd. of Equalization – This case involved a suit by a railroad challenging the tax valuation of its property.  In a 2-1 decision, Pryor held that the Railroad Revitalization and Regulatory Reform Act (4-R Act) does not allow railroads to bring federal suits challenging state tax evaluations.[40]  The Supreme Court granted certiorari and reversed in a unanimous decision by Chief Justice Roberts.[41]  Roberts found that the 4-R Act’s text was clear and contradicted Pryor’s interpretation.[42]

Alabama Legislative Black Caucus v. Alabama – This case involved a challenge to Alabama’s state legislative districts, brought by black lawmakers.  The suit alleged that the districts were drawn with a racial purpose, diluted the vote of African-American voters, and as such, constituted impermissible racial gerrymanders.  Pryor rejected all the challenges, upholding the districts over the dissent of Judge Myron Thompson.[43]  The Supreme Court reversed in a 5-4 opinion by Justice Breyer.[44]  In his opinion, Justice Breyer found Pryor’s conclusions to be “legally erroneous.”[45]

Summary Reversals by the Supreme Court

U.S. v. Smith – In this case, Pryor held that, under the Armed Career Criminal Act, a conviction for fleeing and eluding a law enforcement officer constituted a “violent” felony.[46]  The Supreme Court summarily reversed Pryor’s decision,[47] and remanded it to be reevaluated in light of Johnson v. U.S., an opinion by Justice Scalia that struck down the residual clause of the Armed Career Criminal Act.[48]

Hunter v. U.S. – In this case, Pryor rejected challenges to a criminal defendant who was erroneously sentenced as an armed career criminal.[49]  The Supreme Court summarily reversed Pryor’s decision.[50]

Reversals by the en banc Eleventh Circuit

Wilson v. Warden – This case involved a prisoner, Wilson, challenging his death sentence under federal habeas review.  Wilson argued that his attorney was deficient in failing to present mitigation evidence at his sentencing hearing.  Pryor rejected the appeal, holding that the Georgia Supreme Court’s one-sentence dismissal of Wilson’s case was not an unreasonable application of federal law under AEDPA.[51]  The Eleventh Circuit granted en banc rehearing, vacating the panel opinion, and, in an opinion by Pryor, held that federal courts were not obligated to “look through” state court opinions to examine their reasoning in habeas cases.[52]  This decision sparked two strong dissents, each joined by five judges on the court.  Judge Adalberto Jordan dissented, noting that Pryor’s decision ignored both Eleventh Circuit precedent and contrary decisions by sister circuits.[53]  Judge Jill Pryor also dissented, stating that the majority opinion “runs roughshod over the principles of federalism.”[54]

Overall Assessment

Perhaps more than any other nominee on Trump’s shortlist, Pryor attracts opposition.  Liberal groups object to his aggressive criticisms of Roe,[55] his deeply conservative record on the bench,[56] and his outspokenness in support of conservative politics.[57]  At the same time, Pryor has been attacked by conservative groups for his prosecution of Roy Moore.[58]  With Senate Majority Leader Mitch McConnell ruling out revoking the minority’s ability to filibuster Supreme Court nominees,[59] and with at least one Republican Senator on record previously opposing Pryor’s confirmation,[60] Pryor’s confirmation seems extremely unlikely.

Nevertheless, if confirmed, Pryor would add a strong new conservative voice to the Supreme Court.  Pryor’s willingness to defer to police and prosecutors would move the court rightward on criminal justice issues.  Furthermore, Pryor would likely continue the trend of construing standing and jurisdiction narrowly, making it more difficult to bring disputes in federal court.  Moreover, Pryor’s willingness to stand up to Moore, and his record on the Eleventh Circuit,[61] suggest that he would continue Justice Scalia’s tradition of the principled dissent, writing with the intent of influencing future trends in the law rather than attracting support from his colleagues.

Pryor is no stranger to grueling confirmation struggles, having survived two to become an appellate judge.  However, his nomination to the Supreme Court would likely spark a fight that would dwarf previous clashes.  If the Trump administration nominates him, it’ll be because he is, by their standards, worth the battle.


[1] Mark Joseph Stern, The One SCOTUS Nominee Democrats Should Stop at Any Cost, Slate, Jan. 25, 2017, http://www.slate.com/articles/news_and_politics/jurisprudence/2017/01/william_pryor_has_no_place_on_the_supreme_court.html.

[2] J. Peppar Bryars, Conservatives Must Scrutinize Bill Pryor’s Record, AL.com, Jan. 23, 2017, http://www.al.com/opinion/index.ssf/2017/01/conservatives_must_scrutinize.html.

[3] Gabriel Roth, Donald Trump Just Proposed Diane Sykes and Bill Pryor for the Supreme Court: Who are They, Slate, Feb. 13, 2016, http://www.slate.com/blogs/the_slatest/2016/02/13/donald_trump_just_proposed_diane_sykes_and_bill_pryor_for_the_supreme_court.html.

[4] Kent Faulk, Roy Moore Timeline: Ten Commandments to Gay Marriage Stance, AL.com, May 6, 2016, http://www.al.com/news/birmingham/index.ssf/2016/05/roy_moore_timeline_ten_command.html.   

[5] Glassroth v. Moore, 229 F. Supp. 2d 1290 (M.D. Al. 2002).

[6] Supra n. 4.

[7] Id.

[8] Law Center, Ten Commandments Judge Removed From Office, CNN.com, Nov. 14, 2003, http://www.cnn.com/2003/LAW/11/13/moore.tencommandments/ (quoting William Pryor) (“At the end of the day, when the courts resolve those controversies, we respect their decision”).

[9] Id.

[10] See, e.g., Ralph G. Neas, Report of People For The American Way In Opposition to the Confirmation of William H. Pryor, Jr. to the United States Court of Appeals for the Eleventh Circuit, June 10, 2003, http://files.pfaw.org/uploads/2017/01/william-pryor-report.pdf.

[11] Confirmation Hearings on Federal Appointments Before the S. Comm. on the Judiciary, 108th Cong. Serial No. J-108-15 (2003) (Questions from Sen. Arlen Specter to William H. Pryor).

