Short Circuit

Dropping on First Monday, the Supreme Court’s first day of the October 2025 term, it’s our annual Supreme Court preview, recorded live at the University of North Carolina. Re-joining us after a very long hiatus is Sheldon Gilbert, the original host of the very first preview and very first Short Circuit Live, way back when he was the Director of the Center for Judicial Engagement. That is, back when he was a Younger Sheldon. These days he has the fancy-pants job of CEO and President of the Federalist Society. But he’s returned for old times’ sake and also to follow what seems to be the occupation of his calling—a game show host. Sheldon welcomes Justin Pearson of IJ and Interim Dean Andy Hessick of UNC Law for a bit of SCOTUS trivia and a review of some of the term’s biggest cases. Get ready for substance v. procedure, the Heck bar, civil forfeiture, and unconstitutional conditions. Plus, things you never knew—or never even fathomed you never knew—about Erie Railroad v. Tompkins. This is the way we Leeroy Jenkins at Short Circuit. Berk v. Choy Oliver v. City of Brandon Jouppi v. Alaska La Anyane v. Georgia The Ballad of Harry Tompkins The Very First Short Circuit Live (with Younger Sheldon and Younger Justin) Leeroy Jenkins!

Two opinions that dig into history, one on voting rights the other on gun rights, and both from the Fourth Circuit. First, Dan Nelson of IJ tells us of a challenge to a North Carolina law that criminalizes voting by felons, even when the voter legitimately thinks they are eligible to vote. The statute was passed back during Reconstruction for racist reasons and hasn’t materially changed since. Does that still matter all these many years later? It turns out it does, and the court ruled it unconstitutional. IJ’s Dylan Moore then tells us a tale of a man who bought a gun in Arizona and brought it to Maryland. Unfortunately, he was under a felony indictment back home. That fact plus traveling with the gun violated federal law. But does that law violate his Second Amendment rights? The court doesn’t think so but it has to do a few historical twists and turns before arriving at that cross-country destination. N.C. A. Philip Randolph Institute v. Board of Elections U.S. v. Jackson Bruen

It’s a Short Circuit Live from YIMBYTown! We travel to the Yes-In-My-Back-Yard conference, held this year in New Haven, Connecticut. Our guests discuss recent cases and controversies related to efforts to build more homes and also, unfortunately, do the opposite. First up is David Schleicher, aka “Professor YIMBY,” of Yale Law School. David updates everyone on a case we’ve talked about before, a lawsuit in Montana to try and throw out the state’s “miracle” housing reforms passed a couple years ago. The case is now before the state supreme court after a rocky initial ride. David focuses on the issue of private covenants and how that might affect reforms elsewhere in the future. Then Andrew Fine of Open New York tells the sad tale of a long battle to build low-income housing on a lot—the “Elizabeth Street Garden”—in the middle of New York City. Led by Hollywood celebrities, the effort to prevent the project for “environmental” reasons dragged on for over a decade. Although that act of NIMBYism ultimately lost at the state’s highest court, continuing attempts to stop the project took so long that the city recently just pulled the plug. We end on a cheerier note, though, with Ari Bargil of IJ. He relates the news of a win in trial court in Georgia for our client’s efforts to build “tiny homes.” Does this presage other victories elsewhere? The panel think that through. New York Court of Appeals ruling in Elizabeth Street Garden case MAID v. Montana update Georgia Tiny Homes case David’s piece on NIMBY judges

It’s a free speech episode with two rulings for the First Amendment. Paul Sherman of IJ details a victory that the Institute for Justice litigated at the Seventh Circuit. IJ represents a “death doula,” someone who helps people deal with many things that come up when a loved on passes away. Indiana said that she needed a funeral director’s license to do that. But she obtained a preliminary injunction against that law as applied to her, and the court upheld the injunction on appeal. Then IJ’s Joe Gay tells a wild story about “sideshows,” where cars race around intersections late at night and people involved do various other, mostly illegal, things. One California county was fed up with the sideshows and passed a law making it illegal to simply watch them. A citizen journalist challenged the law and the Ninth Circuit ruled that, yes, the sideshows themselves are a problem, but the answer is not to prevent journalists from watching them. Richwine v. Matuszak Garcia v. County of Alameda Upsolve v. James

