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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 Jun 02, 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

20mins

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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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NY State Rifle & Pistol Association Inc. v. City of New York Post-Decision SCOTUScast

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On April 27, 2020, the U.S. Supreme Court released its opinion in New York State Rifle & Pistol Association Inc. v. City of New York, a case involving a dispute over whether New York City rules limiting transportation of licensed firearms to ranges within New York City limits (and certain state-designated hunting areas) violate the Second Amendment, the dormant Commerce Clause, and the constitutional right to travel.
Under New York state law, possessing a firearm without a license is prohibited. New York City issues “premises” licenses that permit possession of a pistol or revolver at a particular address, and under city “Rule 5-23” such firearms may not be lawfully removed from that address except for transport directly to or from authorized shooting ranges within New York City limits (as well as certain state-designated hunting areas). Plaintiffs, who hold New York City premises licenses, wished to transport their firearms to shooting ranges, competitions, and/or homes outside of New York City. They sued for injunctive relief in federal district court, alleging that Rule 5-23’s restrictions violated the Second Amendment and were otherwise invalid under the dormant Commerce Clause, the First Amendment right of expressive association, and the fundamental right to travel. The district court rejected all these claims and dismissed the case. The U.S. Court of Appeals for the Second Circuit, applying intermediate scrutiny to the Second Amendment claims, affirmed. The Supreme Court, however, subsequently granted certiorari to address whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.
The case was vacated and remanded with a 6-3 vote in a per curiam opinion on April 27, 2020. Justice Kavanaugh filed a concurring opinion. Justice Alito filed a dissenting opinion, in which Justice Gorsuch joined in full and Justice Thomas joined except for Part IV-B.
To discuss the case, we have David Thompson, of Cooper & Kirk and Amy Swearer, Legal Fellow at the Meese Center for Legal and Judicial Studies
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Jun 02 2020

27mins

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United States Agency for International Development v. Alliance for Open Society International, Inc. - Post-Argument SCOTUScast

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On May 5, 2020, the Supreme Court heard oral argument in United States Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., a case which considers whether the First Amendment bars enforcement of a funding-related federal policy requirement not only against domestic organizations but also their foreign affiliates.
The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 authorized the appropriation of billions of dollars to fund efforts by nongovernmental organizations to combat HIV/AIDS around the world. The Act provides, however, that none of these funds may be used by an organization “that does not have a policy explicitly opposing prostitution and sex trafficking.” 22 U.S.C. §7631(f). In its 2013 decision in Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., the Supreme Court held that this “Policy Requirement” violated the First Amendment, by compelling as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program.
Respondents are domestic organizations that carry out HIV/AIDS-related aid work, including activities undertaken through legally distinct foreign affiliates. As the Supreme Court’s decision in Agency for Int’l Development did not address foreign affiliates specifically, the federal government has continued to apply the Policy Requirement to them. The affiliates object that, while they do not condone prostitution, neither can they satisfy the Policy Requirement because their HIV/AIDS work necessarily involves them with the activities of sex-worker communities abroad. The affiliates, therefore, challenged the Policy Requirement as applied to them and the district court entered a permanent injunction in their favor. A divided panel of the U.S. Court of Appeals for the Second Circuit affirmed, concluding that the logic of the Supreme Court’s Agency for Int’l Development decision extended to foreign affiliates and not just domestic non-governmental organizations. The federal government thereafter sought certiorari and the Supreme Court agreed to consider whether the First Amendment bars enforcement of the Policy Requirement with respect to legally distinct foreign entities operating overseas that are affiliated with respondents.
To discuss the case, we have Casey Mattox, Senior Fellow of Free Speech and Toleration at the Charles Koch Institute and Krystal B. Swendsboe, Associate at Wiley Rein LLP.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Jun 02 2020

34mins

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US Patent and Trademark Office v. Booking.com B.V. - Post-Argument SCOTUScast

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On May 4, 2020, the U.S. Supreme Court heard argument in United States Patent and Trademark Office v. Booking.com B.V., a case presenting the question whether the addition by an online business of a generic top-level domain (“.com”) to an otherwise generic term can create a protectable trademark.
In 2011 and 2012, Booking.com sought trademark protection for its web address name, “Booking.com”--but the U.S. Patent and Trademark Office (PTO) rejected the application. “Booking” was either generic and not protectable, the PTO stated, or else a descriptive mark to which the addition of “.com” was insufficient to demonstrate the “secondary meaning” necessary for federal protection of a descriptive mark. Booking.com filed a civil action in federal district court to appeal the PTO rejection and prevailed: the district court held that “Booking.com” as a whole was a descriptive mark that had acquired secondary meaning; that is, it was sufficiently distinctive to establish a mental association in the mind of the relevant public between the proposed mark and the source of the product or service. The PTO in turn appealed, but a divided panel of the U.S. Court of Appeals for the Fourth Circuit affirmed the judgment of the district court. The U.S. Supreme Court thereafter granted the PTO’s cert petition to address whether--given that generic terms may not be federally registered as trademarks--the addition by an online business of a generic top-level domain (“.com”) to an otherwise generic term can create a protectable trademark.
To discuss the case, we have Art Gollwitzer, partner at Michael Best & Friedrich LLP and Zvi Rosen, Visiting Scholar and Professorial Lecturer in Law at George Washington 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.