[12] Id. (Questions from Sen. Russ Feingold to William H. Pryor).

[13] Law Center, Bush Uses Recess Appointment to Put Nominee on Court, CNN.com, Feb. 20, 2004, http://www.cnn.com/2004/LAW/02/20/bush.pryor/.

[14] Evans v. Stephens, 387 F.3d 1220, 1222 (11th Cir. 2004).

[15] See Nicklaw v. Citimortgage, Inc., 839 F.3d 998, 1000 (11th Cir. 2016); Tundidor v. Miami–Dade Cty., 831 F.3d 1328, 1330 (11th Cir. 2016) (dismissing for lack of admiralty jurisdiction); Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1202 (11th Cir. 2015); Leslie v. Hancock Cty. Bd. of Educ., 720 F.3d 1338, 1342 (11th Cir. 2013); Chao Lin v. U.S. Atty. Gen., 677 F.3d 1043, 1044 (11th Cir. 2012); Swann v. Sec’y, Georgia, 668 F.3d 1285, 1286 (11th Cir. 2012); Thomas v. Blue Cross & Blue Shield Ass’n, 594 F.3d 823, 826 (11th Cir. 2010); Thomas v. Blue Cross & Blue Shield Ass’n, 594 F.3d 814, 816 (11th Cir. 2010); Dial v. Healthspring of Alabama, Inc., 541 F.3d 1044, 1046 (11th Cir. 2008).

[16] See Miccosukee Tribe of Indians of Florida v. United States, 698 F.3d 1326, 1328–29 (11th Cir. 2012); Hollywood Mobile Estates Ltd. v. Seminole Tribe of Florida, 641 F.3d 1259, 1262 (11th Cir. 2011); CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1264 (11th Cir. 2006); Tanner Advert. Grp., L.L.C. v. Fayette Cty., GA, 451 F.3d 777, 780 (11th Cir. 2006).

[17] See San Francisco Residence Club, Inc. v. 7027 Old Madison Pike, LLC, 583 F.3d 750, 752 (11th Cir. 2009); Tanner Advert. Grp., L.L.C. v. Fayette Cty., GA, 451 F.3d 777, 780 (11th Cir. 2006).

[18] Alabama Legislative Black Caucus v. Alabama, 989 F. Supp. 2d 1227, 1237 (M.D. Ala. 2013), judgment entered, No. 2:12-CV-1081, 2013 WL 6913115 (M.D. Ala. Dec. 20, 2013), and vacated and remanded, 135 S. Ct. 1257, 191 L. Ed. 2d 314 (2015).

[19] Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1269, 191 L. Ed. 2d 314 (2015).

[20] See United States v. Phillips, 834 F.3d 1176, 1178 (11th Cir. 2016); United States v. LaFond, 783 F.3d 1216, 1219 (11th Cir.), cert. denied sub nom. Widdison v. United States, 136 S. Ct. 213, 193 L. Ed. 2d 163 (2015) (holding that the constitutional prohibition against shackling does not apply during sentencing hearings); United States v. Hollis, 780 F.3d 1064, 1066–67 (11th Cir.), cert. denied, 136 S. Ct. 274, 193 L. Ed. 2d 200 (2015) (applying the “plain view” exception to admit evidence); United States v. Barber, 777 F.3d 1303, 1304 (11th Cir. 2015) (finding that the driver of a car had “apparent authority” to consent to the search of defendant’s bag); United States v. Johnson, 777 F.3d 1270, 1272 (11th Cir.), cert. denied, 136 S. Ct. 178, 193 L. Ed. 2d 143 (2015); Case v. Eslinger, 555 F.3d 1317, 1322 (11th Cir. 2009); United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).

[21] Castillo v. United States, 816 F.3d 1300, 1302 (11th Cir. 2016).

[22] Id. at 1304.

[23] Id. at 1308 (Robreno, J., dissenting).

[24] United States v. Bautista-Silva, 567 F.3d 1266, 1268 (11th Cir. 2009).

[25] Id. at 1275 (Barkett, J., dissenting).

[26] Muhammad v. Sec’y, Florida Dep’t of Corr., 733 F.3d 1065, 1067 (11th Cir. 2013).

[27] Corbett v. Transp. Sec. Admin., 767 F.3d 1171, 1174 (11th Cir. 2014).

[28] Henry v. Warden, Georgia Diagnostic Prison, 750 F.3d 1226, 1228 (11th Cir. 2014).

[29] See Corbett, 767 F.3d at 1184 (Martin, J., dissenting); Henry, 750 F.3d at 1233 (Wilson, J., dissenting); Muhammad, 733 F.3d at 1081-82 (Wilson, J., concurring in part and dissenting in part).

[30] See United States v. Sammour, 816 F.3d 1328, 1331 (11th Cir.), cert. denied, 137 S. Ct. 177, 196 L. Ed. 2d 146 (2016); United States v. Toll, 804 F.3d 1344, 1349 (11th Cir. 2015); United States v. Creel, 783 F.3d 1357, 1358 (11th Cir. 2015); United States v. Merrill, 685 F.3d 1002, 1005 (11th Cir. 2012); United States v. Rodriguez, 628 F.3d 1258, 1260 (11th Cir. 2010); United States v. Spoerke, 568 F.3d 1236, 1240–41 (11th Cir. 2009); United States v. Straub, 508 F.3d 1003, 1006 (11th Cir. 2007).

[31] See, e.g., United States v. Demarest, 570 F.3d 1232, 1235 (11th Cir. 2009).

[32] See United States v. Dortch, 696 F.3d 1104, 1107 (11th Cir. 2012); Jamerson v. Sec’y for Dep’t of Corr., 410 F.3d 682, 684 (11th Cir. 2005).

[33] See United States v. Frediani, 790 F.3d 1196, 1197–98 (11th Cir. 2015).

[34] See United States v. Osorio-Moreno, 814 F.3d 1282, 1284 (11th Cir. 2016) (rejecting a challenge to a sentence at the statutory maximum); United States v. Smith, 775 F.3d 1262, 1264 (11th Cir. 2014) (holding that drug crimes without the element of mens rea can be “serious drug crimes”).

