Archive for January, 2013

In Tobey v. Jones, the Fourth Circuit needed to decide whether Aaron Tobey’s First-Amendment-based Bivens claim for money damages against two TSA officers (Jones and Smith, their real last names) survived the federal government’s 12(b)(6) motion. These officers (TSOs) radioed for police assistance after Tobey, having been selected for “enhanced secondary screening” at a Richmond (VA) International Airport security screening checkpoint, stripped down to his running shorts and socks to reveal portions of the Fourth Amendment written on his bare chest. When the airport police arrived, they arrested Tobey. They then questioned him and ultimately released him after about an hour. Tobey boarded his plane without any further difficulty. A few months later he sued the TSOs (Jones and Smith), the airport police, the airport commission, and some higher-level officials at the commission, the Department of Homeland Security, and the TSA.

The district court (Judge Hudson, EDVA) dismissed all of the claims except for a First Amendment-based claim that Smith and Jones “caused [Tobey’s] seizure . . . because of the message conveyed by [his] silent, nonviolent expression of objection to the TSA’s screening policies . . . and thereby engaged in content and/or viewpoint discrimination.” The government appealed this denial.

A split panel of the Fourth Circuit affirmed. Judge Gregory, joined by Judge Duncan, held that Tobey’s complaint “plausibly set forth a claim that the TSA agents violated his clearly established First Amendment rights.” Judge Wilkinson authored an empassioned dissent.

Eugene Volokh and most commenters at Volokh Conspiracy have expressed agreement with the panel majority’s analysis. Are they  wrong about what “sounds right”? I think so. Not because of disagreement with Volokh’s take on the First Amendment, but because he focuses on First Amendment principles apart from the appropriate pleading rules and the particular facts of the case.

Viewed through the lens of Twombly and Iqbal, Tobey needed to plead facts rendering it plausible that the TSOs called the police because of disagreement with his message rather than because he stripped off his shirt and pants in the screening area. He did no such thing. Indeed, according to the district court, Tobey’s counsel conceded at oral argument that his behavior was bizarre, “and that the TSOs were justified in summoning the RIC Police for further inquiry.” It seems to me that should be the end of it, for that is all the TSOs are alleged to have done–summon the police. When people act in a concededly “bizarre” fashion in an airport screening area, the TSOs should call the police and let them handle the bizarreness. Whether the police should have handcuffed and arrested Tobey is a separate question from whether the TSOs should have called the police to deal with Tobey. And it is only that latter question that was at issue in the Fourth Circuit appeal.

I should also add that Judge Wilkinson’s take on the effect of taking off one’s shirt and pants in an airport screening area seems better grounded in the reality of modern air travel than Judge Gregory’s. Judge Wilkinson wrote that “[o]utside a few limited contexts, such as public swimming pools, removing one’s shirt and pants will always attract other people’s attention and distract them from whatever they happen to be doing.” Judge Gregory responds that “[p]assengers routinely remove clothing at an airport screening station, and in fact are required to do so by TSA regulations.” But this misses the point. Passengers do not routinely go bare-chested, nor are they are required to do so by TSA regulations. Judge Wilkinson may have overstated the case slightly in asserting that “[i]t is sheer fancy to think that defendants had anything on their minds other than eliminating the distraction that Tobey’s state of dishabille was causing.” But if so, only slightly. And in any event it was Tobey’s burden to allege facts making the alternative retaliation-for-protest explanation plausible.

Judge Gregory’s appeal to “autonomy and the celebration of difference” seems misplaced at an airport screening point. And he surely overstates the case when he writes that “[f]or us to hold today that it is reasonable to cause an arrest due to bizarre behavior and nothing more would violate the most basic [tenets] of our Constitution.” For that redescribes what the TSOs were alleged to have done (call the police) with what followed from that call through the decisions and actions of the police (Tobey’s arrest). Judge Gregory writes that “[i]t is an undoubtedly natural consequence of reporting a person to the police that the person will be arrested; especially in the scenario we have here, where TSA and RIC police act in close concert.” Yes, here, an arrest was a consequence. But to call it an “undoubtedly natural consequence” is to let the adverb and the adjective do too much work, depriving the police of any independent agency. Or so it seems to me.


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January 22 remains a day worth remembering. On this day in 1973, the Supreme Court promulgated its profoundly wrong decision in Roe v. Wade. At Mirror of Justice, Rick Garnett has some sober but hopeful reflections on Roe at 40.

Another date worth recalling is June 29. On that day in 1992, the Supreme Court issued Planned Parenthood of Southeastern Pennsylvania v. Casey. I share the view–most forcefully expressed by Michael Stokes Paulsen–that Casey is the worst constitutional decision of all time. (For Paulsen’s explanation, see Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995 (2002); summarized more recently in two columns at Public Discourse, available here and here.)

