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SCOTUScast

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Rank #121 in Politics category

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Politics
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SCOTUScast is a project of the Federalist Society for Law & Public Policy Studies. This audio broadcast series provides expert commentary on U.S. Supreme Court cases as they are argued and issued. The Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. We hope these broadcasts, like all of our programming, will serve to stimulate discussion and further exchange regarding important current legal issues. View our entire SCOTUScast archive at http://www.federalistsociety.org/SCOTUScast

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SCOTUScast is a project of the Federalist Society for Law & Public Policy Studies. This audio broadcast series provides expert commentary on U.S. Supreme Court cases as they are argued and issued. The Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. We hope these broadcasts, like all of our programming, will serve to stimulate discussion and further exchange regarding important current legal issues. View our entire SCOTUScast archive at http://www.federalistsociety.org/SCOTUScast

iTunes Ratings

50 Ratings
Average Ratings
37
5
3
0
5

Excellent

By ARKloster - Jun 10 2017
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Broad, bipartisan views of SCOTUS cases

Excellent, dispassionate summaries & analyses

By Nate_1982 - Oct 13 2012
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Required listening for anyone who wants to follow the Supreme Court.

iTunes Ratings

50 Ratings
Average Ratings
37
5
3
0
5

Excellent

By ARKloster - Jun 10 2017
Read more
Broad, bipartisan views of SCOTUS cases

Excellent, dispassionate summaries & analyses

By Nate_1982 - Oct 13 2012
Read more
Required listening for anyone who wants to follow the Supreme Court.

Listen to:

Cover image of SCOTUScast

SCOTUScast

Updated 7 days ago

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SCOTUScast is a project of the Federalist Society for Law & Public Policy Studies. This audio broadcast series provides expert commentary on U.S. Supreme Court cases as they are argued and issued. The Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. We hope these broadcasts, like all of our programming, will serve to stimulate discussion and further exchange regarding important current legal issues. View our entire SCOTUScast archive at http://www.federalistsociety.org/SCOTUScast

Trinity Lutheran Church of Columbia v. Comer - Post-Argument SCOTUScast

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On April 19, 2017, the Supreme Court heard oral argument in Trinity Lutheran Church of Columbia v. Comer. The Learning Center is a licensed preschool and daycare that is operated by Trinity Lutheran Church of Columbia, Inc (Trinity). Though it incorporates religious instruction into its curriculum, the school is open to all children. The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants to organizations that qualify for resurfacing of playgrounds. Trinity’s application for such a grant was denied under Article I, Section 7 of the Missouri Constitution, which reads “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity sued, arguing that DNR’s denial violated the Equal Protection Clause of the Fourteenth Amendment and the First Amendment’s protections of freedom of religion and speech. The district court dismissed for failure to state a claim. Trinity moved for reconsideration, amending its complaint to include allegations that DNR had previously funded religious organizations with the same grant, but the district court denied again. The U.S. Court of Appeals for the Eighth Circuit upheld the decision, agreeing with both the dismissal and denial of motions. -- The question before the Supreme Court is whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has, according to the petitioner church, no valid Establishment Clause concern. -- To discuss the case, we have Hannah C. Smith, who is Senior Counsel of the Becket Fund for Religious Liberty.

Apr 28 2017

15mins

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TC Heartland LLC v. Kraft Foods Group Brands LLC - Post-Argument SCOTUScast

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On March 27, 2017, the Supreme Court heard oral argument in TC Heartland LLC v. Kraft Foods Group Brands LLC. TC Heartland LLC (Heartland) is organized under Indiana law and headquartered in Indiana. Kraft Food Brands LLC (Kraft) is organized under Delaware law with its principal place of business in Illinois. Kraft sued Heartland in federal district court in Delaware, alleging that products Heartland shipped to Delaware infringed on Kraft’s patents for similar products. Heartland moved to dismiss the claim, arguing that the federal court in Delaware lacked the necessary jurisdiction over Heartland’s person--i.e., “personal jurisdiction.” Alternatively, Heartland sought transfer of the case to a venue in the Southern District of Indiana. The district court denied the motion to dismiss, holding that Heartland’s contacts with Delaware were sufficient to justify the exercise of personal jurisdiction. The court also denied the request to transfer venue, citing precedent in the U.S. Court of Appeals for the Federal Circuit indicating that, under 28 U.S.C. Secs. 1391 and 1400, venue for a corporate defendant, including in a patent infringement suit, is proper in any district in which the defendant is subject to a federal court’s personal jurisdiction. -- Heartland then sought a writ of mandamus from the Federal Circuit ordering the district court to dismiss the case or transfer venue, arguing that Heartland did not “reside” in Delaware for purposes of the patent venue statute, 28 U.S.C. Sec. 1400. The Federal Circuit denied the writ, indicating that the lower court had acted properly and that Congress’ 2011 amendments to the venue statute did not provide cause to change the Federal Circuit’s prevailing interpretation of the statute. -- The question now before the Supreme Court is whether the patent venue statute, 28 U.S.C. § 1400(b), which provides that patent infringement actions “may be brought in the judicial district where the defendant resides[,]” is the sole and exclusive provision governing venue in patent infringement actions and is not affected by the statute governing “[v]enue generally,” 28 U.S.C. § 1391, which has long contained a subsection (c) that, where applicable, deems a corporate entity to reside in multiple judicial districts. -- To discuss the case, we have J. Devlin Hartline, who is Assistant Director, Center for the Protection of Intellectual Property (CPIP) and Adjunct Professor, Antonin Scalia Law School, George Mason University.

Apr 06 2017

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Bethune-Hill v. Virginia State Board of Elections

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On March 1, 2017, the Supreme Court decided Bethune-Hill v. Virginia State Board of Elections. Plaintiffs in Bethune-Hill each resided in one of twelve newly proposed majority-minority districts for the Virginia Legislature, created to satisfy Section 5 of the Voting Rights Act (VRA), which requires that any new districting plan must ensure that there be no “retrogression” in the ability of racial minorities to elect the candidate of their choice. Plaintiffs argued that the new districts constituted racial gerrymanders that violated the Equal Protection Clause of the Fourteenth Amendment. A three-judge panel of the U.S. District Court for the Eastern District of Virginia disagreed, holding that the plaintiffs had failed to establish that race was the predominant factor in the creation of 11 of the 12 challenged districts. The district court also held that, although race was the predominant factor in the creation of one district--District 75--the state legislature had satisfied the requirements of a compelling state interest and narrow tailoring. -- On appeal to the United States Supreme Court, plaintiffs argued that the district court panel erred in a number of respects, including in determining that that race could not predominate unless its use resulted in an “actual conflict” with traditional districting criteria. Plaintiffs also argued that the use of race in drawing House District 75 was not narrowly tailored to serve a compelling government interest. -- By a vote of 7-1, the Supreme Court affirmed the judgment of the district court panel in part, vacated it in part, and remanded the case. In an opinion delivered by Justice Kennedy, the Court held that the district court panel had employed an incorrect legal standard to determine whether race predominated, noting that challengers are permitted to establish racial predominance in the absence of an “actual conflict” by presenting direct evidence of the legislative purpose and intent or other compelling circumstantial evidence. The Court rejected Plaintiffs’ challenge to District 75, however, determining that the legislature’s action ultimately survived strict scrutiny. -- Justice Kennedy’s majority opinion was joined by the Chief Justice and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito filed an opinion concurring in part and concurring in the judgment. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part. --
To discuss the case, we have Jack Park, who is Of Counsel at Strickland Brockington Lewis LLP.

May 15 2017

11mins

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Trinity Lutheran Church of Columbia v. Comer - Post-Decision SCOTUScast

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On June 26, 2017, the Supreme Court decided Trinity Lutheran Church of Columbia v. Comer. The Learning Center is a licensed preschool and daycare that is operated by Trinity Lutheran Church of Columbia, Inc (Trinity Lutheran). Though it incorporates religious instruction into its curriculum, the school is open to all children. The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants to organizations that qualify for resurfacing of playgrounds. Trinity Lutheran’s application for such a grant was denied under Article I, Section 7 of the Missouri Constitution, which reads “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity Lutheran sued, arguing that DNR’s denial violated the Equal Protection Clause of the Fourteenth Amendment and the First Amendment’s protections of freedom of religion and speech. The district court dismissed the suit and a divided panel of the U.S. Court of Appeals for the Eighth Circuit affirmed, concluding that the First Amendment’s Free Exercise Clause did not compel the State to disregard the broader anti-establishment principle reflected in its own constitution. -- By a vote of 7-2, the United States Supreme Court reversed the judgment of the Eighth Circuit and remanded the case. In an opinion by Chief Justice Roberts, the Court held that the DNR’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status. -- Justices Kennedy, Alito, and Kagan joined the Chief Justice’s majority opinion in full, and Justices Thomas and Gorsuch joined except as to footnote 3. Justice Thomas filed an opinion concurring in part, in which Justice Gorsuch joined. Justice Gorsuch filed an opinion concurring in part, in which Justice Thomas joined. Justice Breyer filed an opinion concurring in the judgment. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined. -- And now, to discuss the case, we have David A. Cortman, who was lead counsel in Trinity Lutheran Church of Columbia v. Pauley and is Senior Counsel and Vice President of U.S. Litigation, Alliance Defending Freedom.