[35] See, e.g., De Lisi v. Crosby, 402 F.3d 1294, 1297 (11th Cir. 2005) (reversing grant of habeas by district court judge). See also Patterson v. Sec’y, Florida Dep’t of Corr., 812 F.3d 885, 896 (11th Cir.) (Pryor, J., dissenting) (“Ace Patterson—a child rapist, kidnapper, and burglar—won the habeas lottery today”), reh’g en banc granted, opinion vacated, 836 F.3d 1358 (11th Cir. 2016), and cert. dismissed sub nom. Jones v. Patterson, 137 S. Ct. 28, 195 L. Ed. 2d 900 (2016). 

[36] Stephens v. Hall, 407 F.3d 1195, 1199 (11th Cir. 2005).

[37] Ponticelli v. Sec’y, Florida Dep’t of Corr., 690 F.3d 1271, 1276 (11th Cir. 2012).

[38] See United States v. Whatley, 719 F.3d 1206, 1208 (11th Cir. 2013); United States v. Foley, 508 F.3d 627, 631 (11th Cir. 2007).

[39] United States v. Almanzar, 634 F.3d 1214, 1217 (11th Cir. 2011).

[40] CSX Transp., Inc. v. State Bd. of Equalization, 472 F.3d 1281, 1283 (11th Cir. 2006). 

[41] CSX Transp., Inc. v. Georgia State Bd. of Equalization, 552 U.S. 9, 128 S. Ct. 467, 169 L. Ed. 2d 418 (2007).

[42] See id. at 19 (“We decline to find distinctions in the statute where they do not exist, especially where, as here, those distinctions would thwart the law’s operation”).

[43] Alabama Legislative Black Caucus v. Alabama, 989 F. Supp. 2d 1227, 1237 (M.D. Ala. 2013), judgment entered, No. 2:12-CV-1081, 2013 WL 6913115 (M.D. Ala. Dec. 20, 2013), and vacated and remanded, 135 S. Ct. 1257, 191 L. Ed. 2d 314 (2015).

[44] Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 191 L. Ed. 2d 314 (2015).

[45] Id. at 1268.

[46] United States v. Smith, 742 F.3d 949, 951 (11th Cir. 2014), cert. granted, judgment vacated, 135 S. Ct. 2935, 192 L. Ed. 2d 961 (2015).

[47] Smith v. United States, 135 S. Ct. 2935 (2015).

[48] Johnson v. United States, 135 S. Ct. 2551 (2015).

[49] Hunter v. United States, 559 F.3d 1188, 1190 (11th Cir. 2009), cert. granted, judgment vacated, 558 U.S. 1143, 130 S. Ct. 1135, 175 L. Ed. 2d 967 (2010).

[50] Hunter v. United States, 558 U.S. 1143, 130 S. Ct. 1135, 175 L. Ed. 2d 967 (2010).

[51] Wilson v. Warden, Georgia Diagnostic Prison, 774 F.3d 671, 674 (11th Cir. 2014), reh’g en banc granted, opinion vacated (July 30, 2015), on reh’g en banc, 834 F.3d 1227 (11th Cir. 2016).

[52] Wilson v. Warden, Georgia Diagnostic Prison, 834 F.3d 1227, 1230 (11th Cir. 2016) (en banc).

[53] See id. at 1245 (Jordan, J., dissenting) (“There should be strong reasons for creating a circuit split, and I do not see any such reasons here”).

[54] Id. at 1247 (Pryor, J., dissenting).

[55] See, Ralph G. Neas, Report of People For The American Way In Opposition to the Confirmation of William H. Pryor, Jr. to the United States Court of Appeals for the Eleventh Circuit, June 10, 2003, http://files.pfaw.org/uploads/2017/01/william-pryor-report.pdf.

[56] Ian Millhiser, Meet the Two Ultra-Conservatives Trump Would Nominate to the Supreme Court, ThinkProgress, Feb. 19, 2016, https://thinkprogress.org/meet-the-two-ultra-conservatives-trump-would-nominate-to-the-supreme-court-da6a78b686b6#.lzs57vyi9.

[57] Mark Joseph Stern, The One SCOTUS Nominee Democrats Should Stop at Any Cost, Slate, Jan. 25, 2017, http://www.slate.com/articles/news_and_politics/jurisprudence/2017/01/william_pryor_has_no_place_on_the_supreme_court.html.

[59] Alexander Bolton and Bob Cusack, McConnell All But Rules Out Filibuster Change, The Hill, Jan. 27, 2017, http://thehill.com/homenews/senate/316583-mcconnell-all-but-rules-out-filibuster-change.

[60] Sen. Susan Collins (R-ME) voted against Pryor’s elevation to the Eleventh Circuit.

[61] Approximately 1 in 5 Pryor opinions have sparked a concurrence or dissent, higher than most other appellate judges.

Supreme Court Shortlist: Judge Diane Sykes

Judge Diane Sykes can be considered the ostensible frontrunner for the Supreme Court seat vacated by Justice Scalia.  Sykes has extensive judicial experience, having been a judge continuously since 1992.  Furthermore, she is strongly conservative, with a long affiliation with the Federalist Society and the Republican party.  Because of these credentials, Judge Sykes has been considered for a Supreme Court nomination by numerous Republican presidential candidates.  While President-elect Trump hasn’t indicated who he will nominate to the Supreme Court vacancy, it is inevitable that Judge Sykes will be seriously considered.

Background

Diane Sykes (nee Schwerm) is a Wisconsin native, born in Milwaukee on Dec. 23, 1957.  Sykes studied journalism at Northwestern University, marrying fellow journalist Charlie Sykes shortly after graduating.[2]  Sykes went on to Marquette University Law School and a clerkship for Judge Terence Evans on the U.S. District Court for the Eastern District of Wisconsin.[3]  Following her clerkship, Sykes worked as a civil litigator at Whyte Hirschboek for seven years before her 1992 election to a seat on the Milwaukee County Circuit Court.