Jun 02 2020

33mins

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

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This SCOTUScast addresses the January 22 Supreme Court argument in Espinoza v. Montana Department of Revenue. The question, in this case, is whether it violates the Free Exercise Clause for a state supreme court to invalidate a school choice program, merely because that program includes religious options, pursuant to that state’s Blaine Amendment. The Institute for Justice represents the Plaintiffs in the case.

To discuss the case, we have Erica Smith, Senior Attorney at the Institute for Justice.

May 30 2020

13mins

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Opati v. Republic of Sudan - Post-Decision SCOTUScast

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On May 18, 2020, the Supreme Court held by a vote of 8-0 that Plaintiffs in a suit against a foreign state for personal injury or death caused by acts of terrorism under 28 U. S. C. § 1605A(c) may seek punitive damages for pre-enactment conduct.
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.
By a vote of 8-0, the case was vacated and remanded, in an opinion by Justice Gorsuch on May 18, 2020. Justice Kavanaugh took no part in the consideration or decision of this case.
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 23 2020

9mins

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

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On May 6, 2020, the U.S. Supreme Court heard argument 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.
To discuss the case, we have Kevin Walsh, Professor of Law at the University of Richmond School of Law.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

May 21 2020

13mins

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Maine Community Health Options v. United States - Post-Decision SCOTUScast

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On April 27, 2020, the Supreme Court held by a vote of 8-1, in the case Maine Community Health Options v. United States, that The Patient Protection and Affordable Care Act’s now-expired “Risk Corridors” statute—which set a formula for calculating payments to healthcare insurers for unexpectedly unprofitable plans during the first three years of online insurance marketplaces—created a government obligation to pay insurers the full amount of their computed losses; and the petitioners properly relied on the Tucker Act to sue for damages in the Court of Federal Claims.
The judgment reversed and remanded the case to the courts below. The opinion was written by Justice Sotomayor on April 27, 2020. Justices Thomas and Gorsuch joined the court's opinion except for Part III-C. Justice Alito filed a dissenting opinion.
To discuss the case, we have Julia Mahoney, Professor of Law at the University of Virginia School of Law.

May 21 2020

17mins

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Our Lady Guadalupe School v. Morrissey-Berru - Post-Argument SCOTUScast

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On May 11, 2020, the U.S. Supreme Court heard argument in the consolidated cases Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, which involves a dispute over whether the First Amendment's religion clauses prevent civil courts from adjudicating employment-discrimination claims brought by an employee against her religious employer when the employee carried out important religious functions.
In 2012, the case Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, the Supreme Court, unanimously held that, under the First Amendment’s Religion Clauses, “it is impermissible for the government to contradict a church’s determination of who can act as its ministers.” Accordingly, the Court recognized that there is a “ministerial exception” that precludes the application of employment-discrimination laws to claims concerning the relationship between a religious institution and its ministers. But who qualifies as a minister? The Hosanna-Tabor Court refused “to adopt a rigid formula,” but found that the employee at issue, in that case, was a minister in light of several “considerations”—the formal title given to the employee by the church, the substance reflected in that title, the employee’s own use of that title, and the important religious functions the employee performed.
Eight years later, the question of “who’s a minister?” is back before the Court in Our Lady of Guadalupe v. Morrissey-Berru, and St. James School v. Biel. In each case, teachers at Catholic schools brought discrimination claims, and the Ninth Circuit concluded the ministerial exception did not apply. Now before the Supreme Court, the schools contend that the Ninth Circuit has adopted the “rigid formula” that the Hosanna-Tabor Court eschewed, and they argue that in most cases a “religious functions” test is sufficient.
To discuss the case, we have Nathan Chapman, Associate Professor of Law at the University of Georgia School of Law.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

May 20 2020

13mins

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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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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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Kansas v. Glover - Post-Decision SCOTUScast

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On April 6, 2020, the Supreme Court held by a vote of 8-1 that when a law enforcement officer lacks information negating an inference that a vehicle’s driver is the registered owner, an investigative traffic stop made after running the vehicle’s license plate and learning that the registered owner’s driver’s license has been revoked is reasonable under the Fourth Amendment. In an opinion written by Justice Thomas, the Court invoked its 1981 decision in United States v. Cortez (1981), which indicates that an officer may initiate a brief investigative traffic stop if he or she has a “particularized and objective basis” to suspect legal wrongdoing. Here the officer’s inference that the vehicle’s registered owner--whose license was revoked--was also the current driver was a commonsense one; even if not invariably true the inference was reasonable, and the officer possessed no information sufficient to rebut it.
Justice Thomas’ majority opinion was joined by all other justices except Justice Sotomayor, who dissented. In addition, Justice Kagan filed a concurring opinion that was joined by Justice Breyer.
To discuss the case, 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.