Jul 18 2017

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Federal Energy Regulatory Commission v. Electric Power Supply Association - Post-Decision SCOTUScast

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On January 25, 2016, the Supreme Court decided several energy cases consolidated under the heading Federal Energy Regulatory Commission v. Electric Power Supply Association. These cases concern a practice called “demand re­sponse,” in which operators of wholesale markets pay electricity consumers for commitments not to use power at certain times. In the regulation challenged here, the Federal Energy Regulatory Commission (FERC) required those market operators, in specified circumstances, to compensate the two services equivalently—that is, to pay the same price to demand response providers for conserving energy as to generators for making more of it. The U.S. Court of Appeals for the D.C. Circuit vacated this regulation, however, holding it beyond the FERC’s authority under the Federal Power Act as well as arbitrary and capricious, for failure to justify adequately a potential windfall to demand response providers. -- The Supreme Court granted certiorari on two questions: (1) Does the Federal Power Act permit FERC to regulate these demand response transactions at all, or does any such rule impinge on the States’ residual authority? (2) Even if FERC has the requisite statutory power, did FERC fail to justify adequately why demand response providers and electricity producers should receive the same compensation? -- By a vote of 6-2, the Court reversed the judgment of the D.C. Circuit and remanded the case, holding that (1) FERC did possess adequate regulatory authority under the Federal Power Act; and (2) FERC’s decision to compensate demand response providers at locational marginal price was not arbitrary and capricious. Justice Kagan delivered the opinion of the Court, in which the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined. Justice Scalia filed a dissenting opinion in which Justice Thomas joined. Justice Alito was recused from this case. -- To discuss the case, we have James Coleman, who is assistant professor at the University of Calgary, Faculty of Law and Haskayne School of Business.

Feb 17 2016

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Nieves v. Bartlett -- Post-Argument

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On November 26, 2018, the Supreme Court heard argument in Nieves v. Bartlett, a case considering the merit of retaliatory arrest claims in the presence of probable cause for arrest.
In 2014, Russell Bartlett was arrested by two police officers, Sergeant Nieves and Trooper Weight, during an outdoor party that was part of the annual “Arctic Man” festival held in Alaska’s Hoodoo Mountains. Bartlett, who appeared intoxicated, approached Trooper Weight, who had been speaking to a minor regarding suspected underage drinking, and loudly demanded that Weight stop. When Trooper Weight pushed Bartlett back to create space between the two men, Nieves, who had observed the contact, ran over and a struggle ensued. The officers subdued and arrested Bartlett, who was later released from detention without injury. Although the state ultimately declined to prosecute Bartlett on charges of disorderly conduct and resisting arrest, the prosecutor indicated his belief in the existence of probable cause for that arrest.
Bartlett filed suit against the officers in federal district court, claiming false arrest, excessive force, malicious prosecution, and retaliatory arrest. The district court granted summary judgment to Sergeant Nieves and Trooper Weight on qualified immunity grounds, but the U.S. Court of Appeals reversed that judgment as to the retaliatory arrest claim and remanded the case. Under circuit precedent, the Court concluded, “an individual has a right to be free from retaliatory police action, even if probable cause existed for the action.” The Supreme Court granted the officers’ subsequent petition for certiorari, however, to address whether probable cause defeats a First Amendment retaliatory-arrest claim under the civil rights statute 42 U.S.C. § 1983.
To discuss the case, we have Lisa Soronen, Executive Director of the State and Local Legal Center.

Feb 07 2019

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Matal v. Tam - Post-Decision SCOTUScast

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On June 19, 2017, the Supreme Court decided Matal v. Tam. Simon Tam of The Slants, an Asian American rock band, applied to register the band’s name with the U.S. Trademark Office, but the application was denied. The Office claimed that the name would likely be disparaging towards “persons of Asian descent,” citing the Disparagement Clause of the Lanham Act of 1946, which prohibits trademarks that “[consist] of or [comprise] immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Tam appealed to a board within the Office but was again denied. On appeal, the U.S. Court of Appeals for the Federal Circuit, ultimately held en banc that the Disparagement Clause violated the First Amendment on its face. -- By a vote of 8-0, the Supreme Court affirmed the judgment of the Federal Circuit. In an opinion by Justice Alito, the Court held that the Disparagement Clause of the Lanham Act violates the First Amendment's Free Speech Clause. Parts I, II, and III-A of Justice Alito’s majority opinion were joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Justice Thomas joined except for Part II. Parts III-B, III-C, and IV of Justice Alito’s majority opinion were joined by the Chief Justice and Justices Thomas and Breyer. Justice Kennedy filed an opinion concurring in part and concurring in the judgment, in which Justices Ginsburg, Sotomayor, and Kagan joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Gorsuch took no part in the consideration or decision of the case. -- To discuss the case, we have Michael R. Huston, who is Associate Attorney at Gibson Dunn & Crutcher LLP.

Jun 29 2017

15mins

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Gill v. Whitford - Post-Argument SCOTUScast

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On October 3, 2017, the Supreme Court heard argument in Gill v. Whitford, a case involving claims of partisan gerrymandering. In Wisconsin’s 2010 elections, Republicans won the governorship and acquired control of the state senate. In 2011, the Wisconsin legislature adopted a redistricting plan, Act 43, for state legislative districts. With Act 43 in effect Republicans expanded their legislative control in subsequent elections, reportedly winning 60 of 99 seats in the State Assembly with 48.6% of the statewide two-party vote in 2012, and 63 of 99 seats with 52% of the statewide two-party vote in 2014. In 2015 twelve Wisconsin voters sued in federal court, alleging that Act 43 constituted a statewide partisan gerrymander in violation of the First and Fourteenth Amendments to the U.S. Constitution. Defendants’ motions to dismiss and for summary judgment were denied, and following trial a divided three-judge district court panel invalidated Act 43 statewide. Act 43, the majority concluded, impermissibly burdened the representational rights of Democratic voters by impeding their ability to translate their votes into legislative seats even when Republicans were in an electoral minority. The court enjoined further use of Act 43 and ordered that a remedial redistricting plan be enacted, but the United States Supreme Court stayed that judgment pending resolution of this appeal.
The questions before the Supreme Court are as follows: (1) Whether the district court, in holding that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan instead of requiring a district-by-district analysis, ran afoul of the Supreme Court’s 2004 decision in Vieth v. Jubelirer; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in the Supreme Court’s 1986 decision in Davis v. Bandemer; (4) whether the defendants are entitled to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.
To the discuss the case, we have David Casazza, Associate at Gibson Dunn & Crutcher.

Oct 20 2017

14mins

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California Public Employees’ Retirement System v. ANZ Securities - Post-Argument SCOTUScast

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On April 17, 2017, the Supreme Court heard oral argument in California Public Employees’ Retirement System v. ANZ Securities. Between July 2007 and January 2008, Lehman Brothers raised over $31 billion through debt offerings. California Public Employees’ Retirement System (CalPERS), the largest pension fund in the country, purchased millions of dollars of these securities. CalPERS sued Lehman Brothers in 2011, and their case was merged with another retirement fund’s putative class action suit against Lehman Brothers and transferred to a New York district court. Later that year, the other parties settled, but CalPERS decided to pursue its own claims individually. The district court dismissed for untimely filing, and the U.S. Court of Appeals for the Second Circuit affirmed. -- The questions now before the Supreme Court is whether the filing of a putative class action serves, under the American Pipe & Construction Co. v. Utah rule, to satisfy the three-year time limitation in Section 13 of the Securities Act with respect to the claims of putative class members. -- To discuss the case, we have Paul Stancil, who is Professor of Law at Brigham Young University.