As a trial court judge, Sykes developed a reputation as a conservative jurist and a strict sentencer.  During her tenure, a number of her decisions were overturned by the Wisconsin Court of Appeals.  In one case, Sykes ruled that a defense attorney who instructed his client to lie on the stand was not ineffective.  This ruling was overturned by the higher court, who noted that it violated “the overwhelming weight of legal authority.”[4]  In another case, she was criticized for remarks from the bench that indicated a bias towards the prosecution.[5]

In 1999, Sykes was chosen by Republican Governor Tommy Thompson to replace Justice Donald Steinmetz on the Wisconsin Supreme Court.[6]  While the selection was generally praised, it also invited criticism from State Senator Gary George, who characterized Sykes as a jurist supported by “the right wing of the Republican party”.[7]  In 2000, Sykes won election to the Supreme Court in her own right by campaigning as a strict constructionist with law enforcement support.[8]  The campaign, while generally low-key, attracted some attention due to Sykes’ ex-husband Charlie’s aggressive advocacy on behalf of his wife.[9]

As a Wisconsin Supreme Court Justice, Sykes built a record of conservative jurisprudence, voting frequently in support of law enforcement, prosecutors, and civil defendants.[10]  For example, in one case, Sykes wrote in dissent that a defendant’s right to due process is not violated where one of his jurors indicates his inability to understand the English language, absent any showing of prejudice from the trial court.[11]  In another case, Sykes dissented in support of preserving a lease with a term that was expressly prohibited by statutory language.[12]  In her opinions, Sykes expressed support for conservative ideas of jurisprudence, including textualism.[13]

On November 14, 2003, Sykes was nominated by President George W. Bush for a seat on the Seventh Circuit Court of Appeals.  Sykes’ nomination was supported by Wisconsin’s then-Senators Herb Kohl and Russ Feingold, both Democrats and members of the Senate Judiciary Committee.[14]  Nevertheless, the majority of Senate Democrats opposed Sykes’ confirmation, citing her conservative record as a Wisconsin state judge.  Specifically, Sen. Durbin noted Sykes’ gratuitous comments while sentencing two anti-abortion protesters who blocked access to an abortion clinic.  While noting that blocking access to the clinic was illegal, Sykes went on to praise the defendants, calling them “exemplary citizens” and stating that she respected them for having “the courage of [their] convictions.”[15]  Such statements were contrasted with Sykes’ tendency to berate other defendants as a sentencing judge.[16]  Despite these concerns, Sykes was confirmed on June 24, 2004 by a vote of 70-27, with 21 Democrats supporting her confirmation.[17]  She took her seat on the Seventh Circuit on July 1, 2004.

Jurisprudence

In her twelve years on the federal bench, Sykes has authored nearly 700 majority opinions (and many more concurrences and dissents).  A review of these opinions establishes certain patterns in her jurisprudence.

Narrow View of Criminal Procedural Protections

The Fourth, Fifth, and Sixth Amendments provide important structural protections to individuals charged with crimes, and threatened with imprisonment.  Sykes has interpreted these protections narrowly, rarely applying sanctions such as the exclusionary rule against overreaching police and prosecutors.

For example, Sykes has generally rejected Fourth Amendment challenges to warrantless searches,[18] and seizures.[19]  In United States v. Freeman, Sykes found that the police were justified in conducting a warrantless arrest of a suspect, and in strip searching him prior to booking.[20] 

In comparison, Sykes has only applied the exclusionary rule to suppress evidence in a handful of cases.[21]  In U.S. v. Stotler, for example, Sykes dissented from a panel decision holding that police officers had probable cause to search an arrestee’s truck.[22]

In cases involving the Fifth Amendment’s protection against self-incrimination, Sykes has rejected challenges to allegedly coercive police interrogations.[23]  Sykes has been equally skeptical of claims under the Sixth Amendment right to counsel.[24]

Broad Interpretation of Some First Amendment Rights and Protections

In contrast to her relatively narrow interpretation of the Fourth, Fifth, and Sixth Amendments, Sykes has interpreted the First Amendment broadly to protect political activity from government scrutiny and regulation.  In 2011, Sykes struck down Wisconsin’s cap on contributions to political action committees.[25]  Sykes also struck down Illinois’ ballot access requirements for independent candidates, ruling that they violated the First and Fourteenth Amendments.[26]  In addition, Sykes noted that the use of mandatory bar dues to pay for a public image campaign likely violates the First Amendment rights of Wisconsin attorneys.[27]

On the religion clauses, Sykes notably authored the opinion ruling that for-profit corporations had religious rights, and that requiring them to provide contraception coverage for their employees violated these rights,[28] an opinion that drew a fierce dissent from Judge Ilana Rovner.[29]  Sykes’ reasoning was narrowly upheld by the Supreme Court in a 5-4 decision.[30]  Sykes also dissented in support of the religious rights of a church that was denied a permit to move its location.[31]  In contrast, Sykes has taken a relatively narrow interpretation of Establishment Clause rights.  While she did join six of her colleagues in ruling that holding high school graduation ceremonies in an evangelical church violates the First Amendment,[32] she rejected a First Amendment challenge to the display of the Ten Commandments at a public building.[33]  Similarly, she dissented from an opinion authored by Judge Posner, arguing that taxpayers could not sue for monetary relief when the federal government violates the Establishment Clause.[34]

Willingness to Allow Plaintiffs to Overcome Pleading Barriers

On the civil side, Sykes has occasionally reversed district court judges for dismissing suits at the pleading stage, indicating a willingness to allow plaintiffs to present civil cases.  Notably, she has reversed judges both on judgments on the pleadings,[35] and on grants of summary judgment.[36]  She has similarly been skeptical of dismissing cases based on statute of limitations defenses.[37]   

Two exceptions to this pattern are Sykes’ willingness to dismiss cases based on lack of standing,[38] and claim preclusion.[39]  For example, Sykes was the only judge in an en banc evaluation of a class action claim to find that the case should be dismissed for lack of standing.[40]

Skepticism to Civil Rights and Title VII claims

Sykes’ record also shows a tendency to rule against civil rights, labor, and discrimination plaintiffs.  For example, Sykes has repeatedly rejected constitutional claims for police misconduct,[41] and violation of rights in prison.[42]  In one case, Sykes dismissed a suit against a police officer who withheld key pieces of information from a warrant application, holding that, while the officer should have known that withholding material information was against the law, it was unclear if the information withheld in this case was material.[43]  In another case, Sykes dissented from an opinion by Judge Kenneth Ripple, who held that a prisoner could sue a warden who failed to protect him from attacks by other inmates.[44]

Similarly, Sykes has been skeptical of sex discrimination claims,[45] racial discrimination claims,[46] and claims under the Americans with Disabilities Act (ADA).[47]  Sykes notably dissented from an order permitting a pro se litigant to proceed with her ADA claim, arguing that her brief was inadequate under Rule 28 of the Federal Rules of Appellate Procedure.[48]

Prominent Reversals

Consistent with the record of most court of appeals judges, a very small number of Sykes’ opinions have been reversed or criticized by subsequent panels, the en banc Seventh Circuit, or the Supreme Court.  Not all of these reversals indicate criticism of Sykes’ reasoning.  In some of the cases, the law had evolved after her initial ruling.