Your right to remain silent just got a little stronger in the Pine Tree State. We welcome on Carol Garvan of the Maine ACLU to discuss a recent ruling from the state’s highest court. Under police questioning a suspect asked about an attorney being present and whether he had to answer questions, but did so a bit ambiguously. Was that enough to invoke his rights under the Maine Constitution? Carol argued the case as an amicus to explain the high level of protection those rights receive in the state compared to what the U.S. Supreme Court has said about similar language in the U.S. Constitution. And the court agreed with her and her colleagues. She explains to us how the court came to its conclusion and what this means for other Mainers. Then IJ’s Daniel Woislaw tells us of another police encounter, this time at a parked car with heavily tinted windows in the District of Columbia. Could the police force the driver and passengers to roll their windows down? The judges say yes but disagree about why. It’s another example of the “reasonable expectation of privacy” test twisting and turning at the side of the road. State v. McLain U.S. v. Williams IJ’s new Maine Backyard Chickens case

Arbitration may not sound like the most exciting subject, but it recently made for an exciting story at the Second Circuit. Former Miami Dolphins coach Brian Flores sued several teams and the NFL itself. In response, the NFL said the case had to go to arbitration. Which was pretty convenient because the NFL’s arbitration clause gives the job of arbitration to the NFL’s commissioner. It’s kind of like suing your employer and your old boss serving as the judge. Mike Greenberg of IJ drops by to explain why this meant the arbitration clause wasn’t enforceable under federal law. Then Jeff Redfern tells us of a case out in the Ninth Circuit where some attorneys got into hot water. They sued to try and change Arizona voting procedures with some aggressive allegations and rhetoric. But was it so aggressive that they should be sanctioned for filing the complaint? IJ’s Jeff Redfern  explains what the Ninth Circuit said about the matter, both at the panel stage and when the attorneys tried to go en banc. Some dissenting judges said whatever line there is between aggressive and frivolous it wasn’t crossed in this particular case. The team looks at how these issues especially come up in public interest litigation where “today’s crazy theory becomes tomorrow’s settled law.” Click here for transcript. Flores v. N.Y. Football Giants Lake v. Gates (panel) Lake v. Gates (en banc denial)

Short Circuit traveled to Chicago for a live recording on the eve of the Seventh Circuit’s biannual Judicial Conference. In front of a crowd of Seventh Circuit enthusiasts your host spoke with some experts about some of the court’s recent opinions and how the circuit works. That included Sarah Konsky of the University of Chicago, appellate specialist Chris Keleher, and IJ’s own John Wrench. “Collective” (not class) actions, prisoner appeals and summary judgment, and Fourth Amendment overnight-guests all make an appearance as does the life and times of Judge William Bauer.   STOP PRESS: On the eve of this episode dropping IJ won one of its pending cases before the Seventh Circuit! Richwine v. Matuszac, concerning Indiana's licensing of death doulas. So IJ's score in the Seventh is now 3-2, not 2-2 as John then-accurately reported. Click here for transcript. Richards v. Eli Lilly Whitaker v. Dempsey U.S. v. Walker Oral argument with Judge Bauer & timesheets

The Constitution separates “the judicial power” from “executive power.” Well, that’s the theory at least. A mixing of these powers led to some massive fines against a family farm. But Robert Fellner of IJ is happy to report that the Third Circuit recently ruled that’s a problem. In a case that IJ itself litigated, the court ruled that Article III of the Constitution guaranteed an independent judge when the federal government took the farm to court. The ruling is an application of a recent Supreme Court case and bodes well for separation of powers in the future. Then IJ’s Ben Field tells a very different story about a Russian woman who tried to arrange for an oligarch’s girlfriend to fly to the U.S. on a private jet in order to give birth. The problem was the U.S. government had sanctioned the oligarch and the woman working for him tried to evade that. Things didn’t work out and she didn’t show up for her court hearings in the U.S. The question the Second Circuit then looked at was is she a “fugitive”? She doesn’t live in the U.S. but she did used to visit the country a lot. The answer depends on a bit of a messy test about “fugitive disentitlement.” Click here for transcript. Sun Valley Orchards v. U.S. Dept. of Labor U.S. v. Bardakova The Rise and Rise of the Administrative State Episode with Scott Lincicome on tariffs

