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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

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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

60 Ratings
Average Ratings
44
8
2
1
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

60 Ratings
Average Ratings
44
8
2
1
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.
Cover image of SCOTUScast

SCOTUScast

Latest release on Jul 27, 2020

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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

Rank #1: United States v. Texas - Post-Argument SCOTUScast

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On April 18, 2016, the Supreme Court heard oral arguments in United States v. Texas. This case relates back to the Department of Homeland Security’s (DHS) 2012 Deferred Action for Childhood Arrivals (DACA) program, which set forth special criteria to direct how DHS should exercise prosecutorial discretion in enforcing federal immigration laws against certain young persons. In 2014 DHS issued a memo that then expanded eligibility under DACA and directed establishment of a similar program for the parents of DACA-eligible persons: Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). -- Twenty-six states sued in federal district court to prevent the DHS from implementing DAPA, arguing that DAPA violated the Administrative Procedure Act (APA) because it had not gone through a notice-and-comment process, and was moreover arbitrary and capricious. The states also argued that DAPA abrogated the President’s constitutional duty to “take Care that the Laws be faithfully executed.” The district court concluded that of the suing states, Texas had standing, and temporarily enjoined implementation of DAPA after determining that Texas had shown a substantial likelihood of success on its notice-and-comment claim. The U.S. Court of Appeals for the Fifth Circuit affirmed that ruling, and further held that the other states had standing and has shown a substantial likelihood of success on both the notice-and-comment and arbitrary and capricious components of their APA claims. The Fifth Circuit did not reach the Take Care clause claim. -- The four questions before the Supreme Court in this case are: (1) whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the APA to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3--a question the Court itself directed the parties to brief. -- To discuss the case, we have Josh Blackman, who is Assistant Professor of Law at South Texas College of Law.

May 12 2016

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Rank #2: Mathis v. United States - Post-Decision SCOTUScast

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On June 23, 2016, the Supreme Court decided Mathis v. United States. The Armed Career Criminal Act (ACCA) imposes a 15-year mandatory minimum sentence on a defendant convicted of being a felon in possession of a firearm who also has three prior state or federal convictions “for a violent felony,” including “burglary, arson, or extortion.” To determine whether a prior conviction is for one of those listed crimes, courts apply a “categorical approach”—they ask whether the elements of the offense forming the basis for the conviction sufficiently match the elements of the generic (or commonly understood) version of the enumerated crime. -- Here, petitioner Richard Mathis pleaded guilty to being a felon in possession of a firearm. Because he had five prior Iowa burglary convictions, the Government argued for the 15-year minimum. Generic burglary requires unlawful entry into a “building or other structure.” The Iowa statute under which Mathis was convicted, however, also extended to “any... land, water, or air vehicle.” The District Court determined based on the case record that Mathis had burgled structures and imposed the 15-year ACCA minimum. The U.S Court of Appeals for the Eighth Circuit affirmed. -- By a vote of 5-3, the Supreme Court reversed the judgment of the Eighth Circuit. Justice Kagan delivered the opinion of the Court, which held that because the elements of Iowa’s burglary law – which applies to “any building, structure, [or] land, water, or air vehicle” – were broader than those of generic burglary, Mathis’ prior convictions under the Iowa burglary law could not give rise to an ACCA sentence. Justice Kagan’s majority opinion was joined by the Chief Justice and Justices Kennedy, Thomas, and Sotomayor. Justice Kennedy also filed a concurring opinion. Justice Thomas filed a concurring opinion. Justice Breyer filed a dissenting opinion, in which Justice Ginsburg joined. Justice Alito also filed a dissenting opinion. -- To discuss the case, we have Richard E. Myers II, who is Henry Brandis Distinguished Professor of Law at University of North Carolina School of Law.