Summary Reversals by the Supreme Court

U.S. v. Fish – In one of her first published opinions as a Seventh Circuit judge, Sykes held that in cases where trial judges choose not to depart downward on a sentence, those decisions are not reviewable on appeal.[49]  The Supreme Court summarily reversed Sykes’ decision, and remanded it to be re-evaluated in light of United States v. Booker.[50]

Frederick v. Holder – In this opinion, Sykes dismissed claims for statutory and constitutional relief from the petitioner in a removal proceeding.[51]  Specifically, Sykes rejected claims that the petitioner was eligible to remain in this country as a lawful permanent resident, and that the removal proceedings violated his equal protection and due process rights.[52]  The Supreme Court summarily reversed Sykes’ opinion,[53] remanding it with instructions to review in light of Judulang v. Holder.

Reversals by the en banc Seventh Circuit

U.S. v. Skoien – In 2006, Skoien was convicted of domestic battery in Wisconsin, and placed on probation, a condition of which was that he would not own a firearm.  In 2007, Skoein was arrested for using a deer hunting shotgun that belonged to his father.  Skoein argued that prohibiting him from lawfully using a firearm violated the Second Amendment’s right to bear arms.  While the trial judge rejected his argument by arguing that criminals essentially forfeit their Second Amendment rights, a 3-judge panel of the Seventh Circuit, in an opinion written by Sykes, reversed.[54]  In her opinion, Sykes ruled that there could be no blanket forfeiture of Second Amendment rights, and as such, the constitutionality of the restriction must be evaluated under intermediate scrutiny.[55]  The full Circuit, meeting en banc, reversed Sykes, holding that categorical prohibitions on firearm ownership were consistent with the Second Amendment.[56]  Sykes was the only dissenter from this decision.

Empress Casino Joliet Corp. v. Blagojevich – The plaintiffs in this case were operators of riverboat casinos.  They brought suit against the former Governor of Illinois, his campaign finance committee, and Illinois racetracks, alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and state-law constructive trust claims.  The plaintiffs sought to halt all distribution of state subsidies to Illinois racetracks.  The district court held that the Tax Injunction Act barred a judge’s ability to halt the subsidies and place the money in escrow.  In a 2-1 decision, Sykes reversed the court, holding that the Tax Injunction Act did not bar his jurisdiction to impose a constructive trust for the subsidies.[57]  The full en banc court overruled the panel in an opinion by Judge Richard Posner.[58]  Posner, who had dissented from the panel decision, ruled that the district court correctly found the Tax Injunction Act to be a barrier to a judge’s ability to enjoin the Illinois state subsidy program.  Sykes dissented from the ruling, joined by Judges Bauer and Kanne.

Minn-Chem, Inc. v. Agrium, Inc. – The plaintiffs and defendants in this case were potash producers.  The plaintiffs alleged price fixing and other anti-competitive behaviors by the defendants, and filed suit under the Sherman Act.  After the district court denied a motion to dismiss for failure to state a claim, the Seventh Circuit, in an opinion written by Sykes, reversed,[59] relying on a prior Seventh Circuit en banc case, United Phosporus, Ltd. v. Angus Chem. Co.[60]  The full Seventh Circuit unanimously reversed the panel and overruled United Phosporus.[61]

U.S. v. Spears – Spears was convicted of five felonies based on his business producing counterfeit identity documents.  He appealed three of his convictions: aggravated identity theft, producing a false identification document, and unlawful possession of five or more false identification documents.  The panel, led by Sykes, affirmed two of his convictions, but reversed the one for unlawful possession.[62]  The full court granted en banc reconsideration, and affirmed Sykes’ rulings on two of the convictions.[63]  However, it overturned Spears’ conviction for aggravated identity theft, holding that Spears’ provision of false identification papers to others only constituted identity fraud and not identity theft.

Reversals by Subsequent Panels

U.S. v. Baldwin – In another early opinion, Sykes ruled that a defendant cannot challenge a concurrent sentence under an indictment that was one day late.[64]  Specifically, Sykes noted that the concurrent conviction would not have added any time to the defendant’s sentence, and as such, the only penalty he faces for the error is a de minimis $100 ‘special assessment.’[65]  Two years later, Judge Sykes herself wrote an opinion overruling Baldwin and the precedent it relied on, holding that such multiplicitous punishment constituted error.[66]

U.S. v. Newbern – Sykes wrote for the panel, holding that the Illinois crime of “reckless discharge of a firearm” constitutes a crime of violence under the sentencing guidelines.[67]  The next year, Newbern was overturned by another panel of the Seventh Circuit based on the Supreme Court’s decision in Begay v. United States, which had held the contrary.[68]

Andrews v. CBOCS W., Inc. – Andrews, a white server at a Cracker Barrel restaurant, brought suit under Title VII and the Age Discrimination in Employment Act (ADEA), alleging that her black manager fired her based on her race and age.  In her opinion affirming the dismissal of the case, Sykes laid out the evidentiary burden on the plaintiff in discrimination cases, noting that the burden is different based on whether the evidence offered is direct or indirect.[69]  Two years later, another panel of the Seventh Circuit overruled Andrews and its progeny, holding that direct and indirect evidence cannot be subjected to different legal standards, and that rather, all evidence should be evaluated holistically.[70]

Speeches and Panel Discussions

As noted above, Sykes has maintained a longstanding affiliation with the Federalist Society, an organization of conservative legal professionals seeking to mold the law in accordance with principles of textualism and originalism.  Thus, Sykes has spoken at several Federalist Society events about theories of legal interpretation.