It’s Sixth Circuit week on Short Circuit with a couple Sixth Circuit lawyers who clerked on the Sixth Circuit and practice law in Michigan. (Which is where? That’s right, in the Sixth Circuit.) David Porter and Sean Dutton spin yarns about some recent Sixth Circuit opinions, including with a bit of an inside look on what the circuit’s judges think about dissenting from not going en banc. First we look at how “homely” a home needs to be to be a home. What even is a “home” for it to receive the protection of the Fourth Amendment, requiring a warrant and probable cause before government agents can search it? David discusses a recent case from the Sixth Circuit that opened the door on that question. Some warrantless inspectors barreled through the woods to then walk around a set of “mini-cabins.” Did that violate the Fourth Amendment, and if it did was it so clearly established that the inspectors can’t get qualified immunity? The court says yes and yes. We review how it got there and what it means going forward. Then Sean details a case about what rights someone has when they’re in prison and might have a path out of there. If the prison requires you to go through a program related to a sentence that the prisoner has already served, for another crime, in order to get parole, does that have due process implications? It comes down to what a “liberty interest” is. Sean also examines the writing style of the opinion, and we hold a colloquy about where legal opinions are well written and where they get a bit too glib. Finally, we have some fun with some sniping in a recent Sixth Circuit denial of en banc where the epic question is asked of when should a judge write—or not write—a dissental. Click here for transcript. Come to Short Circuit Live in Chicago on August 17! Short Circuit in YIMBYTown! (11am on Sept. 15) Mockeridge v. Harvey McClendon v. Washington Mitchell v. City of Benton Harbor Walden

Did you know the feds can send a subpoena to social media companies to find out stuff about your accounts and also order the same companies not to tell you? Turns out it happens all the time. But the law says that a court has to make an individualized assessment of each request. Some federal agents convinced a district court to just let them do all the paperwork and give a blanket gag order for a bunch of requests. Betsy Sanz of IJ joins us to explain why the DC Circuit said that’s just not good enough, although they avoided the Fourth Amendment issue. Then IJ’s Andrew Ward takes us to a meth deal gone bad and a “crazy high” speed chase. When the police arrest the driver, though, he’s pretty friendly—and probably high on marijuana. And he’s even acquitted of dealing meth—but not of being a drug user who owns a rifle he’s barely used that’s back at home in his closet. Is that a Second Amendment violation? It turns on a lot of history and tradition that kind of doesn’t make a lot of sense. Click here for transcript. Come to Short Circuit Live in Chicago on August 17! Short Circuit in YIMBYTown! (11am on Sept. 15) U.S. v. Perez In re: Sealed Case Short Circuit 325 Beyond the Brief episode “Cash Me if You Can”

On the heels of the trade deadline, Rob Johnson of IJ reports on some baseball news. But it doesn’t concern the latest in Major League Baseball. Instead, it’s about the business of baseball and how broad is the “business of baseball” exemption from the antitrust laws. There’s a baseball league in Puerto Rico that gave some pretty rough justice to an owner, who then took the league to court. Does the history and tradition of “baseball’s” exemption from antitrust laws apply to this league, or only to the American and National leagues back on the Mainland? Rob brings us the First Circuit’s answer and does so with the objective dispassion of a football fan. Then your host takes us out west for an unsolvable problem involving wild horses crisscrossing public and private lands in Wyoming. Are those horses actually “wild”? Doesn’t really matter to Congress, which mandates pretty impossible things that force the Tenth Circuit to send the government back through the administrative process. Then we close with some hot gossip: There’s no joy in Mudville. Click here for transcript. Come to Short Circuit Live in Chicago on August 17! Short Circuit in YIMBYTown! (11am on Sept. 15) Cangrejeros de Santurce Baseball Club v. Liga de Beisbol American Wild Horse Campaign v. Raby Flood v. Kuhn Federal Baseball Club v. National League Short Circuit 370 (on Wyoming crisscross property) Casey at the Bat readings at Librovox.org

Steve Lehto of Lehto’s Law rejoins Short Circuit—and for the first time on a YouTube episode—to spread the common sense he delivers daily on his own show. Steve shares a recent opinion from the Kansas Supreme Court about license plate covers. The police and lower courts had interpreted the law to make it a crime if a license plate cover blocked not just the actual license number but the name of the state. This basically turned a huge percentage of car owners into unknowing criminals. And gave the police a lot of discretion. But the court put a stop to that practice by saying it’s simply not how to read the statute. Further, Steve isn’t the only crossover guest on this episode. We also welcome Keith Neely of Beyond the Brief, another IJ podcast. Keith details an opinion from the Fourth Circuit upholding the federal ban on selling handguns to 18, 19, and 20 year olds. Is that OK under the Second Amendment? As with many constitutional issues these days, it depends on how you read the history. Click here for transcript. McCoy v. BATF Kansas v, Beck Bruen Blog post on New Jersey license plate case Lehto’s Law Beyond the Brief Mork Meets the Fonz and Lavern