Aug 18 2016

10mins

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Rank #3: RJR Nabisco, Inc. v. The European Community - Post-Argument SCOTUScast

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On March 21, 2016, the Supreme Court heard oral argument in RJR Nabisco, Inc. v. The European Community. The European Community and 26 of its member states sued RJR Nabisco (RJR) in the U.S. District Court for the Eastern District of New York, alleging that RJR conducted a global money-laundering enterprise in violation of several laws, including the Racketeer Influenced and Corrupt Organizations Act (RICO), a federal statute. The alleged RICO enterprise involved the importation of illegal drugs into European countries by Colombian and Russian criminal organizations, with RJR helping to launder their drug money through a cigarette import-purchase scheme. Applying a presumption against extraterritorial application of federal law, the district court dismissed The European Community’s civil RICO claim. The U.S. Court of Appeals for the Second Circuit vacated that judgment and reinstated the RICO claim, however, concluding that various alleged predicates for RICO liability had been intended by Congress to apply extraterritorially and that other offenses asserted sufficiently important domestic activity to come within RICO’s coverage. -- The U.S. Supreme Court granted RJR’s subsequent petition for writ of certiorari on the following question: whether, or to what extent, RICO applies extraterritorially. -- To discuss the case, we have Richard A. Samp, who is Chief Counsel at Washington Legal Foundation.

Apr 20 2016

22mins

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Rank #4: 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

21mins

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Rank #5: 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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Rank #6: 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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Rank #7: 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

19mins

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Rank #8: Opati v. Republic of Sudan - Post-Argument SCOTUScast

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On Feb. 24, 2020, the U.S. Supreme Court heard argument in Opati v. Republic of Sudan, a case involving a dispute over whether the Foreign Sovereign Immunities Act authorizes punitive damages for terrorist activities that took place before Congress amended the statute to provide an express cause of action contemplating such damages.
Following the 1998 al Qaeda bombing of American embassies in Kenya and Tanzania, victims and their families brought suit against the Republic of Sudan, alleging that it had assisted al Qaeda in carrying out the attacks. In doing so, plaintiffs invoked a terrorism exception to the Foreign Sovereign Immunities Act (FSIA)--but there was uncertainty as to whether, even in the absence of an immunity bar, Congress had provided a federal cause of action for claimants such as plaintiffs. In 2008, however, Congress amended FSIA to provide an express cause of action and directed that claims such as plaintiffs’ be treated “as if ” they had been originally filed under the new cause of action. Congress also made punitive damages available under the new cause of action and authorized the filing of new claims that arose out of the same incident as earlier claims. Plaintiffs amended their complaint accordingly and, following a bench trial, obtained a multi-billion dollar damages award, including more than $4 billion in punitive damages.
Sudan challenged the punitive damages award on appeal, arguing that Congress had not expressly authorized punitive damages based on conduct that predated its 2008 legislation. The U.S. Court of Appeals for the Second Circuit agreed, but the Supreme Court subsequently granted certiorari to consider whether, consistent with its decision in Republic of Austria v. Altmann, 541 U.S. 677 (2004), FSIA applies retroactively, thereby permitting recovery of punitive damages under 28 U.S.C. § 1605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute.
To discuss the case, we have Roger Alford, Professor of Law at the University of Notre Dame
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

May 19 2020

12mins

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Rank #9: 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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Rank #10: 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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Rank #11: 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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Rank #12: 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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Rank #13: 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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Rank #14: Ziglar v. Abbasi - Post-Decision SCOTUScast