On Dec. 12, 2012, Sykes participated in a discussion on Judge J. Harvie Wilkinson’s book, Cosmic Constitutional Theory, in Indianapolis.[71]  During the discussion, moderated by Indiana Solicitor General Thomas Fisher, Sykes voiced her general agreement with the central thesis of the book: that courts need to take a restrained approach to evaluating law.  However, Sykes went on to note that deference to the legislature on all points defeats the Constitution’s guarantees of liberty, and that judges must rely on an originalist understanding of the Constitution in evaluating its provisions.

Sykes also criticized Congress’ extensive use of its spending power to regulate interstate commerce, noting that, in her opinion, such actions go beyond the constraints of the Commerce Clause.

Overall Assessment

On paper, Judge Diane Sykes has the qualifications to serve on the U.S. Supreme Court.  She has spent over 12 years on one of the most prestigious court of appeals, and has authored hundreds of opinions during her time there.  Her opinions, which cover the entire gamut of federal law, are generally well-reasoned and concise.  Furthermore, she is well-liked by her colleagues on the Seventh Circuit.  She has also been praised by colleagues on the Wisconsin Supreme Court, including ideological opponents such as Justice Shirley Abrahamson.  Liberal Democrats, including former Senator Russ Feingold, have spoken highly of her ability and her character.

Nevertheless, if nominated, Judge Sykes is unlikely to face a smooth ride to confirmation.  Her opinions and writings betray a strong conservative leaning, and a tendency to originalist and textualist interpretations of the Constitution.  Sykes’ narrow view of constitutional protections awarded to criminal defendants, combined with her expansive views of other protections, such as those of the First Amendment, could be interpreted as a results-oriented approach intended to produce conservative outcomes.  Her opinions have drawn dissents and opposition even from other conservative judges, including Reagan appointees Richard Posner, and Frank Easterbrook.  If Sykes is nominated, her opinions in Korte and Skoein are likely to come under particular scrutiny (although regarding the former, Sykes can take comfort in the Supreme Court’s adoption of her view in Hobby Lobby).  

Overall, if confirmed, Sykes would likely make the Supreme Court a friendlier forum for prosecutors and civil defendants.  Her supporters would likely get what they expect: a judicial conservative.


[1] See Ann Althouse, The Argument for Diane Sykes as the Post-Miers Nominee, Althouse, Oct. 24, 2005, http://althouse.blogspot.com/2005/10/argument-for-diane-sykes-as-post-miers.html (quoting Jessica McBride); see also Obama, McCain Would Look to Women, Hispanics for Supreme Court, SINA, Jul. 16 2008, http://english.sina.com/world/1/2008/0715/171651.html, Joe Palazzolo, If Romney Were President, Who Would He Pick, Wall St. Journal, Apr. 19, 2012, http://blogs.wsj.com/law/2012/04/19/if-romney-were-president-whom-would-he-pick/, Daniel Bice, Scott Walker Jokes About Appointing Sykes to U.S. Supreme Court, Milwaukee-Wisconsin Journal Sentinel, Nov. 21, 2013, http://archive.jsonline.com/blogs/news/232889941.html.

[2] They divorced in 1999.

[3] Judge Evans went on to serve on the 7th Circuit, where Sykes currently sits.

[4] Doug Hissom, Judging Judge Sykes, Shepherd Express, Dec. 18 2003, http://www.mapinc.org/drugnews/v03/n1941/a02.html.

[5] Id. (quoting Judge Ralph Adam Fine) (“Simply put, the trial court should keep its thumbs off of the scales of justice,”).

[6] Associated Press, Thompson Picks Sykes for State Supreme Court, The Chippewa Herald, Sep. 4, 1999, http://chippewa.com/thompson-picks-sykes-for-state-supreme-court/article_d06f46a7-37c4-52b8-91df-94aaadee3e1a.html.  

[7] Id.

[8] STL, Butler is Best Choice for Supreme Court, The Journal Times, Mar. 29, 2000, http://journaltimes.com/news/opinion/editorial/butler-is-best-choice-for-supreme-court/article_a21d0e45-26de-5ba0-9dcd-afabda98c9a1.html (“[Sykes] is a strict constructionist who enjoys heavy support from conservatives and the law enforcement community.”).  See also Confirmation Hearings on Federal Appointments Before the S. Comm. on the Judiciary, 108th Cong. 695, 705 (2004) (Questions from Sen. Dick Durbin to Diane Sykes), asking about radio ads Sykes ran saying she was “such a tough sentencer that defense lawyers tried to avoid [her] in court.  Sen. Durbin also asked about articles referring to Sykes’ reputation as a “hanging judge” and that there was a wing of a maximum-security prison informally named after her.  

[9] Kurt Chandler, Charlie’s Bully Pulpit, Milwaukee Magazine, Jul. 1, 2000, https://www.milwaukeemag.com/2000/07/01/charlies-bully-pulpit/.

[10] Supra n. 4 (noting 4-3 decisions authored by Sykes where she sided with law enforcement officials).

[11] State v. Carlson, 261 Wis.2d 97, 136037 (2003).

[12] Baierl v. McTaggert, 245 Wis.2d 632, 653-54 (2001)

[13] See State ex rel. Kalal v. Dane Cnty. Circuit Ct., 271 Wis.2d 633, 662 (2004) (“Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute.”).

[14] Tony Anderson, Senate Approves Sykes, Wisconsin Law Journal, Jun 30, 2004, http://wislawjournal.com/2004/06/30/senate-approves-sykes/.

[15] Associated Press, Who is Diane Sykes? Wis. Judge Makes Trump Short List, WBAY.com, May 19, 2016, http://wbay.com/2016/05/19/who-is-diane-sykes-wis-judge-makes-trumps-supreme-court-list/.  See also Confirmation Hearings on Federal Appointments Before the S. Comm. on the Judiciary, 108th Cong. 695 (2004) (Questions from Sen. Dick Durbin to Diane Sykes).