May 17 2017

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Washington State Department of Licensing v. Cougar Den Inc. - Post-Decision

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On March 19, 2019, the Supreme Court decided Washington State Department of Licensing v. Cougar Den, Inc., a case involving the 1855 Treaty between the United States and the Yakama Nation of Indians, and whether the “right to travel” granted within the treaty preempts the state’s fuel tax on the importation of fuel.
Cougar Den, Inc. is a wholesale fuel importer that is owned by a member of the Yakama Nation. Cougar Den imports fuel from Oregon via Washington public highways to the Yakama Reservation where it is sold to Yakama-owned gas stations within the reservation. In 2013, the Washington State Department of Licensing, because Cougar Den imports the gas by using Washington public highways, assessed the importer $3.6 million in taxes, penalties, and licensing fees. Cougar Den appealed to the Washington Superior Court, claiming that the 1855 Treaty between the United States and the Yakama Nation preempts this tax, since it reserves, among other things, the “right, in common with citizens of the United States, to travel upon all public highways.” The Washington Superior Court held that the tax was preempted by the Treaty, and the Washington Supreme Court affirmed that judgment on appeal.
Washington then petitioned the U.S. Supreme Court for certiorari, arguing that the 1855 treaty does not forbid the State from imposing a state-wide tax on all fuel importers who transport fuel via ground transportation, including those members of the Yakama Nation. The Supreme Court granted certiorari to consider whether the 1855 treaty preempts this importation tax on members of the Yakama Nation.
By a vote of 5-4, the Supreme Court affirmed the judgment of the Supreme Court of Washington, but without a majority opinion. Justice Breyer, joined by Justices Sotomayor and Kagan, concluded for a plurality that “the ‘right to travel’ provision of the 1855 Treaty between the United States and the Yakama Nation of Indians pre-empts the state’s fuel tax as applied to Cougar Den’s importation of fuel by public highway for sale within the reservation.” Justices Gorsuch and Ginsburg filed an opinion concurring in the judgment--thereby providing the necessary additional votes to affirm the lower court--but on a different rationale. Unchallenged factual findings as to the Yakamas’ understanding of the 1855 treaty terms, they reasoned, indicate that the treaty “does not permit encumbrances on the ability of tribal members to bring their goods to and from market.” Chief Justice Roberts dissented, joined by Justices Thomas, Alito, and Kavanaugh. Justice Kavanaugh also filed a dissenting opinion, which was joined by Justice Thomas.
To discuss the case, we have Tom Gede, Principal at Morgan Lewis.

Mar 28 2019

12mins

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Friedrichs v. California Teachers Association - Post-Argument SCOTUScast

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On January 11, 2016, the Supreme Court heard oral argument in Friedrichs v. California Teachers Association. Under California law and existing Supreme Court precedent, unions can become the exclusive bargaining representative for the public school employees of their district and establish an “agency shop” arrangement requiring public school employees either to join the union or pay a fee to support the union’s collective bargaining activities. Although the First Amendment prohibits unions from compelling non-members to support activities unrelated to collective bargaining, in California non-members must affirmatively “opt out” to avoid paying for these unrelated or “nonchargeable” expenses. -- Here a group of public school employees sued the California Teachers Association and various other entities, arguing that the agency shop arrangement itself--as well as the opt-out requirement--violated the First Amendment. The district court denied their claim and the U.S. Court of Appeals for the Ninth Circuit affirmed based on existing precedent and the 1997 Supreme Court decision Abood v. Detroit Board of Education. -- The two questions now before the Supreme Court are: (1) Whether the Abood precedent should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech. -- To discuss the case, we have Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law, New York University School of Law and Professor Emeritus and a senior lecturer at the University of Chicago Law School.

Jan 13 2016

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Timbs v. Indiana - Post-Decision SCOTUScast

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On February 20, 2019, the Supreme Court decided Timbs v. Indiana, a case involving the incorporation of the Eighth Amendment’s excessive fines clause against the States.
Following his arrest en route to a controlled drug purchase after having previously purchased about $400 worth of heroin from undercover police officers, Tyson Timbs pled guilty to felony counts of drug dealing and conspiracy to commit theft, and was sentenced to a year of home detention and several years of probation, plus roughly $1,200 in police costs and related fees. In addition, the State of Indiana sought forfeiture of Timbs’ Land Rover, which he had purchased using $42,000 of his late father’s life insurance proceeds. Indiana claimed that it could seize the car because it had been driven to buy and transport heroin, even though the car was worth more than four times the maximum fine permitted for Timbs’ drug conviction. The Supreme Court of Indiana upheld the forfeiture against an Eighth Amendment challenge on the grounds that the U.S. Supreme Court had never incorporated that amendment’s “excessive fines” clause against the states. The United States Supreme Court granted certiorari to consider the issue.
By a vote of 9-0, the Supreme Court vacated the judgment of the Supreme Court of Indiana and remanded the case. In an opinion delivered by Justice Ginsburg, the Supreme Court held that the Fourteenth Amendment incorporates the Eighth Amendment’s excessive fines clause against the States. Justice Ginsburg’s majority opinion was joined by the Chief Justice and Justices Breyer, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh. Justice Gorsuch filed a concurring opinion. Justice Thomas filed an opinion concurring in the judgment.
To the discuss the case, we have Christopher Green, Associate Professor of Law and H.L.A. Hart Scholar in Law and Philosophy at University of Mississippi School of Law.

Mar 20 2019

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Nieves v. Bartlett - Post-Decision SCOTUScast

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On May 28, 2019, the Supreme Court decided Nieves v. Bartlett, a case that considers the conditions a plaintiff must meet to prevail on a claim of retaliatory arrest by law enforcement.
State troopers Luis Nieves and Bryce Weight arrested Russell Bartlett during the 2014 “Arctic Man” winter sports festival held in Alaska’s Hoodoo Mountains. According to the officers, an apparently intoxicated Bartlett started yelling at Sergeant Nieves when the latter asked partygoers to move a beer keg to make it less accessible to minors. Several minutes later, when Trooper Weight asked a minor whether the minor and underage friends had been drinking, Bartlett approached, inserted himself between Weight and the minor, and yelled that Weight should not speak with the minor. Weight contends Bartlett then approached him combatively and Weight pushed him back. Sergeant Nieves, seeing the altercation, hurried over and arrested Bartlett. When Bartlett was slow to comply, the officers forced him to the ground. Bartlett denies being aggressive, and contends that after he was handcuffed Nieves said: “[B]et you wish you would have talked to me now.”
Although Bartlett was charged with disorderly conduct and resisting arrest, the State ultimately dismissed the criminal charges against him. Bartlett then sued the officers in federal district court under 42 U.S.C. §1983, alleging that they had arrested him in retaliation for his speech, thereby violating his First Amendment rights. The court granted judgment in favor of the officers, concluding that they had probable cause to arrest Bartlett and that the existence of probable cause necessarily defeated Bartlett’s retaliation claim. The U.S. Court of Appeals for the Ninth Circuit reversed, however, arguing that even in the face of probable cause a claim of retaliatory arrest can prevail where the officers’ conduct would chill a person of ordinary firmness from First Amendment activity, and where the desire to chill speech was a “but for” cause of the arrest. The U.S. Supreme Court then granted certiorari to clarify the applicable legal standard.
By a vote of 6-3, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In an opinion delivered by Chief Justice Roberts, the court held that the existence of probable cause defeats a claim of retaliatory arrest as a matter of law--unless the plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. The Chief Justice’s majority opinion was joined by Justices Breyer, Alito, Kagan, and Kavanaugh in full, and by Justice Thomas except as to Part II-D. Justice Thomas also filed an opinion concurring in part and concurring in the judgment. Justice Gorsuch filed an opinion concurring in part and dissenting in part. Justice Ginsburg filed an opinion concurring in the judgment in part and dissenting in part. Justice Sotomayor also dissented.

Oct 11 2019

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Kahler v. Kansas & Ramos v. Louisiana Post-Argument SCOTUScast

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On October 7, 2019, the Supreme Court heard oral arguments in Kahler v. Kansas and Ramos v. Louisiana, both of which raise questions of constitutional criminal law.
In Kahler, a jury convicted James Kahler of capital murder. Among other things, he objected at trial to a Kansas statute limiting any “mental disease or defect” defense to formation of the requisite mental state for the charged offense. The statute, Kahler argued, denied him due process by depriving him of the ability to present an insanity defense. The Supreme Court of Kansas, following its precedent, noted that state law had deliberately “abandon[ed] lack of ability to know right from wrong as a defense,” and rejected Kahler’s argument. The U.S. Supreme Court subsequently granted certiorari to consider whether the Eighth and Fourteenth Amendments to the U.S. Constitution permit a state to abolish the insanity defense.
In Ramos, Evangelisto Ramos was convicted of second-degree murder by the vote of 10 of 12 jurors. Challenging his conviction, Ramos argued that Louisiana’s statutory scheme permitting non-unanimous jury verdicts in non-capital felony cases violated his right to equal protection under the Fourteenth Amendment to the U.S. Constitution. Relying on its precedent, the Louisiana Supreme Court rejected Ramos’ argument. The U.S. Supreme Court subsequently granted certiorari to consider whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous jury verdict (in criminal cases) against the states.
To discuss the cases, we have GianCarlo Canaparo, Legal Fellow at the Heritage Foundation.

Oct 25 2019

24mins

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Fisher v. University of Texas at Austin - Post-Argument SCOTUScast

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On December 9, 2015, the Supreme Court heard oral argument in Fisher v. University of Texas at Austin. This is the second time the case has come before the high court. -- Abigail Fisher, a white female, applied for admission to the University of Texas but was denied. Fisher sued the University and argued that the use of race as a consideration in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the University’s admissions process was constitutional, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The case went to the Supreme Court (Fisher I), which held that the appellate court erred in how it applied the strict scrutiny standard, improperly deferring to the University’s good faith in its use of racial classifications. On remand the Fifth Circuit again ruled in favor of the University, deeming its use of race in the admissions process narrowly tailored to a legitimate interest in achieving “the rich diversity that contributes to its academic mission.” -- The question in this case is whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher I. -- To discuss the case, we have Joshua P. Thompson who is Principal Attorney at Pacific Legal Foundation.