May 16 2020

18mins

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Shular v. United States - Post-Decision SCOTUScast

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On Feb. 26, 2020, in a 9-0 decision, the Supreme Court decided Shular v. United States, rejecting the defense argument that Florida’s unique drug laws cannot be used to enhance a federal sentence. At issue was a federal statute known as the Armed Career Criminal Act (“ACCA”). ACCA imposes a mandatory 15-year sentence on defendants convicted of federal firearms-related felonies if they have 3 or more prior convictions for “serious drug offenses” or “violent felonies.” In 2017, local law enforcement officers executed a search warrant at the Florida home of Eddie Shular who was the target of a drug trafficking investigation being conducted by the Drug Enforcement Administration (“DEA”). During the search, the officers seized a firearm from a bedroom closet. Because Shular was a convicted felon, he was charged under federal law with the crime of being a felon in possession of a firearm (18 USC section 922(g)(1)). He pled guilty to that offense and because he had more than three prior convictions for serious drug offenses, he was sentenced to the mandatory minimum of 15 years in prison under the applicable federal statute. He appealed his sentence arguing that because, under Florida law, none of his state convictions would qualify as a “serious drug offense” because the relevant state laws did not require that the government prove that Shular had “knowledge of the illicit nature of the substance,” and the Florida crimes were, therefore, broader than the generic drug offense analogs under federal law.
The Eleventh Circuit upheld his conviction and sentence, rejecting the application of the “categorical approach” to defining “serious drug offenses, and holding that the ACCA definition “requires only that the predicate offense involves certain activities related to controlled substances.”
The Supreme Court affirmed, holding that “serious drug offense” requires only that the state offense involves the conduct specified in the statute, and does not require that the state offense in question match certain generic drug offenses under federal law.
The opinion was written by Justice Ginsburg. Justice Kavanaugh filed a concurring opinion.
To discuss the case, we have Gregory A. Brower, Shareholder, Brownstein Hyatt Farber Schreck.

May 08 2020

15mins

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Romag Fasteners Inc. v. Fossil Inc. - Post-Decision SCOTUScast

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On April 23, 2020, in a 9-0 decision, the Supreme Court decided Romag Fasteners Inc. v. Fossil Inc., holding that a plaintiff in a trademark infringement suit is not required to show that a defendant willfully infringed the plaintiff’s trademark as a precondition to an award of profits.
The decision, which vacated and remanded the opinion below from the Federal Circuit, was written by Justice Gorsuch on April 23, 2020. Justice Alito filed a concurring opinion, in which Justices Breyer and Kagan joined. Justice Sotomayor filed an opinion concurring in the judgment.
To discuss the case, we have Adam Mossoff, Professor of Law at Antonin Scalia Law School, George Mason University.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

May 07 2020

15mins

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Monasky v. Taglieri - Post-Decision SCOTUScast

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On Feb. 25, 2020, in a vote of 9-0 the U.S. Supreme Court decided Monasky v. Taglieri, holding that a child’s habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction depends on the totality of the circumstances specific to the case, not on categorical requirements such as an actual agreement between the parents.
The Hague Convention, and the federal law that implements it in the United States, indicate that a parent whose child has been removed to another country in violation of that parent’s custodial rights can petition in federal or state court for the return of the child to the child’s country of habitual residence. The courts of that country can then resolve any underlying custody disputes.
The opinion was given by Justice Ginsburg. Justice Thomas joined as to Parts I, III and IV, and filed an opinion concurring in part and concurring in the judgment. Justice Alito filed an opinion concurring in part and concurring in the judgment.
To discuss the case, we have Margaret Ryznar, Professor of Law, Indiana University Robert H. McKinney School of Law.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

May 07 2020

7mins

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County of Maui, Hawai’i v. Hawai’i Wildlife Fund - Post-Decision SCOTUScast

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On April 23, 2020, in a 6-3 decision, the Supreme Court decided County of Maui, Hawai’i v. Hawai’i Wildlife Fund and vacated and remanded the case. The Court held that the Clean Water Act, which forbids “any addition” of any pollutant from “any point source” to “navigable waters” without the appropriate Environmental Protection Agency permit, requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.
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.
The 6-3 opinion was given by Justice Breyer on April 23, 2020. Justice Kavanaugh filed a concurring opinion. Justice Thomas filed a dissenting opinion, in which Justice Gorsuch joined. Justice Alito filed a dissenting opinion.
To discuss the case, 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.