[16] Supra n. 4 (quoting a Wisconsin public defender) (“[Sykes] would berate people, giving them longer sentences than other judges”).

[17] 150 Cong. Rec. S7397 (June 24, 2004). 

[18] See United States v. Wright, 838 F.3d 880, 882 (7th Cir. 2016) (finding “common authority” for suspect’s domestic partner to consent to warrantless search of laptop); United States v. Charles, 801 F.3d 855, 858 (7th Cir. 2015), cert. denied, 136 S. Ct. 2044, 195 L. Ed. 2d 241 (2016), reh’g denied, 137 S. Ct. 19 (2016) (finding “automobile exception” permitted warrantless search); United States v. Gonzalez-Ruiz, 794 F.3d 832, 833 (7th Cir. 2015) (finding consent to search of automobile); United States v. Price, 775 F.3d 828, 831 (7th Cir. 2014) (finding consent to search of laptop); United States v. Stokes, 726 F.3d 880, 885 (7th Cir. 2013); United States v. McGraw, 571 F.3d 624, 626 (7th Cir. 2009) (“The district court did not clearly err in finding that McGraw voluntarily consented to the officers’ search”); United States v. Henderson, 536 F.3d 776, 777 (7th Cir. 2008) (holding that co-resident was free to consent to search residence where defendant had previously objected); Lakeland Enterprises of Rhinelander, Inc. v. Chao, 402 F.3d 739, 745 (7th Cir. 2005) (finding no reasonable expectation of privacy in a trench by a roadway),

[19] See United States v. Freeman, 691 F.3d 893 (7th Cir. 2012); United States v. Griffin, 652 F.3d 793 (7th Cir. 2011); United States v. Groves, 559 F.3d 637 (7th Cir. 2009).

[20] Freeman, 691 F.3d at 896.

[21] See United States v. Edwards, 769 F.3d 509 (7th Cir. 2014); United States v. Tyler, 512 F.3d 405 (7th Cir. 2008).

[22] United States v. Stotler, 591 F.3d 935, 942 (7th Cir. 2010) (Sykes, J., dissenting) (“The alternative justification for the search—that there was probable cause to believe that Stotler’s truck contained evidence of a crime—simply is not supported by the record”).

[23] See United States v. Smith, 831 F.3d 793, 795 (7th Cir. 2016); United States v. Stadfeld, 689 F.3d 705, 707 (7th Cir. 2012),

[24] See United States v. Lewisbey, No. 14-2236, 2016 WL 7176646, at *1 (7th Cir. Dec. 9, 2016); Jean-Paul v. Douma, 809 F.3d 354, 356 (7th Cir. 2015); United States v. Sinclair, 770 F.3d 1148, 1150 (7th Cir. 2014), cert. denied, 136 S. Ct. 399, 193 L. Ed. 2d 312 (2015); United States v. Gallo-Moreno, 584 F.3d 751, 754 (7th Cir. 2009); United States v. Bender, 539 F.3d 449, 452 (7th Cir. 2008); United States v. Stewart, 388 F.3d 1079, 1081 (7th Cir. 2004).

[25] Wisconsin Right to Life State Political Action Comm. v. Barland, 664 F.3d 139, 143 (7th Cir. 2011).

[26] Lee v. Keith, 463 F.3d 763, 765 (7th Cir. 2006).

[27] Kingstad v. State Bar of Wis., 622 F.3d 708, 721 (7th Cir. 2010) (Sykes, J., dissenting from denial of en banc rehearing).

[28] Korte v. Sebelius, 735 F.3d 654, 659 (7th Cir. 2013).

[29] See id. at 688 (Rovner, J., dissenting) (“The court extends a highly personal right to a secular corporation, a man-made legal fiction that has no conscience enabling belief or worship.”).

[30] See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

[31] River of Life Kingdom Ministries v. Vill. of Hazel Crest, Ill., 611 F.3d 367, 377 (7th Cir. 2010) (en banc) (Sykes, J., dissenting).

[32] Doe ex rel. Doe v. Elmbrook Sch. Dist., 687 F.3d 840, 842 (7th Cir. 2012).

[33] Books v. Elkhart Cty., Ind., 401 F.3d 857, 858 (7th Cir. 2005).

[34] Laskowski v. Spellings, 443 F.3d 930, 939 (7th Cir. 2006) (Sykes, J., dissenting), cert. granted, judgment vacated sub nom. Univ. of Notre Dame v. Laskowski, 551 U.S. 1160, 127 S. Ct. 3051, 168 L. Ed. 2d 755 (2007).

[35] See Landmark Am. Ins. Co. v. Hilger, 838 F.3d 821, 822 (7th Cir. 2016); Hyson USA, Inc. v. Hyson 2U, Ltd., 821 F.3d 935, 938 (7th Cir. 2016); Swanigan v. City of Chicago, 775 F.3d 953, 955 (7th Cir. 2015).

[36] See Baptist v. Ford Motor Co., 827 F.3d 599 (7th Cir. 2016); Lees v. Carthage Coll., 714 F.3d 516, 518 (7th Cir. 2013); Edwards v. Snyder, 478 F.3d 827, 828 (7th Cir. 2007).

[37] See Chicago Bldg. Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 612 (7th Cir. 2014); Aebischer v. Stryker Corp., 535 F.3d 732, 732–33 (7th Cir. 2008). But see Wojtas v. Capital Guardian Trust Co., 477 F.3d 924, 925 (7th Cir. 2007) (holding that where voluntary dismissal without prejudice would prevent defendants from raising a statute of limitations defense, dismissal is not permitted and the suit is time-barred).

[38] See Bond v. Utreras, 585 F.3d 1061, 1066 (7th Cir. 2009); In re Stinnett, 465 F.3d 309, 311 (7th Cir. 2006); DH2, Inc. v. U.S. S.E.C., 422 F.3d 591, 592 (7th Cir. 2005).

[39] See Dookeran v. Cty. of Cook, Ill., 719 F.3d 570, 573 (7th Cir. 2013) (dismissing Title VII claim as precluded by state court determination); Matrix IV, Inc. v. Am. Nat. Bank & Trust Co. of Chicago, 649 F.3d 539, 542 (7th Cir. 2011) (dismissing case based on collateral estoppel).