Feb 11 2016

19mins

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Hernandez v. Mesa - Post-Decision SCOTUScast

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On June 26, 2017, the Supreme Court decided Hernandez v. Mesa. In 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, died after being shot near the border between El Paso, Texas and Juarez, Mexico by Jesus Mesa, Jr., a U.S. Border Patrol Agent. Hernandez’s parents, who contend that their son was on Mexican soil at the time of the shooting, sued Mesa in federal district court in Texas, alleging violations of the Fourth and Fifth Amendments. After hearing the case en banc, the U.S. Court of Appeals for the Fifth Circuit ultimately ruled in favor of Mesa, concluding that Hernandez could not assert a Fourth Amendment claim and that Mesa was entitled to qualified immunity on the parents’ Fifth Amendment claim. -- In granting certiorari, the U.S. Supreme Court directed the parties to address whether Hernandez’s parents could even raise their claims under Bivens v. Six Unknown Federal Narcotics Agents, which, sovereign immunity notwithstanding, recognized an implied right of action for damages against federal officers alleged to have violated a citizen’s constitutional rights. Ultimately, the Court vacated the judgment of the Fifth Circuit and remanded the case. -- In a per curiam opinion, the Court underscored that a Bivens remedy is not available when "special factors counsel[] hesitation in the absence of affirmative action by Congress," and noted that the Court had recently clarified in Ziglar v. Abbasi “what constitutes a special factor counselling hesitation.” The Fifth Circuit, the Court directed, should on remand resolve in the first instance the extent to which Abbasi may bear on this case. The Court acknowledged that the Fifth Circuit did not address the Bivens issue because that court had concluded that Hernandez lacked any Fourth Amendment rights to assert--but the Supreme Court considered it imprudent to resolve such a consequential question without a resolution of the Bivens issue first. Finally, the Court indicated that the Fifth Circuit had erred in finding qualified immunity for Mesa regardless of any Fifth Amendment violation because the Fifth Circuit had relied on facts about Hernandez’s nationality and ties to the United States that were unknown to Mesa at the time of the shooting. -- Justice Thomas filed a dissenting opinion. Justice Breyer filed a dissenting opinion, in which Justice Ginsburg joined. Justice Gorsuch took no part in the consideration or decision of this case. -- To discuss the case, we have Steven Giaier, who is Senior Counsel, House Committee on Homeland Security.

Jul 24 2017

17mins

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Packingham v. North Carolina - Post-Decision SCOTUScast

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On June 19, 2017, the Supreme Court decided Packingham v. North Carolina. Lester Packingham was convicted in 2002 of taking “indecent liberties” with a minor in violation of North Carolina law, and sentenced to prison time followed by supervised release. In 2010, he was arrested after authorities came across a post on his Facebook profile--which he had set up using an alias--in which he thanked God for having a parking ticket dismissed. Packingham was charged with, and convicted of, violating a North Carolina law that restricted the access of convicted sex offenders to “commercial social networking” websites. -- Packingham challenged his conviction on First Amendment grounds, arguing that the North Carolina statute unlawfully restricted his freedom of speech and association, but the Supreme Court of North Carolina ultimately rejected his claim. The website access restriction, the Court concluded, was a content-neutral, conduct-based regulation that only incidentally burdened Packingham’s speech, was narrowly tailored to serve a substantial governmental interest, and left open ample alternative channels of communication. -- By a vote of 8-0, the U.S. Supreme Court reversed the judgment of the Supreme Court of North Carolina and remanded the case. In an opinion by Justice Kennedy, the Court held that the North Carolina statute, which makes it a felony for a registered sex offender "to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages,” impermissibly restricts lawful speech in violation of the First Amendment. Justice Kennedy’s majority opinion was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito filed an opinion concurring in the judgment, in which the Chief Justice and Justice Thomas joined. Justice Gorsuch took no part in the consideration or decision of the case. -- To discuss the case, we have Ilya Shapiro, who is Senior Fellow in Constitutional Law at the Cato Institute.

Jun 29 2017

11mins

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Gamble v. United States - Post-Decision SCOTUScast

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On June 17, 2019, the Supreme Court decided Gamble v. United States, a case challenging the validity of the "separate sovereigns" exception to the Double Jeopardy Clause of the U.S. Constitution’s Fifth Amendment.
In 2015 Terance Gamble, who had previously been convicted of second-degree robbery in Alabama state court, pleaded guilty in state court to possessing a firearm in violation of Alabama’s law against firearm possession by anyone convicted of a “crime of violence.” Federal prosecutors thereafter relied on the same facts to charge Gamble with violating the federal statute that forbids convicted felons to possess a firearm. Gamble moved to dismiss the federal charge, arguing that the Double Jeopardy Clause precluded a second conviction for essentially the same offense. The district court and the U.S. Court of Appeals for the Eleventh Circuit rejected Gamble’s argument due to the “dual sovereignty” or “separate sovereigns” doctrine, which holds that two offenses are not the same for Double Jeopardy purposes when pursued by separate (here, state and federal) sovereigns. The Supreme Court granted certiorari to determine whether the separate sovereigns doctrine should be overturned.
By a vote of 7-2, the Supreme Court affirmed the judgment of the Eleventh Circuit. Justice Alito delivered the opinion of the Court, declining to overturn the dual sovereignty doctrine. His majority opinion was joined by Chief Justice Roberts and Justices Thomas, Breyer, Sotomayor, Kagan, and Kavanaugh joined. Justice Thomas filed a concurring opinion. Dissenting opinions were filed by Justice Gorsuch and Justice Ginsburg.
To discuss the case, we have Clark Neily, Vice President for Criminal Justice at the Cato Institute.

Aug 16 2019

9mins

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Carpenter v. Murphy - Post-Argument SCOTUScast

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On November 27, 2018, the Supreme Court heard argument in Carpenter v. Murphy, a case considering the 1866 territorial boundaries of the Creek Nations and Indian country jurisdiction.
In 1999, Patrick Murphy, a member of the Muscogee (Creek) Nation confessed to the killing of George Jacobs. The State of Oklahoma charged him with murder and he was convicted in state court, receiving the death penalty. In 2004, Murphy sought post-conviction relief in federal district court, arguing that the Oklahoma state courts had lacked jurisdiction because the federal Major Crimes Act requires that a member of an Indian Nation alleged to have committed murder in Indian territory be tried in federal court. The Oklahoma Court of Criminal Appeals rejected this argument, concluding Murphy had not shown that the site of the murder fell within Indian territory.
Murphy thereafter sought habeas relief in federal district court, again raising his jurisdictional challenge (among other claims). The district court rejected his argument, but granted a certificate of appealability on the issue. On appeal, the U.S. Court of Appeals for the Tenth Circuit ruled in Murphy’s favor. Noting the parties’ agreement that the murder occurred within the Creek Reservation if Congress had not disestablished it or diminished its borders, the Court--invoking the Supreme Court’s 1984 decision Solem v. Bartlett--concluded that Congress had not done so. As a result, the Oklahoma courts lacked jurisdiction to charge and try Murphy for murder. Chief Judge Tymkovich, concurring in the denial of Oklahoma’s motion for rehearing en banc, however, suggested the case would benefit from Supreme Court review. He noted, among other things, that “the boundaries of the Creek Reservation outlined by the panel opinion encompass a substantial non-Indian population, including much of the city of Tulsa; and Oklahoma claims the decision will have dramatic consequences for taxation, regulation, and law enforcement.”
The Supreme Court subsequently granted certiorari to consider whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a).
To discuss the case, we have Troy Eid, Shareholder at Greenberg Traurig.

Mar 11 2019

39mins

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Iancu v. Brunetti Post-Decision Podcast

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On June 24, 2019, the Supreme Court decided Iancu v. Brunetti, a case considering whether a provision of the Lanham Act prohibiting the registration of “immoral or scandalous” trademarks infringes the First Amendment.
Business owner Erik Brunetti applied to register his clothing brand’s trademark, “FUCT,” (pronounced as the individual letters F-U-C-T) but was refused by the U.S. Patent and Trademark Office (PTO) because the Lanham Act prohibits registration of marks that consist of or comprise “immoral or scandalous” matter. The PTO Trademark Trial and Appeal Board deemed the mark vulgar and indicated that it carried “negative sexual connotations,” and in association with Brunetti’s website imagery and products conveyed misogyny, depravity, and violence. Brunetti then appealed to the U.S. Court of Appeals for the Federal Circuit, which held that the Lanham Act’s prohibition violated the First Amendment. The Supreme Court then granted certiorari to address the lower court’s invalidation of the federal statute.
By a vote of 6-3, the Supreme Court upheld the judgment of the Federal Circuit. In an opinion delivered by Justice Kagan, the Court held that the Lanham Act prohibition on the registration of “immoral” or “scandalous” trademarks constitutes viewpoint discrimination that infringes the First Amendment.
Justice Kagan’s majority opinion was joined by which Justices Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh. Justice Alito filed a concurring opinion. Justice Breyer and Chief Justice Roberts filed opinions concurring in part and dissenting in part. Justice Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined.
To discuss the case, we have Thomas Berry, Attorney at the Pacific Legal Foundation.