We look into the gray area between a multi-level-marketing venture, like Amway, and a “pyramid scheme.” Appellate attorney Kyle Singhal joins us to discuss a matter of his from the Sixth Circuit where the court examined whether prosecutors in a mail-fraud case got over their skis by repeatedly calling what the defendants did a pyramid scheme. “Pyramid schemes” are bad, obvs., but they’re not actually a federal crime. So was it OK to use that term when speaking to the jury? Kyle explains what the court said in affirming the convictions. Then, Marie Miller of IJ gives us an update on a case she discussed last year in the Eighth Circuit. A police officer arrested a Missouri man for walking on the wrong side of the road. The court had said his First Amendment retaliation case was no good because there was probable cause for the (uncommonly silly) crime. But then the Supreme Court said give that another try. And the Eighth Circuit did and now has ruled the other way, allowing the case to go forward. Marie explains how the court changed its mind (a change in judges might have helped too). Click here for transcript. Come to Short Circuit Live in Chicago on August 17! US v. Maike Murphy v. Schmitt (2025) Murphy v. Schmitt (2023) Short Circuit 349 (episode on Murphy GVR)

Can the government force you to only exercise a constitutional right once a month? Could it do that with speech? Or practicing religion? How about keeping and bearing arms? IJ’s Will Aronin asks that question when discussing a California law that restricted gun purchases to buying one gun a month. The Ninth Circuit recently found the law violated the Second Amendment. That’s something the Ninth Circuit doesn’t do very often, so we made sure to take a close look at this “unicorn” of a case. Plus, frequent users of Sudafed may enjoy the conversation. Then John Wrench, the Assistant Director of IJ’s Center for Judicial Engagement, explains a recent Sixth Circuit decision about the government taking the blood of babies. The court addressed a couple constitutional challenges to Michigan’s practice of taking blood from babies when they are born, without parental consent, and then hanging onto the blood samples for 100 years. It said this did not violate the Fourth Amendment or the right of parents to direct the upbringing of their children. But this seemed to contradict what the same court—but different judges—had said earlier in the same case. Can they do that? Apparently.   Click here for transcript. Nguyen v. Bonta Kanuszewski v. Michigan HHS Bruen Rahimi

Is speaking to a yoga class speech? The Ninth Circuit recently proclaimed that the answer to that question is actually “yes.” But before you turn away from this episode because it simply parrots Captain Obvious, please know that it was not so obvious to the district court. Or the city of San Diego, which tried to define the teaching of yoga—but not the teaching of anything else—in public parks as conduct, not speech. Teaching all kinds of other things was fine, but teaching yoga to four or more people could land you in a twisted position. Paul Avelar of IJ gives some erudition on how the Ninth Circuit relied on a case that he litigated a few years ago to bring the First Amendment to the yoga instructors of California. Then IJ’s Marco Vasquez drives us to Arkansas where some hemp producers challenged the state’s ban on most hemp products. The challengers make a lot of hay out of the allowance for “continuously” transporting hemp through the state. Along the way the Eighth Circuit has to deal with a scrivener’s error. And what is one of those again? Click here for transcript. Hubbard v. San Diego Bio Gen v. Sanders IJ’s Brief in Chiles v. Salazar Bartleby, The Scrivener

Who doesn’t love a nice beard? It seems the firefighters in Atlantic City. One of their employees wants to wear a beard because of his religion. He doesn’t actually fight fires as part of his job, but there’s a possibility he’d be told he needs to and therefore he supposedly can’t have a beard because his special air mask wouldn’t fit. Does this violate the First Amendment’s protection of free exercise? Matt Liles of IJ reports on this case from the Third Circuit that digs into how “generally applicable” a law must be to not target someone’s religious practice. Then IJ’s Bob McNamara discusses a scary subject: statutes of limitations. Blowing one is every litigator’s nightmare. But which statute of limitations applies in a given case? For claims brought under Title IX, a federal ban on sex discrimination, that’s unclear. Bob breaks down a Fourth Circuit opinion that had to figure out what South Carolina law applies to Title IX claims in a case where a high schooler sued a school for not stopping sexual harassment. Is it a special state law on suing governmental entities? Or is it the most general state statute of limitations? Bob tells us the answer but also advises that this would all be a lot easier if Congress did its job and provided its own statute of limitations. Click here for transcript. Smith v. Atlantic City E.R. v. Beaufort County School Dist. Employment Division v. Smith Pogonologia