May 05 2020

11mins

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Barton v. Barr - Post-Decision SCOTUScast

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On April 23, 2020, in a 5-4 decision, the Supreme Court decided Barton v. Barr, a case involving a dispute over whether, for the purposes of the “stop-time rule,” a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] ... inadmissible”.
The stop-time rule affects the discretion afforded the U.S. Attorney General to cancel the removal from the United States of a lawful permanent resident who has resided in the U.S. continuously for 7 years. Under the stop-time rule, the requisite continuous residence terminates once the alien commits any of a certain number of offenses that render the alien inadmissible to (or removable from) the United States under federal law. Thus, committing a listed offense may cause an alien to fall short of the continuous 7-year residence requirement and thereby become ineligible for cancellation of removal.
Andre Martello Barton, after receiving lawful permanent resident status, was convicted in 1996 on three counts of aggravated assault, one count of criminal damage to property, and one count of firearm possession during commission of a felony, all in violation of state law. In 2007 and 2008, he was also convicted of several state law drug offenses. The federal government then initiated proceedings to remove Barton based on his various convictions. He conceded removability on the basis of his controlled substance and gun possession offenses but applied for cancellation of removal based on continuous residence. The government argued that Barton’s 1996 convictions triggered the stop-time rule, thereby disqualifying him for cancellation of removal. The Immigration Judge ruled in favor of the government and the Board of Immigration Appeals affirmed. Barton then petitioned for relief from the U.S. Court of Appeals for the Eleventh Circuit, which rejected his argument that the stop-time rule only applies to aliens seeking admission to the United States, and therefore denied his petition.
In a 5-4 vote, the Supreme Court affirmed, holding that eligibility for cancellation of removal of a lawful permanent resident who commits a serious crime during the initial seven years of residence need not be one of the offenses of removal.
The opinion was written by Justice Kavanaugh on April 23, 2020. Justice Sotomayor filed a dissenting opinion, in which Justices Ginsburg, Breyer, and Kagan joined.
To discuss the case, we have Amy Moore, Professor of Law at Belmont 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.

May 04 2020

15mins

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U.S. v. Sineneng-Smith - Post-Argument SCOTUScast

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On February 25, the Supreme Court heard oral arguments in the case of United States v. Sineneng-Smith. At issue is "whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional."
To discuss the cases, we have Brian M. 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.

May 01 2020

33mins

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Liu v. Securities and Exchange Commission (SEC) - Post-Argument SCOTUScast

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On March 3, 2020, the Supreme Court heard oral arguments for the case of Liu v. Securities and Exchange Commission (SEC). At issue is "whether the Securities and Exchange Commission may seek and obtain disgorgement from a court as “equitable relief” for a securities law violation even though the Supreme Court has determined that such disgorgement is a penalty."
To discuss the case, we have Todd F. Braunstein, General Counsel - International, Willis Towers Watson.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Apr 28 2020

14mins

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Kahler v. Kansas - Post-Decision SCOTUScast

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On March 23, 2020, the Supreme Court held by a vote of 6-3 that the federal Due Process Clause does not require a state to adopt an insanity test that turns on a defendant’s ability to recognize that his or her crime was morally wrong. In an opinion written by Justice Kagan, the Court reaffirmed its 1968 plurality opinion in Powell v. Texas, 392 U. S. 514, declaring that criminal responsibility "is animated by complex and ever-changing ideas that are best left to the States to evaluate and reevaluate over time." The Court explained that the relationship between mental illness and criminal liability, in particular, is an ongoing dialogue between the law and psychology, and the Due Process Clause does not require that dialogue be frozen in "a rigid constitutional mold."
Justice Kagan’s majority opinion was joined by the Chief Justice and Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor.
To discuss the case, we have GianCarlo Canaparo, Legal Fellow at the Heritage Foundation.

Apr 22 2020

18mins

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Thompson v. Hebdon - Post-Decision SCOTUScast

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On Nov. 25, 2020, the U.S. Supreme Court issued a summary opinion in Thompson v. Hebdon, a case involving campaign-finance law. Specifically at issue was whether Alaska’s political contribution limits are consistent with this Court’s First Amendment precedents.
Currently, Alaska’s law imposes (among other things) a $500 annual limit on individual contributions to a political candidate and to any group other than a political party.
The 9th Circuit U.S. Court of Appeals upheld the limits, ruling that they were drawn narrowly to prevent quid pro quo corruption or the appearance of such corruption.
The Supreme Court, in an per curiam opinion, granted the petition of cert, vacated the decision below and remanded the case back for the 9th Circuit to revisit. Justice Ginsburg filed a statement.
To discuss the case, we have Derek Muller, Professor of Law at Pepperdine University Caruso School of Law.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Apr 15 2020

8mins

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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.