Jul 30 2019

20mins

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Allen v. Cooper - Post-Argument SCOTUScast

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On Nov. 5, 2019, the U.S. Supreme Court heard argument in Allen v. Cooper, which involves a dispute over the way state sovereign immunity and federal copyright law interact when an author alleges state infringement of that author’s federal copyright.
Petitioner Frederick Allen and his company, Nautilus Productions, contend that North Carolina violated their federal copyrights by publishing video and photographic footage that Allen had taken of the pirate Blackbeard’s sunken flagship, Queen Anne’s Revenge. Allen also challenges the validity of a recently passed North Carolina statute providing that photographs and video recordings of shipwrecks in the custody of North Carolina are public records. This law, he contends, was enacted in bad faith to undermine his copyright claim.
Allen and Nautilus sued North Carolina and various of its officials in federal district court. Although the district court rejected defendants’ invocation of sovereign immunity from suit, the U.S. Court of Appeals for the Fourth Circuit reversed that judgment, concluding that the Copyright Remedy Clarification Act does not validly abrogate Eleventh Amendment sovereign immunity, which ultimately shields respondents from all of Allen’s and Nautilus’s claims.
The U.S. Supreme Court subsequently granted certiorari to consider whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act in providing remedies for authors of original expression whose federal copyrights are infringed by states.
To discuss the case, in this special panel episode, we have Zvi Rosen, Visiting Scholar and Professorial Lecturer in Law, George Washington University School of Law, Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law Houston, and our moderator, Kevin R. Amer, Deputy General Counsel at the U.S. Copyright Office.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Nov 22 2019

41mins

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County of Maui, Hawaii v. Hawaii Wildlife Fund - Post-Argument SCOTUScast

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On Nov 6, 2019, the U.S. Supreme Court heard County of Maui, Hawai’i v. Hawai’i Wildlife Fund, which involves a dispute over whether the Clean Water Act’s permit requirement applies when pollutants originate from a concrete point but are only conveyed to navigable waters indirectly, via groundwater.
Under the federal Clean Water Act (CWA), someone seeking to discharge a pollutant from a “point source,” such as a pipe or well, into navigable water must first obtain a permit via the National Pollutant Discharge Elimination System program (NPDES). The County of Maui, Hawai’i (the County), owns and operates four wells at a wastewater treatment plant that processes several million gallons of sewage per day. Treated wastewater from the plant is injected into groundwater via these wells, and some ultimately enter the Pacific Ocean via submarine seeps.
Hawai’i Wildlife Fund and various other organizations filed suit against the County, alleging that it was violating the CWA by discharging effluent through groundwater into the ocean without an NDPES permit. The district court agreed with the plaintiffs and the U.S. Court of Appeals for the Ninth Circuit affirmed, rejecting the County’s argument that no violation occurred because the pollutants did not issue directly from the point source (the wells) into navigable water (the ocean), but rather traveled indirectly to the ocean via groundwater. The Ninth Circuit’s reading sharpened a split among the federal circuit courts of appeals on the proper interpretation of the CWA, and the Supreme Court granted certiorari to address whether the CWA requires a permit “when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.”
To discuss the cases, we have Glenn Roper, attorney at the Pacific Legal Foundation.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Nov 13 2019

26mins

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Kansas v. Glover - Post-Argument SCOTUScast

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On Nov. 4, 2019, the U.S. Supreme Court heard argument in Kansas v. Glover, a case involving a dispute over the “reasonable suspicion” necessary to justify a traffic stop when the registered owner of a vehicle has a revoked license but the actual driver of the vehicle has not been identified.
A county sheriff’s deputy pulled over Charles Glover, Jr. after running a registration check on the vehicle Glover was driving and finding that the registered owner had a revoked license. Although Glover was, in fact, the registered owner, the deputy did not attempt to confirm his identity before making the stop; nor did he witness any traffic violations. The deputy had simply assumed the registered owner was the person driving the vehicle. Glover moved to suppress evidence obtained during the traffic stop, arguing that the officer had lacked the requisite “reasonable suspicion” of illegal activity to authorize the stop. The Kansas Supreme Court ultimately agreed with Glover, holding that the officer “lacked an articulable and reasonable suspicion that the unidentified driver did not have a valid driver's license.”
This decision conflicted with those of various other state supreme courts and federal circuit courts of appeals on similar questions, and the U.S. Supreme Court subsequently granted Kansas’s certiorari petition to consider whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.
To discuss the cases, we have Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Nov 13 2019

20mins

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Mathena v. Malvo - Post-Argument SCOTUScast

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On October 16, 2019, the Supreme Court heard oral argument in Mathena v. Malvo, a case which concerns the scope of a new constitutional rule when applied retroactively on collateral review.
In 2004, respondent Lee Boyd Malvo was convicted in Virginia on various counts of capital murder due to his participation in the “DC Sniper” attacks of 2002. As he was 17 years old at the time, he avoided the death penalty and was sentenced to four terms of life imprisonment without parole. In 2012, the Supreme Court held in Miller v. Alabama that sentencing a person younger than 18 to mandatory life imprisonment without parole violates the Eighth Amendment’s prohibition on cruel and unusual punishments. In 2016, the Court then held in Montgomery v. Louisiana that Miller had announced a new substantive rule applicable retroactively in cases on state collateral review.
When Malvo raised these issues on collateral review, the Fourth Circuit held that his sentences of life without parole must be vacated based on Miller, and the cases remanded for resentencing to determine whether his crimes reflected a “permanent incorrigibility” that would justify reimposition of the life-without-parole sentence. This judgment created a conflict with the Supreme Court of Virginia, which had concluded that Montgomery did not extend the applicability of Miller to discretionary sentencing schemes (including life without parole), but only applied Miller retroactively to cases on collateral review involving mandatory sentences of life without parole.
The Supreme Court thereafter granted certiorari to address whether the Fourth Circuit erred in concluding that Montgomery--when addressing whether the new constitutional rule announced in Miller applies retroactively on collateral review--may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.
To discuss the case, we have Kent Scheidegger, Legal Director of the Criminal Justice Legal Foundation.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Nov 02 2019

11mins

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Sexual Orientation Consolidated - Post-Argument SCOTUScast

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On October 8, 2019, the U.S. Supreme Court heard argument in two consolidated cases asking whether discrimination “because of … sex,” which is prohibited by Title VII of the Civil Rights Act of 1964, includes discrimination based on sexual orientation.
In Altitude Express, Inc. v. Zarda, gay skydiving instructor Donald Zarda was fired after a female client with whom he was preparing a tandem jump alleged that he had touched her inappropriately, though he had disclosed his sexual orientation to protest that his intentions were not sexual. His lawsuit alleged that his employer discriminated against him because he was honest about his sexual orientation and did not conform to a “straight male macho stereotype.”
In Bostock v. Clayton County, Georgia, Gerald Bostock, a gay man who worked as a Child Welfare Services Coordinator for the Clayton County Juvenile Court System, was fired after Clayton County learned of his sexual orientation, his participation in a gay recreational softball league, and his promotion of volunteer opportunities with the County to league members. His lawsuit alleged that the County falsely accused him of mismanaging public funds as a pretext for discharging him, with the real reason being his sexual orientation.
The U.S. Courts of Appeals in these cases reached mutually exclusive interpretations of Title VII’s language prohibiting discrimination “because of … sex.” In Zarda, the Second Circuit, sitting en banc, overruled its prior caselaw to conclude that Title VII prohibits discrimination based on sexual orientation. In Bostock, however, the Eleventh Circuit followed its longstanding precedent that Title VII does not support an action for sexual orientation discrimination. The U.S. Supreme Court subsequently granted certiorari in both cases to clarify whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII.
To discuss the cases, we have John J. Bursch, Owner, Bursch Law PLLC.
*Please note that Mr. Bursch argued a related Title VII case before the Supreme Court this term, Harris Funeral Homes v. EEOC.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Nov 01 2019

25mins

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Kahler v. Kansas & Ramos v. Louisiana Post-Argument SCOTUScast

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On October 7, 2019, the Supreme Court heard oral arguments in Kahler v. Kansas and Ramos v. Louisiana, both of which raise questions of constitutional criminal law.
In Kahler, a jury convicted James Kahler of capital murder. Among other things, he objected at trial to a Kansas statute limiting any “mental disease or defect” defense to formation of the requisite mental state for the charged offense. The statute, Kahler argued, denied him due process by depriving him of the ability to present an insanity defense. The Supreme Court of Kansas, following its precedent, noted that state law had deliberately “abandon[ed] lack of ability to know right from wrong as a defense,” and rejected Kahler’s argument. The U.S. Supreme Court subsequently granted certiorari to consider whether the Eighth and Fourteenth Amendments to the U.S. Constitution permit a state to abolish the insanity defense.
In Ramos, Evangelisto Ramos was convicted of second-degree murder by the vote of 10 of 12 jurors. Challenging his conviction, Ramos argued that Louisiana’s statutory scheme permitting non-unanimous jury verdicts in non-capital felony cases violated his right to equal protection under the Fourteenth Amendment to the U.S. Constitution. Relying on its precedent, the Louisiana Supreme Court rejected Ramos’ argument. The U.S. Supreme Court subsequently granted certiorari to consider whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous jury verdict (in criminal cases) against the states.
To discuss the cases, we have GianCarlo Canaparo, Legal Fellow at the Heritage Foundation.

