How Mike Huckabee and Robert Bork Could Help Center Neil Gorsuch

SHERRY F. COLB

Cornell law professor Sherry F. Colb analyzes an unusual comment by former Arkansas Governor Mike Huckabee that a government restriction on the size of people’s Thanksgiving gathering would violate the Fourth Amendment’s guarantee against unreasonable searches and seizures. Colb describes a similar statement (in a different context) by conservative Supreme Court nominee Robert H. Bork during his (unsuccessful) confirmation hearings in 1987 and observes from that pattern a possibility that even as unenumerated rights are eroded, the Court might be creative in identifying a source of privacy rights elsewhere in the Constitution.

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Hines v. Quillivan

Docket: 19-40605

Opinion Date: December 2, 2020

Judge: Leslie Southwick

Areas of Law: Civil Rights, Constitutional Law

Plaintiff filed suit challenging Texas's physical-examination requirement for vets, which prohibits vets from offering individualized advice to pet owners unless the vet previously examined the animal. The district court rejected plaintiff's arguments and granted defendants' motion to dismiss. After oral argument, another panel of the Fifth Circuit issued its opinion in Vizaline, L.L.C. v. Tracy, 949 F.3d 927 (5th Cir. 2020), holding that general licensing regulations are not automatically immune from First Amendment scrutiny. Bound by Vizaline, the court concluded that plaintiff's First Amendment claims may be entitled to greater judicial scrutiny than Hines I allowed. The court explained that the relevant question is whether the state's licensing requirements regulate only speech, restrict speech only incidentally to their regulation of non-expressive professional conduct, or regulate only non-expressive conduct. As the Vizaline court did, the court reversed and remanded for the district court to make the initial evaluation of whether conduct or speech is being regulated. In regard to plaintiff's equal protection claim, the court agreed with the State that it is rational to distinguish between humans and animals based on the species' differing capabilities. The court explained that the law's differentiating telemedicine rules between medical doctors and veterinarians is a logical distinction. Accordingly, the court affirmed in part, reversed in part, and remanded.

United States v. Cano

Docket: 19-11297

Opinion Date: December 2, 2020

Judge: Higginbotham

Areas of Law: Criminal Law

The Fifth Circuit affirmed defendant's consecutive 24-month sentences for violating the terms of his supervised release. Defendant argued that the district court clearly gave significant weight to an improper factor—the need to promote respect for the law—because the district court "cited only this one reason when explaining its decision to impose two consecutive sentences" fifteen months above the high end of the guideline range. The court concluded that the district court's reliance on defendant's absconding in pronouncing sentence was not itself plain error. The court explained that the district court's passing reference to defendant's lack of respect for the law does not make it plain that the district court impermissibly used defendant's history of absconding. Furthermore, the court concluded that the district court's failure to consider defendant's first alleged self-surrender does not warrant reversal. Nor does the upward variance from the guidelines call into doubt the reasonableness of the sentence.