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On June 19, 2017, the Supreme Court decided Ziglar v. Abbasi, which was consolidated with the cases Ashcroft v. Abbasi , and Hasty v. Abbasi. Ziglar v. Abbasi was part of a series of lawsuits brought by Muslim, South Asian, and Arab noncitizens who were detained after the terrorist attacks on September 11, 2001, and treated as “of interest” in the ensuing government investigation. These plaintiffs contended, among other things, that the conditions of their confinement violated their constitutional rights to due process and equal protection. The defendants included high-level officials in the Department of Justice (DOJ) such as Attorney General John Ashcroft, FBI director Robert Mueller, and Immigration and Naturalization Service Commissioner James Ziglar, as well as various detention officials. Some of the parties reached settlements, and the district court eventually dismissed some of the allegations against the DOJ officials for failure to state a claim. The U.S. Court of Appeals for the Second Circuit affirmed the lower court’s dismissal of plaintiffs’ Free Exercise claims, but otherwise reversed most of the district court’s judgment. Plaintiffs, the Second Circuit held, had adequately pleaded claims for violations of substantive due process, equal protection, the Fourth Amendment, and civil conspiracy, and Defendants were not entitled to qualified immunity. Defendants then sought, and the Supreme Court granted, a petition for writ of certiorari. -- By a vote of 4-2, the Supreme Court reversed in part, and vacated and remanded in part, the judgment of the Second Circuit. In an opinion by Justice Kennedy, the Court held that (1) the limited reach of actions brought under Bivens v. Six Unknown Federal Narcotics Agents informs the decision whether an implied damages remedy should be recognized in this case; (2) considering the relevant special factors in this case, a Bivens-type remedy should not be extended to the "detention policy claims" -- the allegations that the executive officials and wardens violated the detainees' due process and equal protection rights by holding them in restrictive conditions of confinement, and the allegation that the wardens violated the Fourth and Fifth Amendments by subjecting the detainees to frequent strip searches -- challenging the confinement conditions imposed on the detainees pursuant to the formal policy adopted by the executive officials in the wake of the September 11 attacks; (3) the U.S. Court of Appeals for the 2nd Circuit erred in allowing the prisoner-abuse claim against Warden Dennis Hasty to go forward without conducting the required special-factors analysis; and (4) the executive officials and wardens are entitled to qualified immunity with respect to respondents' civil conspiracy claims. -- Justice Kennedy delivered the opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which the Chief Justice and Justices Thomas and Alito joined. Justice Kennedy also delivered an opinion with respect to Part IV–B, in which the Chief Justice and Justice Alito joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Breyer filed a dissenting opinion, in which Justice Ginsburg joined. Justices Sotomayor, Kagan, and Gorsuch took no part in the consideration or decision of these cases. -- To discuss the case, we have David B. Rivkin, who is a Partner at Baker & Hostetler LLP.

Jul 25 2017

10mins

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Rank #15: Hurst v. Florida - Post-Argument SCOTUScast

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On October 13, 2015, the Supreme Court heard oral argument in Hurst v. Florida. Timothy Lee Hurst was convicted of murdering his co-worker and sentenced to death after a jury recommended that penalty by a vote of 7-5. The question before the Court here is whether Florida’s death sentencing scheme--which Hurst contends does not require unanimity in the jury death recommendation or in the finding of underlying aggravating factors--violates the Sixth or Eighth Amendments in light of the Court’s 2002 decision Ring v. Arizona, which holds that the aggravating factors necessary for imposition of a death sentence be found by a jury. -- To discuss the case, we have Jack Park, who is Of Counsel with Strickland Brockington Lewis LLP.

Nov 07 2015

11mins

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Rank #16: Federal Energy Regulatory Commission v. Electric Power Supply Association and EnerNOC v. Electric Power Supply Association - Post-Argument S

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On October 14, 2015, the Supreme Court heard oral argument in Federal Energy Regulatory Commission v. Electric Power Supply Association and EnerNOC v. Electric Power Supply Association. -- These consolidated cases involve the efforts of the Federal Energy Regulatory Commission (FERC) to specify the methodology that operators in the wholesale electricity market use when compensating users for a commitment to reduce their consumption at particular times, a phenomenon known as “demand response.” The U.S. Court of Appeals for the D.C. Circuit determined that FERC lacked statutory authority to impose such a methodology. The Supreme Court agreed to consider the following two questions: (1) Whether FERC reasonably concluded that it has authority under the Federal Power Act to regulate the rules used by operators of wholesale electricity markets to pay for reductions in electricity consumption and to recoup those payments through adjustments to wholesale rates; and (2) Whether the D.C. Circuit erred in holding that the rule issued by FERC is arbitrary and capricious. -- Justice Alito appears to be 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.

Nov 07 2015

11mins

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Rank #17: Ramos v. Louisiana - Post-Decision SCOTUScast

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On October 7, 2019, the Supreme Court heard oral arguments in Ramos v. Louisiana.
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.
In a vote of 6-3, the court reversed. Justice Gorsuch delivered the opinion of the court with respect to Parts I, II–A, III, and IV–B–1, in which Justices Ginsburg, Breyer, Sotomayor and Kavanaugh joined; an opinion with respect to Parts II–B, 4–B–2, and 5, in which Justices Ginsburg, Breyer and Sotomayor joined; and an opinion with respect to Part 4–A, in which Justices Ginsburg and Breyer joined. Justice Sotomayor filed an opinion concurring as to all but Part 4–A. Justice Kavanaugh filed an opinion concurring in part. Justice Thomas filed an opinion concurring in the judgment. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts joined, and in which Justice Kagan joined as to all but Part III–D.
To discuss the case, we have John C. Richter, Partner, Special Matters and Government Investigations, King & Spalding LLP.