Oct 25 2019

24mins

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Peter v. NantKwest Inc. - Post Argument SCOTUScast

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On October 7, 2019, the Supreme Court heard oral argument in Peter v. NantKwest Inc., a case which considers whether a party opting to bring a challenge in federal district court to an adverse decision of the U.S. Patent and Trademark Office’s (PTO) Patent Trial and Appeal Board (PTAB) must pay the PTO’s resulting attorney’s fees.
When a patent application is rejected by the PTO, and the PTAB affirms that decision on appeal, the aggrieved applicant may either pursue further (but relatively constrained) review in the U.S. Court of Appeals for the Federal Circuit--or the applicant may file a more expansive challenge in federal district court. The latter option is authorized by 35 U.S.C. § 145, but the statute also provides that “[a]ll the expenses of the proceedings shall be paid by the applicant.”
Here, NantKwest challenged an adverse PTAB decision in federal district court, but lost. After the judgment was affirmed by the Federal Circuit, the PTO sought reimbursement of its expenses from NantKwest, including nearly $80,000 in attorneys’ fees. The district court denied recovery based on the “American Rule” that parties in federal court typically bear their own fees unless otherwise directed by Congress. A divided en banc panel of the Federal Circuit ultimately affirmed the district court. This decision, however, was in tension with the U.S. Court of Appeals for the Fourth Circuit’s construction of similar language in the Lanham Act.
Thereafter, the Supreme Court granted certiorari to consider whether the phrase “[a]ll the expenses of the proceedings” in 35 U.S.C. § 145 encompasses the personnel expenses the PTO incurs when its employees, including attorneys, defend the agency in Section 145 litigation.
To discuss the case, we have Robert J. Rando, Founder and Lead Counsel, The Rando Law Firm P.C.*
*Please note that Mr. Rando is co-Counsel on an Amicus brief filed on behalf of the Association of Amicus Counsel in this case.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Oct 22 2019

21mins

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Nieves v. Bartlett - Post-Decision SCOTUScast

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On May 28, 2019, the Supreme Court decided Nieves v. Bartlett, a case that considers the conditions a plaintiff must meet to prevail on a claim of retaliatory arrest by law enforcement.
State troopers Luis Nieves and Bryce Weight arrested Russell Bartlett during the 2014 “Arctic Man” winter sports festival held in Alaska’s Hoodoo Mountains. According to the officers, an apparently intoxicated Bartlett started yelling at Sergeant Nieves when the latter asked partygoers to move a beer keg to make it less accessible to minors. Several minutes later, when Trooper Weight asked a minor whether the minor and underage friends had been drinking, Bartlett approached, inserted himself between Weight and the minor, and yelled that Weight should not speak with the minor. Weight contends Bartlett then approached him combatively and Weight pushed him back. Sergeant Nieves, seeing the altercation, hurried over and arrested Bartlett. When Bartlett was slow to comply, the officers forced him to the ground. Bartlett denies being aggressive, and contends that after he was handcuffed Nieves said: “[B]et you wish you would have talked to me now.”
Although Bartlett was charged with disorderly conduct and resisting arrest, the State ultimately dismissed the criminal charges against him. Bartlett then sued the officers in federal district court under 42 U.S.C. §1983, alleging that they had arrested him in retaliation for his speech, thereby violating his First Amendment rights. The court granted judgment in favor of the officers, concluding that they had probable cause to arrest Bartlett and that the existence of probable cause necessarily defeated Bartlett’s retaliation claim. The U.S. Court of Appeals for the Ninth Circuit reversed, however, arguing that even in the face of probable cause a claim of retaliatory arrest can prevail where the officers’ conduct would chill a person of ordinary firmness from First Amendment activity, and where the desire to chill speech was a “but for” cause of the arrest. The U.S. Supreme Court then granted certiorari to clarify the applicable legal standard.
By a vote of 6-3, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In an opinion delivered by Chief Justice Roberts, the court held that the existence of probable cause defeats a claim of retaliatory arrest as a matter of law--unless the plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. The Chief Justice’s majority opinion was joined by Justices Breyer, Alito, Kagan, and Kavanaugh in full, and by Justice Thomas except as to Part II-D. Justice Thomas also filed an opinion concurring in part and concurring in the judgment. Justice Gorsuch filed an opinion concurring in part and dissenting in part. Justice Ginsburg filed an opinion concurring in the judgment in part and dissenting in part. Justice Sotomayor also dissented.

Oct 11 2019

14mins

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Nielsen v. Preap - Post Decision SCOTUScast

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On March 19, 2019, the Supreme Court decided Nielsen v. Preap (and its companion case Wilcox v. Khoury), both of which consider the extent to which the mandatory detention provision of the Immigration and Naturalization Act applies to defendants who were not arrested by immigration officials immediately upon their release from criminal custody.
Aliens who are arrested in order to be removed from the United States typically can seek release or parole on bond while any dispute about their removability is being resolved. Title 8 U.S.C. § 1226(c)(1), however, creates an exception: aliens who have committed certain crimes or have a connection to terrorism must be arrested when released from custody relating to their criminal charges, and almost always held without bond until the question of removal is settled.
The U.S. Court of Appeals for the Ninth Circuit interpreted this mandatory detention provision to apply only when the alien is arrested immediately after release from prison. If a short period of time intervenes, the court concluded, the alien must be allowed the chance to apply for release on bond or parole.
By a vote of 5-4, the Supreme Court reversed the Ninth Circuit’s judgment and remanded the case. Respondent aliens who fall within the scope of § 1226(c)(1), the Court held, can be detained even if federal officials did not arrest them immediately upon release.
Justice Alito announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-A, III-B-1, and IV, and an opinion with respect to Parts II and III-B-2, in which Chief Justice Roberts and Justice Kavanaugh joined. Justice Kavanaugh filed a concurring opinion. Justice Thomas filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined.
To discuss the case, we have Greg Brower, Shareholder, Brownstein, Hyatt, Farber, Shreck.

Sep 19 2019

15mins

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Frank v. Gaos - Post-Decision Podcast

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On March 20, 2019, the Supreme Court decided Frank v. Gaos, a case raising the question whether, or under what circumstances, a cy pres award that provides no direct relief to class members fulfills the Federal Rules of Civil Procedure 23(e) requirement that a class action settlement be "fair, reasonable, and adequate."
In a class-action suit with three named plaintiffs, Google was accused of violating the Stored Communications Act by sharing user search terms and other information with the server hosting whatever webpage that user clicked to via Google Search results. A settlement was reached that would require Google to include certain disclosures on some of its webpages and would distribute more than $5 million to cy pres recipients, more than $2 million to class counsel, and no money to absent class members. The district court approved the settlement over the objections of several class members, and the U.S. Court of Appeals for the Ninth Circuit affirmed. The Supreme Court then granted certiorari to address petitioners’ challenge that this cy pres settlement did not satisfy the Rule 23(e) requirement that class action settlements be “fair, reasonable, and adequate,” but did not ultimately reach the merits of that question.
In a per curiam opinion, the Court vacated the judgment of the Ninth Circuit and remanded the case for further proceedings to determine whether the class action plaintiffs even had standing to bring their class action in light of the Supreme Court’s 2016 decision in Spokeo v. Robins. That case held that “Article III standing requires a concrete injury even in the context of a statutory violation.” Here, the Court indicated, the lower courts needed to resolve “whether any named plaintiff has alleged [Stored Communications Act] violations that are sufficiently concrete and particularized to support standing.” If not, the lack of standing would deprive the federal courts of subject matter jurisdiction in this case. Justice Thomas dissented.
To discuss the case, we have Theodore "Ted" Frank, Director of Litigation and Senior Attorney, Hamilton Lincoln Law Institute - and one of the named petitioners in this case.