We at the Institute for Justice are increasingly involved with combatting retaliation against free speech. Which is why we were highly interested to hear from Daniel Cragg and his recent win at the Eighth Circuit. Dan is a Minneapolis attorney who regularly sues the government for all kinds of things. This particular case was about a doctor who made a few remarks that weren’t very politically popular at her place of work—a public hospital—at the height of the pandemic and cultural ferment in 2020. She lost her discrimination and retaliation claims at summary judgment but the Eight Circuit sent the retaliation claim back for trial. It also called her other claims “interlocutory.” We discuss the free speech issues at the heart of the matter but in addition your panel perplexes about how the court could think the other claims were interlocutory, considering the appeal was from a final judgment. Then Michael Bindas of IJ discusses a recent Ninth Circuit en banc opinion about a police shooting. The interesting thing to Michael’s eyes is how a concurrence treated a pair of substantive due process claims invoking the case Pierce v. Society of Sisters, which just celebrated its 100th anniversary. The panel dig into what the right recognized in Pierce has to do with a child’s claim for losing a parent, and what Plato’s Republic has to do with it all. Click here for transcript. Gustilo v. Hennepin Healthcare System Estate of Hernandez v. L.A. Pierce v. Society of Sisters Cato’s event on Pierce, including panel with Michael Meyer v. Nebraska at 100 Plato’s Republic (Book V)

Is making someone file a form “in the public interest”? The Fifth Circuit took a look at that age-old question in a recent case regarding the FCC and its gathering of demographic data. What might seem like a small issue opens the door to how the administrative state works, where agencies get their power, and how narrow the courts are reading those powers these days. IJ’s Bob Belden explains the twists and turns of this story that goes back several decades. Then Nick DeBenedetto of IJ walks us through a habeas case from the Sixth Circuit with a wild story about a murder—or was it a murder?—of a wife by her husband and whether the conviction was tainted because of the background of a detective. The detective, it turns out, told all kinds of lies to get hired before he investigated the defendant. Did those lies affect the conviction enough to violate the Constitution? See if you can render your own verdict. Click here for transcript. National Religious Broadcasters v. FCC Widmer v. Okereke Rebels on the Air by Jesse Walker

With the recent major tariff rulings we had to pull in a major tariff expert, Scott Lincicome of the Cato Institute. Scott digs into the “shocking decision,” as even he puts it, from the Court of International Trade declaring many of the recent “emergency” tariffs unlawful. He takes a look at what’s behind the opinion and what’s next as the case goes on appeal to the Federal Circuit and perhaps also to the Supreme Court. The law the tariffs are justified under might not even allow for tariffs, but ruling that way means the courts will have to not give the substantial deference to the President in these kinds of matters that they often have given in the past. Both the Major Questions Doctrine and the Nondelegation Doctrine loom and there’s some gaps that need to be filled. Then IJ’s Jeff Rowes describes a victory for free speech in the D.C. Circuit where the Attorney General of Texas tried to use a consumer fraud statute designed to remedy things like “defective air conditioners” against a journalism organization. Even though the court upheld a preliminary injunction, Jeff argues that the very fact the law was used in this way in the first place, in conjunction with the rich and powerful, is an ominous First Amendment warning. Plus, we dig into some “where are they now, updating cases from recent episodes. This includes one where IJ is trying to have applied to the states one of the last bits of the Bill of Rights that the Supreme Court has missed: The Seventh Amendment’s right to a civil jury trial. Click here for transcript. Call for Papers for our conference on Declarations of Rights from 1776! VOS Selections v. U.S. Media Matters v. Paxton Scott’s conversation with Rick Woldenberg from the DC tariff case Scott & Clark Packard’s study on tariff powers from last year IJ’s Seventh Amendment incorporation cert petition Corn Law Rhymes & Other Poems (1833) The Taxed Cake

Fans of truckers should enjoy this episode, although they may grow angry hearing about a truck stop that never was to be. Tahmineh Dehbozorgi of IJ tells us of a property owner in Georgia who wanted to turn his land by a highway into a truck stop. But the county was dead set against him, leading to a decades-long zoning battle. A gas station would be OK, but not if it looks more like a place where truckers can fuel their rigs and get a little rest. In the end, when the controversy finally reaches the Eleventh Circuit the rational-basis test squashes any chance the truck stop has because . . . well because it’s a rational-basis case. Then Suranjan Sen takes us to the Sixth Circuit where an eight-year-old wore a hat with a gun on it that also says “Come and Take It.” The student was asked to take it off ostensibly because of a recent shooting in a nearby school. Did that violate the First Amendment? The court claims it did not but the matter seems a close case under the relevant caselaw. The crew looks at the relevance of the Tinker case from the Vietnam War era and also where the “come and take it” phrase comes from. Did you know it’s a Battle of Thermopylae thing? Click here for transcript. Corey v. Rockdale County C.S. v. McCrumb Tinker v. Des Moines Sch. Dist. Angry Cheerleader Case Roll On (Eighteen Wheeler)