May 16 2020

32mins

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Rank #18: Ocasio v. U.S. - Post-Argument SCOTUScast

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On October 6, 2015, the Supreme Court heard oral argument in Ocasio v. U.S. Ocasio challenges his conviction under the Hobbs Act for conspiracy to commit extortion, which arose from an alleged kickback scheme under which police officers funneled wrecked automobiles to a particular repair shop in exchange for monetary payments. -- The question before the Court is whether a conspiracy to commit extortion requires that the conspirators agree to obtain property from someone outside the conspiracy. -- To discuss the case, we have Timothy O’Toole, who is a Lawyer at Miller & Chevalier.

Nov 07 2015

11mins

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Rank #19: 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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Rank #20: California Public Employees’ Retirement System v. ANZ Securities Post-Decision SCOTUScast

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On June 26, 2017, the Supreme Court decided California Public Employees’ Retirement System v. ANZ Securities. Between 2007 and 2008, Lehman Brothers Holdings raised capital through a number of public securities offerings. California Public Employees’ Retirement System (CalPERS) purchased some of these securities. In 2008, a putative class action alleging federal securities law violations was filed against respondents--various financial firms involved in underwriting the offerings--in the U.S. District Court for the Southern District of New York. Because the complaint was filed on behalf of all persons who purchased the identified securities, petitioner CalPERS fell within the putative class. In 2011, however, CalPERS filed a separate action, alleging identical violations against respondent firms in the U.S. District Court for the Northern District of California. That suit was then transferred and consolidated with other related litigation in the Southern District of New York. The New York class action then settled, but CalPERS opted out of the settlement. Respondents thereafter moved to dismiss CalPERS’ separate suit based on Securities Act language providing that “[i]n no event shall any such action be brought … more than three years after the security was bona fide offered to the public,” the CalPERS suit having fallen outside the three-year limit. CalPERS argued that the time limit was equitably tolled during the pendency of the class action, but the district court rejected the claim and U.S. Court of Appeals for the Second Circuit affirmed. -- By a vote of 5-4, the Supreme Court affirmed the judgment of the Second Circuit. In an opinion by Justice Kennedy, the Court held that CalPERS’ untimely filing of its individual complaint more than three years after the relevant securities offering was grounds for dismissal. The three-year limitation in the Securities Act, the Court indicated, is a “statute of repose” and therefore not subject to equitable tolling. Justice Kennedy’s majority opinion was joined by the Chief Justice and Justices Thomas, Alito, and Gorsuch. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined. -- And now, to discuss the case, we have Mark Chenoweth, who is General Counsel for the Washington Legal Foundation.

Aug 09 2017

16mins

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United States Patent and Trademark Office v. Booking.com B.V.

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On June 30, 2020 the Supreme Court released its decision in United States Patent and Trademark Office v. Booking.com B.V.. In an 8-1 decision, the Court upheld the ruling of the lower court, which found that “Booking.com” is not a generic term, and is thus eligible for trademark protection. Justice Ginsburg wrote the majority opinion for the Court, writing that a website styled “generic.com” does not qualify it for federal trademark protection if the term has meaning to consumers; however, because “Booking.com” does not necessarily signify to consumers an online hotel reservation service, it is therefore not a generic term, and qualifies for protection. Justice Sotomayor authored a concurring opinion, and Justice Breyer dissented.

Joining us today to discuss this case and its implications is Zvi Rosen, Visiting Scholar and Professorial Lecturer in Law at George Washington University’s School of Law

Jul 27 2020

20mins

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CO Dept. of State v. Baca and Chiafalo v. WA - Post-Decision SCOTUscast

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On July 6, 2020, the Supreme Court affirmed the power of the states to regulate the decisions of presidential electors in Chiafalo v. Washington and its companion case Colorado Department of State v. Baca. The Court held that States may fine--or even replace--electors who vote for a candidate other than the winner of the statewide popular vote.
Joining us today to discuss this decision and its implications is Derek Muller, Professor of Law at University of Iowa College of Law.