One axiom of some academic theories of constitutional law in recent decades has been that, for a theory to be right, it cannot yield the result that Brown v. Board of Education is wrong. I hope for the broad acceptance of a different axiom: Any theory of constitutional law is wrong if it yields the result that Casey is right.

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The twitterverse is alive with tweets about Justice Scalia’s headgear for today’s inauguration. At the risk of putting all the fun speculation to an end . . . The hat is a custom-made replica of the hat depicted in Holbein’s famous portrait of St. Thomas More. It was a gift from the St. Thomas More Society of Richmond, Virginia. We presented it to him in November 2010 as a memento of his participation in our 27th annual Red Mass and dinner.

[UPDATE: Many have asked for more details about Justice Scalia’s hat. It was made in Richmond, Virginia by milliner Camille Parham. Richmond lawyer and St. Thomas More Society executive committee member Stephen Reardon spearheaded our search for a “St. Thomas More hat” and presented the hat to Justice Scalia at the dinner after our Red Mass. A picture from the presentation and one from Justice Scalia’s visit earlier in the day to the University of Richmond School of Law are below.]


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God and the World is the second book that arose out of conversations between Joseph Cardinal Ratzinger and Peter Seewald. (The first was Salt of the Earth.) Here are a couple of excerpts from their conversations, on the general topic of flexibility, vocation, and following one’s inclinations:

[Seewald] People nowadays, in contrast to these disciples following Christ, have the idea that they can work out their path, put their lives together, by their own unaided efforts. They think that in any case no one has any clear identity any longer. Life is a flowing stream of illusions, according to what task or what scenario confronts us–or what desire. An either-or decision is in any case passé in the modern world; instead of that there is the new possibility of neither-nor.

[Ratzinger] Flexibility has become the all-sufficient watchword. we want to be able to react to new demands, and we hope, by changing jobs fast, to be able to climb the ladder as quickly and as high as possible. But I think there are still callings that demand the whole of a person. Being a doctor, for instance, or a teacher, is not something I can do just for two or three years, but is a calling that requires my whole lifetime. That is to say, even today there are tasks that are not a job that runs alongside my life, so to speak, in order to ensure I have money to live on. For a true calling, income is not the criterion, but the practicing of some skill in the service of mankind.

* * *

[Seewald] To stay with paths in life: many people have the notion that their life is a kind of film. And in this biographical filmstrip they suppose they should be able to make all the cuts and supervise the production of each scene themselves. One cannot avoid the thought: Why should I go out of my way in life, make special efforts, seek anything out, show self-control or faithfulness? That is, set out on this difficult path that the disciples follow with Jesus. Why should my life not just be simple and easy?

[Ratzinger] That is something only those people can afford who are born to luxury. That is a fantasy of people with property, which takes no account of the fact that, for the great majority of mankind, life is a struggle. On those grounds I would see this idea of choosing one’s own path in life as a selfish attitude and a waste of one’s vocation.

Anyone who thinks he already has it all, so that he can take what he wants and center everything on himself, is depriving himself of giving what he otherwise could. Man is not there to make himself, but to respond to demands made upon him. We all stand in a great arena of history and are dependent on each other. A man ought not, therefore, just to figure out what he would like, but to ask what he can do and how he can help. Then he will see that fulfillment does not lie in comfort, ease, and following one’s inclinations, but precisely in allowing demands to be made upon you, in taking the harder path. Everything else turns out somehow boring, anyway. Only the man who “risks the fire,” who recognizes a calling within himself, a vocation, an ideal he must satisfy, who takes on real responsibility, will find fulfillment. As we have said, it is not in taking, not on the path of comfort, that we become rich, but only in giving.

Source: Joseph Cardinal Ratzinger and Peter Seewald, God and the World, trans. Henry Taylor, Ignatius Press 2002.

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My only regret in reading Judge Sutton’s review of Judge Posner’s How Judges Think is that I did not read it (the review, that is) earlier.

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This NBC interview of Justice Sonia Sotomayor by Savannah Guthrie looks to have been conducted in a Catholic Church. Is that so? What accounts for that setting?

Justice Sotomayor does invoke God at one point:

Q: Do you think it’s good for the democratic process for the Court to be deciding these big, social issues of the day?

A: I don’t think of us, the democratic process, as being a static one where the Court announces, and that ends the dialogue. The Court announces, and the dialogue begins, and the approach in some instances has to be changed. But the society manages to do it.

Q: Do you look forward to those big, consequential cases?

A: Oh my God, look forward to them. I don’t think you can say anyone looks forward to controversy. I think that the day a Justice forgets that each decision comes at a cost to someone, then I think that you start losing your humanity.


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It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U. S. 1, 12 (1967) (relying, in an opinion for eight Justices, on the Due Process Clause).

Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 848 (1992)

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