Sep 19 2019

16mins

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Air & Liquid Systems Corp. v. Devries - Post-Decision SCOTUScast

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On March 19, 2019, the Supreme Court decided Air & Liquid Systems Corp. v. Devries, a case addressing the liability of a manufacturer under maritime law for injuries caused when asbestos was incorporated into their product by a third party after sale.
The Air & Liquid Systems Corporation (ALS) produced equipment for United States Navy ships. Parts of the equipment required asbestos insulation and asbestos parts in order to function but the manufacturers delivered the equipment without asbestos and the Navy added it later. Two Navy veterans, Kenneth McAfee and John DeVries developed cancer and died after being exposed to asbestos while stationed on the ships. Their families sued manufacturer ALS in federal district court, alleging that it had negligently failed to warn about the dangers of asbestos in the integrated products. ALS countered that it should not be held liable for asbestos that was added later by a third party, an argument known as the “bare metal” defense. The district court ruled in favor of ALS but the U.S. Court of Appeals for the Third Circuit vacated that judgment and remanded the case, concluding that a “bare metal” manufacturer could still be held liable if it was foreseeable that the materials in question would have been used with later-added asbestos-containing materials. The Supreme Court then granted certiorari to resolve a split among the circuit courts of appeals on whether the “bare metal” defense is valid under maritime law.
By a vote of 6-3, the Supreme Court affirmed the judgment of the Third Circuit. Justice Kavanaugh delivered the opinion of the Court, holding that, in the maritime tort context, a product manufacturer has a duty to warn when its product requires incorporation of a part, the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger. The majority opinion was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Gorsuch filed a dissenting opinion, in which Justices Thomas and Alito joined.
To discuss the case, we have Karen R. Harned, Executive Director, NFIB Small Business Legal Center.

Sep 14 2019

16mins

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Sturgeon v. Frost - Post-Decision SCOTUScast

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On March 26, 2019, the Supreme Court decided Sturgeon v. Frost, a case considering whether the Alaska National Interest Lands Conservation Act (ANILCA) prohibits the National Park Service from exercising regulatory control over state, native corporation, and private land physically located within the boundaries of the National Park System in Alaska.
Congress, through ANILCA, created ten new national parks, monuments, and preserves with 104 million acres of federally owned land. When selecting the boundary lines, Congress chose to use the natural features of the land rather than strictly the federally owned land. The state, private, and Native lands within the boundary lines became in-holdings totaling 18 million acres. To protect the landowners, Congress included Section 103(c) which, in part, states that only federally owned lands within a conservation reserve unit were to be considered a part of the unit and that no state or private land is subject to regulations pertaining to federal land within the unit.
Petitioner John Sturgeon, a hunter, had been using a hovercraft to navigate up a portion of the Nation River that runs through the Yukon-Charley Preserve, a conservation unit in Alaska. The National Park Service (NPS) informed Sturgeon of a regulation prohibiting the operation of a hovercraft on navigable waters within the boundaries of any national park regardless of in-holdings.
Sturgeon sought an injunction against the National Park Service arguing that the land he was using was owned by the state of Alaska and NPS had no authority to enforce its hovercraft ban there. After an initial round of litigation resulting in remand by the Supreme Court for further consideration, the District Court again ruled against Sturgeon, interpreting Section 103(c) to limit NPS’ authority to impose Alaska-specific regulations on property inholdings--but not its authority to enforce nationwide regulations such as the hovercraft rule. The U.S. Court of Appeals for the Ninth Circuit affirmed, but the Supreme Court again granted certiorari and rejected that interpretation as implausible, directing the Ninth Circuit on remand to consider whether the Nation River qualifies as “public land” (thereby subjecting it to NPS authority)--and if not, whether some other theory afforded NPS regulatory power over the river in question. The Ninth Circuit found that the Nation River did qualify as public land, ruling against Sturgeon yet again. For the third time, the Supreme Court granted certiorari to review that court’s judgment.
By a vote of 9-0, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In an opinion delivered by Justice Kagan, the Court unanimously held that Nation River is not public land for purposes of ANILCA--and like all non-public lands and navigable waters within Alaska’s national parks, is exempt under Section 103(c) from NPS’ ordinary regulatory authority.
Justice Sotomayor filed a concurring opinion, in which Justice Ginsburg joined.
To discuss the case, we have Tony Francois, Senior Attorney, Pacific Legal Foundation.

Sep 11 2019

16mins

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Bucklew v. Precythe - Post-Decision SCOTUScast

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On April 1, 2019, the Supreme Court decided Bucklew v. Precythe, a case considering the standard applicable when an offender sentenced to death raises an Eighth Amendment challenge to the state’s lethal injection procedure.
Petitioner Russell Bucklew was convicted of murder and sentenced to death by lethal injection of a single drug, pentobarbital, by the State of Missouri. Bucklew challenged the State’s injection protocol under the Eighth Amendment, alleging that regardless of whether it would cause excruciating pain for all prisoners, it would cause him severe pain because of a particular medical condition he had.
The District Court dismissed his challenge. The U.S. Court of Appeals Eighth Circuit, applying Supreme Court precedent in Baze v. Rees and Glossip v. Gross, remanded the case to allow Bucklew to identify a feasible, readily implemented alternative procedure that would significantly reduce his alleged risk of pain. Bucklew eventually suggested nitrogen hypoxia, but the District Court rejected his argument for lack of evidence. A divided Eighth Circuit panel affirmed, and the Supreme Court granted certiorari.
By a vote of 5-4, the Supreme Court affirmed the judgment of the Eighth Circuit. In an opinion delivered by Justice Gorsuch, the court held that Baze and Glossip govern all Eighth Amendment challenges alleging that a method of execution inflicts unconstitutionally cruel pain, and Bucklew’s as-applied challenge fails the Baze-Glossip test. He failed to raise a triable issue of fact regarding the viability of nitrogen hypoxia as an alternative method, and even if he had there was no showing that it would significantly reduce a substantial risk of severe pain.
Justice Gorsuch’s majority opinion was joined by the Chief Justice and Justices Thomas, Alito, and Kavanaugh. Justice Thomas and Justice Kavanaugh filed concurring opinions. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined as to all but Part III. Justice Sotomayor also filed a dissenting opinion.
To discuss the case, we have Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation.

Aug 23 2019

10mins

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Gamble v. United States - Post-Decision SCOTUScast

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On June 17, 2019, the Supreme Court decided Gamble v. United States, a case challenging the validity of the "separate sovereigns" exception to the Double Jeopardy Clause of the U.S. Constitution’s Fifth Amendment.
In 2015 Terance Gamble, who had previously been convicted of second-degree robbery in Alabama state court, pleaded guilty in state court to possessing a firearm in violation of Alabama’s law against firearm possession by anyone convicted of a “crime of violence.” Federal prosecutors thereafter relied on the same facts to charge Gamble with violating the federal statute that forbids convicted felons to possess a firearm. Gamble moved to dismiss the federal charge, arguing that the Double Jeopardy Clause precluded a second conviction for essentially the same offense. The district court and the U.S. Court of Appeals for the Eleventh Circuit rejected Gamble’s argument due to the “dual sovereignty” or “separate sovereigns” doctrine, which holds that two offenses are not the same for Double Jeopardy purposes when pursued by separate (here, state and federal) sovereigns. The Supreme Court granted certiorari to determine whether the separate sovereigns doctrine should be overturned.
By a vote of 7-2, the Supreme Court affirmed the judgment of the Eleventh Circuit. Justice Alito delivered the opinion of the Court, declining to overturn the dual sovereignty doctrine. His majority opinion was joined by Chief Justice Roberts and Justices Thomas, Breyer, Sotomayor, Kagan, and Kavanaugh joined. Justice Thomas filed a concurring opinion. Dissenting opinions were filed by Justice Gorsuch and Justice Ginsburg.
To discuss the case, we have Clark Neily, Vice President for Criminal Justice at the Cato Institute.

Aug 16 2019

9mins

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Dutra Group v. Batterton - Post-Decision

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On June 24, 2019, the Supreme Court decided Dutra Group v. Batterton, a case addressing whether a plaintiff may recover punitive damages on a claim of unseaworthiness.
Christopher Batterton was injured while working on a vessel owned and operated by the Dutra Group. Batterton claimed the vessel was unseaworthy due to a missing safety feature and sued Dutra in federal district court for, among other things, punitive damages. Dutra argued that punitive damages are not available on claims for unseaworthiness, but the district court and the U.S. Court of Appeals for the Ninth Circuit rejected Dutra’s argument. Because that ruling underscored a division among the circuit courts of appeals on the issue, the Supreme Court granted certiorari to resolve the split.
By a vote of 6-3, the Supreme Court reversed the Ninth Circuit’s judgment and remanded the case. Justice Alito delivered the opinion of the Court, holding that a plaintiff may not recover punitive damages on a claim of unseaworthiness. Justice Alito’s majority opinion was joined by Chief Justice Roberts and Justices Thomas, Kagan, Gorsuch, and Kavanaugh. Justice Ginsburg dissented, joined by Justices Breyer and Sotomayor.
To discuss the case, we have Don Haycraft, Counsel at Liskow & Lewis.