Jul 23 2020

19mins

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Courthouse Steps Decision: CO Dept. of State v. Baca and Chiafalo v. WA

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On July 6, 2020, the Supreme Court affirmed the power of the states to regulate the decisions of presidential electors in Chiafalo v. Washington and its companion case Colorado Department of State v. Baca. The Court held that States may fine--or even replace--electors who vote for a candidate other than the winner of the statewide popular vote.
Joining us today to discuss this decision and its implications is Derek Muller, Professor of Law at University of Iowa College of Law.

Jul 23 2020

19mins

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Department of Homeland Security v. Thuraissigiam - Post-Decision SCOTUScast

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On June 25, in a 7-2 decision, the Supreme Court issued the opinion, penned by Justice Alito, in the case Department of Homeland Security v. Thuraissigiam.
The court reversed and remanded the case to the courts below, holding that, As applied in this case, U. S. C. § 1252(e)(2)—which limits the habeas review obtainable by a noncitizen detained for expedited removal—does not violate the suspension or due process clauses.
Justice Thomas filed a concurring opinion. Justice Breyer filed an opinion concurring in the judgment, in which Justice Ginsburg Joined. Justice Sotomayor filed a dissenting opinion, in which Justice Kagan joined.
To discuss the case, we have O.H. Skinner, Arizona Solicitor General.

Jul 21 2020

17mins

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Department of Homeland Security v. Regents of the University of California - Post-Decision SCOTUScast

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On June 18, 2020, the Supreme Court released its decision in the case of Department of Homeland Security v. Regents of the University of California. By a vote of 5-4, the judgment of the U.S. Court of Appeals for the Ninth Circuit (DHS v. Regents) was vacated in part and reversed in part, the judgment of the D.C. Circuit (Trump v. NAACP) was affirmed, and various orders of the Second Circuit (Wolf v. Vidal) were vacated, affirmed in part, or reversed in part. All the cases are remanded.
The Chief Justice's opinion for the Court was joined by Justices Ginsburg, Breyer, and Kagan in full, and by Justice Sotomayor as to all but Part IV. Justice Sotomayor concurred in part, concurred in the judgment in part, and dissented in part. Justice Thomas concurred in the judgment in part and dissented in part, joined by Justices Alito and Gorsuch. Justices Alito and Kavanaugh also filed opinions concurring on the judgment in part and dissenting in part. Our expert selection of speakers will discuss the decision and implications for the future.
To discuss the case, on this special panel episode, we have:
Dr. John C. Eastman, Henry Salvatori Professor of Law and Community Service and Director, Center for Constitutional Jurisprudence, Chapman University Fowler School of Law
Christopher Hajec, Director of Litigation at the Immigration Reform Law Institute
Mario Loyola, Senior Fellow at the Competitive Enterprise Institute
William A. Stock, Partner at Klasko Immigration Law Partners, LLP

Jul 20 2020

34mins

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United States Forest Service v. Cowpasture River Preservation Association - Post-Decision SCOTUScast

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On June 15, 2020, the Supreme Court released its decision in the case of United States Forest Service v. Cowpasture River Preservation Association. By a vote of 7-2, the judgment of the U.S. Court of Appeals for the Fourth Circuit was reversed, and the case remanded.
Per Justice Thomas's opinion for the Court: "We granted certiorari in these consolidated cases to decide whether the United States Forest Service has authority under the Mineral Leasing Act, 30 U. S. C. §181 et seq., to grant rights-of-way through lands within national forests traversed by the Appalachian Trail. 588 U. S. ___ (2019). We hold that the Mineral Leasing Act does grant the Forest Service that authority and therefore reverse the judgment of the Court of Appeals for the Fourth Circuit."
Justice Thomas's majority opinion was joined by the Chief Justice and Justices Breyer, Alito, Gorsuch, and Kavanaugh in full, and by Justice Ginsburg as to all but Part III-B-2. Justice Sotomayor dissented, joined by Justice Kagan.
To discuss the case, we have Hon. Paul D. Clement, Partner at Kirkland & Ellis LLP and Stephen A. Vaden, General Counsel at the U.S. Department of Agriculture.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Jul 20 2020

44mins

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Barr v. American Association of Political Consultants, Inc. - Post-Decision SCOTUScast