[40] Markadonatos v. Vill. of Woodridge, 760 F.3d 545, 556 (7th Cir. 2014) (en banc) (Sykes, J., dissenting) (“For my part, en banc review has reinforced my earlier doubts about the plaintiff’s standing. I would vacate and remand with instructions to dismiss for lack of jurisdiction.”).

[41] Leaver v. Shortess, No. 15-2730, 2016 WL 7384012, at *1 (7th Cir. Dec. 21, 2016) (granting qualified immunity for police officer who wrongfully omitted information from police reports); Maniscalco v. Simon, 712 F.3d 1139, 1141 (7th Cir. 2013); Katz–Crank v. Haskett, 843 F.3d 641, 645 (7th Cir. 2016); Gonzalez v. Vill. of W. Milwaukee, 671 F.3d 649, 652 (7th Cir. 2012); Sallenger v. City of Springfield, Ill., 630 F.3d 499, 501 (7th Cir. 2010); Alexander v. City of S. Bend, 433 F.3d 550, 552 (7th Cir. 2006).

[42] See Chatham v. Davis, 839 F.3d 679, 682 (7th Cir. 2016); Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 660 (7th Cir. 2016); Olson v. Morgan, 750 F.3d 708, 710 (7th Cir. 2014), reh’g denied (May 16, 2014); Smith v. Sangamon Cty. Sheriff’s Dep’t, 715 F.3d 188, 189 (7th Cir. 2013).

[43] Whitlock v. Brown, 596 F.3d 406, 408 (7th Cir. 2010).

[44] Santiago v. Walls, 599 F.3d 749, 767 (7th Cir. 2010) (Sykes, J., dissenting).

[45] See, e.g., Lord v. High Voltage Software, Inc., 839 F.3d 556, 559 (7th Cir. 2016); Warren v. Solo Cup Co., 516 F.3d 627, 628 (7th Cir. 2008).

[46] See McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 877 (7th Cir. 2012) (holding that a compensation program that has the effect of discriminating against black brokers does not violate the law without evidence of racial animus in adopting the program); Harris v. Warrick Cty. Sheriff’s Dep’t, 666 F.3d 444, 446 (7th Cir. 2012); Sartor v. Spherion Corp., 388 F.3d 275, 278 (7th Cir. 2004) (“In the context of a business undergoing a substantial reorganization, the fact that the sole black employee at a particular management level was not retained does not itself signal that the company was motivated to fire her because of her race.”).

[47] See, e.g., CTL ex rel. Trebatoski v. Ashland Sch. Dist., 743 F.3d 524, 531 (7th Cir. 2014).

[48] Johns v. Laidlaw Educ. Servs., 199 F. App’x 568, 571–72 (7th Cir. 2006) (Sykes, J., dissenting) (“[Plaintiff’s] appellate brief consists of four pages of generalized assertions of discrimination on the part of Laidlaw Education Services and a rambling account of her shoulder surgery and the light duty work assignment Laidlaw provided during her recuperation. It contains no legal argument or citation to supporting legal authority or record evidence.”).

[49] United States v. Fish, 388 F.3d 284, 285 (7th Cir. 2004), cert. granted, judgment vacated, 544 U.S. 916, 125 S. Ct. 1678, 161 L. Ed. 2d 469 (2005).

[50] United States v. Fish, 544 U.S. 916, 125 S. Ct. 1678, 161 L. Ed. 2d 469 (2005).

[51] Frederick v. Holder, 644 F.3d 357 (7th Cir. 2011), cert. granted, judgment vacated, 132 S. Ct. 999, 181 L. Ed. 2d 726 (2012).

[52] Id. at 362-64.

[53] Frederick v. Holder, 132 S.Ct. 999 (2012).

[54] United States v. Skoien, 587 F.3d 803 (7th Cir. 2009), reh’g en banc granted, opinion vacated, No. 08-3770, 2010 WL 1267262 (7th Cir. Feb. 22, 2010), and on reh’g en banc, 614 F.3d 638 (7th Cir. 2010).

[55] Id. at 805.

[56] United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010) (“Categorical limits on the possession of firearms would not be a constitutional anomaly.”).

[57] Empress Casino Joliet Corp. v. Blagojevich, 638 F.3d 519, 523 (7th Cir.), reh’g en banc granted in part, opinion vacated in part sub nom. Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 649 F.3d 799 (7th Cir. 2011), and on reh’g sub nom. Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651 F.3d 722 (7th Cir. 2011).

[58] Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651 F.3d 722 (7th Cir. 2011).

[59] Minn-Chem, Inc. v. Agrium Inc., 657 F.3d 650 (7th Cir. 2011), reh’g en banc granted, opinion vacated (Dec. 2, 2011).

[60] United Phosporus, Ltd. v. Angus Chem. Co., 322 F.3d 942 (7th Cir. 2003).

[61] Minn-Chem, Inc. v. Agrium Inc., 683 F.3d 845 (7th Cir. 2012).

[62] United States v. Spears, 697 F.3d 592, 594 (7th Cir. 2012), reh’g en banc granted, opinion vacated, No. 11-1683, 2013 WL 515786 (7th Cir. Jan. 14, 2013), and opinion reinstated in part on reh’g, 729 F.3d 753 (7th Cir. 2013).

[63] United States v. Spears, 729 F.3d 753, 755 (7th Cir. 2013).

[64] United States v. Baldwin, 414 F.3d 791 (7th Cir. 2005), overruled by United States v. Parker, 508 F.3d 434 (7th Cir. 2007) (Sykes, J.).

[65] 414 F.3d at 794-95.

[66] United States v. Parker, 508 F.3d 434 (7th Cir. 2007).

[67] United States v. Newbern, 479 F.3d 506, 507 (7th Cir. 2007), abrogated by United States v. Smith, 544 F.3d 781 (7th Cir. 2008).

[68] United States v. Smith, 544 F.3d 781 (7th Cir. 2008) (citing Begay v. U.S., 553 U.S. 137 (2008)).

[69] Andrews v. CBOCS W., Inc., 743 F.3d 230, 234 (7th Cir. 2014), overruled by Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016).

[70] Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016).