Aug 16 2019

13mins

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Tennessee Wine and Spirits Retailers Association v. Thomas - Post-Decision Podcast

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On June 26, 2019, the Supreme Court decided Tennessee Wine & Spirits Retailers Association v. Thomas, a case considering whether Tennessee’s two-year durational residency requirement for obtaining a retail liquor license is constitutional.
In 2016, companies Total Wine and Affluere Investments, Inc. applied for licenses to own and operate liquor stores in Tennessee. Although state law imposed a two-year durational residency requirement that the entities did not meet, the Tennessee Alcoholic Beverage Commission (TABC) had obtained an opinion from the state attorney general that the requirement operated as a discriminatory trade restraint in violation of the U.S. Constitution’s Commerce Clause. TABC, therefore, recommended approval of the licenses, but trade association Tennessee Wine and Spirits Retailers Association (Association)--composed of in-state liquor retailers--threatened to sue TABC if the licenses were granted. TABC, therefore, sought declaratory relief on the validity of the durational residency requirement, and the case was removed to federal district court.
The district court held the requirement unconstitutional, the state declined to appeal, and the licenses issued. The Association, however, pursued its objections before the U.S. Court of Appeals for the Sixth Circuit, which ultimately affirmed the district court--though a dissenting judge argued that the Constitution’s Twenty-first Amendment granted states broad authority to regulate the in-state distribution of alcohol, and would have upheld the residency requirement. The Supreme Court subsequently granted certiorari to reconcile its Twenty-first Amendment and dormant Commerce Clause precedents.
By a vote of 7-2, the Supreme Court affirmed the judgment of the Sixth Circuit. Justice Alito delivered the opinion of the Court, holding that Tennessee’s two-year durational-residency requirement applicable to retail liquor store license applicants violates the Commerce Clause and is not saved by the Twenty-first Amendment. Justice Alito’s majority opinion was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh. Justice Gorsuch dissented, joined by Justice Thomas.
To discuss the case, we have Michael Bindas, Senior Attorney at the Institute for Justice.

Aug 15 2019

25mins

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Iancu v. Brunetti Post-Decision Podcast

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On June 24, 2019, the Supreme Court decided Iancu v. Brunetti, a case considering whether a provision of the Lanham Act prohibiting the registration of “immoral or scandalous” trademarks infringes the First Amendment.
Business owner Erik Brunetti applied to register his clothing brand’s trademark, “FUCT,” (pronounced as the individual letters F-U-C-T) but was refused by the U.S. Patent and Trademark Office (PTO) because the Lanham Act prohibits registration of marks that consist of or comprise “immoral or scandalous” matter. The PTO Trademark Trial and Appeal Board deemed the mark vulgar and indicated that it carried “negative sexual connotations,” and in association with Brunetti’s website imagery and products conveyed misogyny, depravity, and violence. Brunetti then appealed to the U.S. Court of Appeals for the Federal Circuit, which held that the Lanham Act’s prohibition violated the First Amendment. The Supreme Court then granted certiorari to address the lower court’s invalidation of the federal statute.
By a vote of 6-3, the Supreme Court upheld the judgment of the Federal Circuit. In an opinion delivered by Justice Kagan, the Court held that the Lanham Act prohibition on the registration of “immoral” or “scandalous” trademarks constitutes viewpoint discrimination that infringes the First Amendment.
Justice Kagan’s majority opinion was joined by which Justices Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh. Justice Alito filed a concurring opinion. Justice Breyer and Chief Justice Roberts filed opinions concurring in part and dissenting in part. Justice Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined.
To discuss the case, we have Thomas Berry, Attorney at the Pacific Legal Foundation.

Jul 30 2019

20mins

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The American Legion v. American Humanist Association - Post-Decision Podcast

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On June 20, 2019, the Supreme Court decided The American Legion v. American Humanist Association, a case considering whether state funding of a war memorial in the form of a religious symbol is in violation of the Establishment Clause of the First Amendment.
In 1925, the American Legion erected a memorial cross (Peace Cross) in Bladensburg, MD, to honor 49 soldiers who died fighting in World War I. In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the land and has maintained the memorial using public funding. In 2014, the American Humanist Association (AHA) and other civil associations filed suit in District Court, alleging that the presence and publicly-funded maintenance of the Peace Cross violated the Establishment Clause of the First Amendment. AHA sought relocation, demolition, or removal of the cross’s arms. The district court ruled in favor of the American Legion, applying the Supreme Court precedents Lemon v. Kurtzman (1971) and Van Orden v. Perry (2005), concluding that the Peace Cross did not violate the Establishment Clause.
A divided panel of the U.S. Court of Appeals for the Fourth Circuit reversed that judgment, applying the same precedents as the district court--but concluding that the Peace Cross conveyed to a reasonable observer the impression of state endorsement of Christianity, and excessively entangled the Commission with religion. The Supreme Court granted certiorari to address the Establishment Clause issue.
By a vote of 7-2, the Supreme Court reversed the judgment of the Fourth Circuit and remanded the case. In an opinion delivered by Justice Alito, the Court held that “[t]he Bladensburg Cross does not violate the Establishment Clause.” Justice Alito delivered the opinion of the Court with respect to Parts I, II–B, II–C, III, and IV, joined by Chief Justice Roberts and Justices Breyer, Kagan, and Kavanaugh. Justice Alito’s opinion with respect to Parts II–A and II–D was also joined by Chief Justice Roberts and Justices Breyer and Kavanaugh, but not Justice Kagan. A concurring opinion was filed by Justice Breyer in which Justice Kagan joined. Justice Kavanaugh filed a concurring opinion and Justice Kagan filed an opinion concurring in part. Justice Thomas filed an opinion concurring in the judgment. Justice Gorsuch filed an opinion concurring in the judgment, in which Justice Thomas joined. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined.
To discuss the case, we have Christopher DiPompeo, Partner at Jones Day.

Jul 23 2019

17mins

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Franchise Tax Board of California v. Hyatt - Post-Decision SCOTUScast

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On May 13, 2019, the Supreme Court decided Franchise Tax Board of California v. Hyatt, a case considering whether states maintain sovereign immunity from private suits in the courts of other states.
In the 1990s, Gilbert Hyatt moved from California to Nevada. Following an investigation and audit, however, the Franchise Tax Board of California (FTB) claimed that he had misstated the date of his move and therefore owed California millions in unpaid taxes, penalties and interest. Hyatt then brought a tort suit against FTB, which is a California state agency, in Nevada state court--and won a jury verdict of nearly $500 million. Although the Nevada Supreme Court set aside much of the award on appeal, it nevertheless affirmed an award of $1 million for fraud--even though a Nevada statute would have capped such damages in a similar suit against Nevada officials at $50,000. Nevada’s interest in providing adequate redress to its own citizens, the court concluded, superseded the application of any statutory cap for California’s benefit.
In 2016, the U.S. Supreme Court reversed that judgment, concluding that the Constitution’s Full Faith and Credit Clause required Nevada courts to grant the FTB the same level of immunity that Nevada agencies enjoy. The Court divided equally, however, on whether to overrule its 1979 precedent Nevada v. Hall, which holds that the Constitution does not bar private suits against a State in the courts of another State. By statute, the Court was therefore required to affirm the jurisdiction of the Nevada Supreme Court. On remand, that court instructed the trial court to enter damages against FTB in accord with the statutory cap for Nevada agencies. Thereafter the U.S. Supreme Court again granted certiorari to reconsider Nevada v. Hall.
By a vote of 5-4, the Supreme Court reversed the judgment of the Nevada Supreme Court and remanded the case. In an opinion delivered by Justice Thomas, the Court overruled Nevada v. Hall, holding that states retain their sovereign immunity from private suits brought in courts of other states. Justice Thomas’s majority opinion was joined by the Chief Justice and Justices Alito, Gorsuch, and Kavanaugh. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined.
To discuss the case, we have Stephen Sachs, Professor of Law at Duke University.

Jul 19 2019

17mins

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Stokeling v. United States - Post-Decision Podcast

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On January 15, 2019, the Supreme Court decided Stokeling v. United States, a case considering whether Florida’s robbery law, which requires victim resistance that is then overcome by the physical force of the offender, qualifies as a “violent felony” under the Armed Career Criminal Act (ACCA).
ACCA imposes a 15-year mandatory minimum prison sentence on any federal firearms offender who has three or more convictions for a “violent” felony or serious drug offense. In determining whether any given predicate felony conviction qualifies as “violent,” federal courts typically apply a “categorical” approach that looks only to the elements of the predicate offense and not the underlying facts. If the elements include “the use, attempted use, or threatened use of physical force against the person or property of another,” the conviction qualifies as a violent felony. The issue here was whether Stokeling’s Florida conviction for robbery categorically qualified as a violent felony for ACCA purposes. The U.S. Court of Appeals for the Eleventh Circuit held that it did.
By a vote of 5-4, the Supreme Court affirmed the judgment of the Eleventh Circuit. In an opinion delivered by Justice Thomas, the Supreme Court held that ACCA’s elements clause encompasses a robbery offense that, like Florida’s law, requires the criminal physically to overcome the victim’s resistance. Justice Thomas’s majority opinion was joined by Justices Breyer, Alito, Gorsuch, and Kavanaugh. Justice Sotomayor filed a dissenting opinion, in which the Chief Justice and Justices Ginsburg and Kagan joined.
To discuss the case, we have Luke Milligan, Professor of Law at the University of Louisville Brandeis School of Law.

Jul 16 2019

13mins

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