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On July 6, 2020, the U.S. Supreme Court released its decision in Barr v. American Association of Political Consultants Inc., a case involving a dispute over whether the government-debt exception to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.
By a vote of 6-3, in an opinion by Justice Kavanaugh, the Court affirmed the case, holding that The exception for calls to collect government debt from a federal ban on robocalls to cellphones violates the First Amendment, but the exception is severable from the rest of the Telephone Consumer Protection Act of 1991.
Justice Thomas joined the court’s opinion as to parts I and II. Justice Sotomayor filed an opinion concurring in the judgment. Justice Breyer filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which Justices Ginsburg and Kagan joined. Justice Gorsuch filed an opinion concurring in the judgment in part and dissenting in part, in which Justice Thomas joined as to part II.
To discuss the case, we have Michael R. Dimino, Professor of Law at Widener University School of Law.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Jul 20 2020

19mins

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McGirt v. Oklahoma - Post-Decision SCOTUScast

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On July 9, the Supreme Court handed down its opinion in McGirt v. Oklahoma. Jimcy McGirt sought post-conviction relief of three major sexual assault convictions, arguing his crimes occurred in Indian Country and thus were subject to the Indian Major Crimes Act. If that law applies, Mr. McGirt’s crimes should have been prosecuted in federal, rather than state court.
The Supreme Court ruled in favor of McGirt, holding that land in northeastern Oklahoma--reserved for the Creek Nation since the 19th century-- remains a reservation in accordance with a federal statute that gives the federal government jurisdiction to try certain major crimes committed by Indians in Indian country. Therefore, Oklahoma state courts did not have jurisdiction to convict Mr. McGirt.
To discuss this case and its implications, we have Andy Lester, partner at Spencer Fane LLP.

Jul 20 2020

13mins

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Our Lady of Guadalupe School v. Morrissey-Berru - Post-Decision SCOTUScast

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On July 8, 2020 the Supreme Court decided Our Lady of Guadalupe v. Morrissey Berru. In a 7-2 ruling, the court held that that a “ministerial exemption” derived from the First Amendment prevents civil courts from adjudicating schoolteacher Morrisey-Berru’s age discrimination claim. Justice Alito, writing for the majority, held that the process of identifying religious ministers within a specific faith group must be largely left up to that particular faith group, resulting in the reversal of the Ninth Circuits determination that Morrissey-Berru was not a minister.

Joining us to discuss this case and its implications is Daniel Blomberg, Senior Counsel at the Becket Fund for Religious Liberty.

Jul 16 2020

18mins

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Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania - Post-Decision SCOTUScast

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On July 8, 2020 the Supreme Court decided Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, upholding in a 7-2 ruling a federal rule exempting employers with religious or moral objections from providing contraceptive coverage to their employees under the Affordable Care Act. To discuss this case and its implications, we have Eric Kniffin, Partner at Lewis Roca Rothberger Christie LLP.

Jul 16 2020

16mins

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USAID v. Alliance for Society International, Inc. - Post-Decision SCOTUScast

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On June 29, 2020 the Supreme Court released its decision in United States Agency for International Development v. Alliance for Open Society International. By a vote of 5-3, the judgment of the U.S. Court of Appeals for the Second Circuit is reversed. The justices held that the enforcement of a law requiring foreign affiliates of domestic groups receiving funds to fight HIV/AIDS to have a policy opposing prostitution and sex trafficking does not violate the First Amendment. Justice Kavanaugh's majority opinion was joined by the Chief Justice and Justices Thomas, Alito, and Gorsuch. Justice Thomas also filed a concurring opinion. Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor. Justice Kagan took no part in the consideration or decision of the case. Our speakers will discuss the decision and its implications.
To discuss the case, we have both Casey Mattox, a Senior Fellow focusing on toleration and free speech at the Charles Koch Institute, and Krystal B. Swendsboe, Associate at Wiley Rein LLP.

Jul 14 2020

20mins

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June Medical Services, LLC v. Russo - Post-Decision SCOTUScast

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On June 29, 2020, the Supreme Court issued its first major abortion decision on the merits since Justice Anthony Kennedy's retirement. The consolidated cases, June Medical Services v. Russo and Russo v. June Medical Services, involved the constitutionality of Louisiana's law requiring physicians who perform abortions to have admitting privileges at a local hospital, and whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations, such as Louisiana's admitting privileges law, on behalf of their patients. The plurality opinion held that the abortion providers had standing and Louisiana's law was unconstitutional because it imposed an undue burden.
To discuss the case, we have Stephen H. Aden, Chief Legal Officer & General Counsel at Americans United for Life.

Jul 13 2020

20mins

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Atlantic Richfield Co. v. Christian - Post-Decision SCOTUScast

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On April 20, 2020, the Supreme Court, by a vote of 7-2, held that owners of polluted land within designated Superfund sites are “potentially responsible parties” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Dozens of Montana landowners sued Atlantic Richfield for trespass and nuisance over its dumping of tons of heavy metals, arsenic, and lead on their properties—pollution which led EPA to designate a 300 square mile area as a Superfund site. In addition to compensation, the landowners sought remediation damages to pay for a cleanup beyond that previously ordered by EPA. Chief Justice John Roberts, writing for the majority, concluded that the landowners’ case cannot proceed until they first obtain EPA approval for their cleanup plan. That narrow holding sidestepped the thornier issue, whether CERCLA preempts the landowners’ state common law claims. Justices Gorsuch and Thomas dissented, arguing that the majority’s interpretation is inconsistent with the statute’s text, undermines federalism and property rights, and tees up difficult constitutional questions.
To discuss the case, we have Jonathan Wood, Senior 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.

Jul 10 2020

19mins

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Espinoza v. Montana Department of Revenue - Post-Decision SCOTUScast

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On June 30, the Supreme Court released its decision in the case of Espinoza v. Montana Dep't of Revenue. By a vote of 5-4, the judgment of the Supreme Court of Montana was reversed and the case remanded.
Chief Justice Roberts' majority opinion was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justice Thomas filed a concurring opinion joined by Justice Gorsuch. Justices Alito and Gorsuch also filed concurring opinions. Justice Ginsburg dissented, joined by Justice Kagan. Justice Breyer dissented, joined by Justice Kagan as to Part I. Justice Sotomayor also filed a dissenting opinion.
To discuss the case, we have Michael Bindas, Senior Attorney at the Institute for Justice.

Jul 09 2020

17mins

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Seila Law, LLC v. Consumer Financial Protection Bureau (CFPB) - Post-Decision SCOTUScast

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On June 29, 2020, the Supreme Court decided Seila Law, LLC v. Consumer Financial Protection Bureau, a case that raises separation of power questions regarding the Consumer Financial Protection Bureau (CFPB). Specifically the Court ruled on whether Congress’s law that created the CFPB can stipulate that the President could not remove the Bureau’s director “at will”.
Seila Law, a law firm based in CA specializing in debt relief services, was being investigated by CFPB after being alleged of violating telemarketing sales rules. Seila Law challenged the CFPB’s authority to investigate their firm, maintaining the CFPB’s structure, namely its director’s immunity from “at will” removal by the President, was unconstitutional.
The Supreme Court ruled 5-4 in favor of Seila Law, finding Congress’s insulation of the Bureau’s director from at will removal did indeed violate the separation of powers.
Chief Justice Roberts delivered the majority’s opinion, in which Justices Thomas, Alito, Gorsuch, and Kavanaugh joined. Justice Kagan filed an opinion concurring in the judgement with regard to severability and dissenting in part in which Justices Breyer, Ginsburg, and Sotomayor joined.
Joining us to discuss this case and its implications are John Eastman, Henry Salvatori Profesor of Law and Community Service and Director of the Center for Constitutional Jurisprudence at Chapman University’s school of Law, and Brian Johnson, partner at Alston & Bird.

Jul 09 2020

22mins

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Bostock and Title VII Cases - Post-Decision SCOTUScast

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On June 15, by a vote of 6-3 the Supreme Court released its decision in Bostock v. Clayton County (combined with Altitude Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes Inc.), the Supreme Court affirmed that the judgment of the U.S. Court of Appeals for the Eleventh Circuit was reversed, and the case remanded (and the judgments of the Second Circuit in Altitude Express and the Sixth Circuit in R.G. & G.R. Harris Funeral Homes are affirmed).
Justice Gorsuch's majority opinion was joined by the Chief Justice and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito dissented, joined by Justices Thomas and Kavanaugh.
To discuss the case, we have Curt Levey, President of the Committee for Justice.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Jun 26 2020

13mins

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Lucky Brand Dungarees v. Marcel Fashions Group - Post-Decision SCOTUScast

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On May 14, 2020, in an opinion by Justice Sotomayor the Supreme Court, in a vote of 9-0, reversed and remanded the case Lucky Brand Dungarees v. Marcel Fashions Group holding:
Because the trademark action at issue challenged different conduct—and raised different claims—from an earlier action between the parties, Marcel cannot preclude Lucky Brand from raising new defenses, including a defense that Lucky Brand failed to press fully in the earlier suit.
To discuss the case, we have Paul Stancil, Professor of Law at Bingham Young University.

Jun 15 2020

17mins

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GE Energy Power Conversion France v. Outokumpu Stainless - Post-Argument SCOTUScast

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On June 1, 2020, the U.S. Supreme Court issued its decision, in GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC.
By a vote of 9-0, the Supreme Court reversed and remanded the judgment of the 11th Circuit. Justice Thomas, writing for the Court, held that “The Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not conflict with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories to those agreements.” Justice Sotomayor filed a concurring opinion.
To discuss the case, we have Sadie Blanchard, Associate Professor of Law at the University of Notre Dame.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Jun 11 2020

10mins

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CO Dept. of State v. Baca and Chiafalo v. WA Post-Argument SCOTUScast

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On May 13, 2020, the Supreme Court heard arguments in a pair of cases concerning the Electoral College.
In Colorado Department of State v. Baca, the Court will consider the claim of a presidential elector in Colorado who attempted to vote for someone other than Hillary Clinton, despite the fact that Hillary Clinton won Colorado's popular vote, and was replaced by another elector.
In Chiafalo v. Washington, the Court will hear the claims of three presidential electors who were each fined $1000 after they voted for a candidate other than Hillary Clinton in 2016, who also won Washington's popular vote. The cases will examine state power to regulate the actions of presidential electors and could affect how electors behave in the 2020 election.
To discuss the cases, we have Michael Morley, Assistant Professor at Florida State University College of Law.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Jun 09 2020

14mins

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Holguin-Hernandez v United States - Post-Argument SCOTUScast

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On Dec. 10, 2019, the U.S. Supreme Court heard argument in Holguin-Hernandez v. United States, a case involving a dispute over whether making a formal objection after pronouncement of the defendant’s sentence is necessary to invoke appellate review of the reasonableness of the sentence’s length.
In 2016, Petitioner Gonzalo Holguin-Hernandez pled guilty in federal district court to possession of marijuana with intent to distribute, and was sentenced to 24 months of imprisonment followed by two years of supervised release. As a citizen of Mexico, he also admitted to being unlawfully present in the United States. In October 2017, after completing his term of incarceration and starting his supervised release, Holguin-Hernandez was removed from the United States. In addition to the condition that he not commit another federal, state, or local crime, the terms of supervised release required that Holguin-Hernandez not illegally reenter the United States. In November 2017, was arrested by Border Patrol agents, admitted having carried marijuana into the U.S. from Mexico, and again pled guilty to possession with intent to distribute. He was sentenced to 60 months of imprisonment and 5 more years of supervised release. The U.S. Probation office then alleged that Holguin-Hernandez had violated the terms of supervised release relating to his initial conviction and sought revocation. In a subsequent hearing he admitted the violations and was sentenced to 12 months of imprisonment, to run consecutively to the 60-month term of imprisonment for the second drug trafficking offense. Although Holguin-Hernandez’s counsel argued against a consecutive sentence during the hearing as unnecessary in light of the considerably longer drug trafficking one, she did not formally object or seek reconsideration after the judge imposed the revocation sentence.
On appeal the U.S. Court of Appeals for the Fifth Circuit affirmed the sentence. Although Holguin-Hernandez argued that his sentence was longer than necessary to effectuate the statutory factors to be considered when imposing a sentence, the Court reasoned that he had not actually raised that objection in district court and therefore the sentence would be reviewed for plain error only. The Court found no plain error, indicating that the sentence fell within the Guidelines range and noting the Guidelines recommendation that a term of imprisonment for violation of supervised release be imposed consecutively to any other term the defendant might be serving. Other federal circuit courts of appeals had taken a different approach, however, and the Supreme Court subsequently granted certiorari to address whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence.
To discuss the case, we have Daniel Guarnera, Associate at Kellogg, Hansen, Todd, Figel & Frederick.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Jun 09 2020

25mins

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iTunes Ratings

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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.