Cover image of SCOTUScast
(43)

Rank #125 in Politics category

News
Politics

SCOTUScast

Updated 6 days ago

Rank #125 in Politics category

News
Politics
Read more

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

Read more

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

43 Ratings
Average Ratings
30
5
3
0
5

Excellent

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

Excellent, dispassionate summaries & analyses

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

iTunes Ratings

43 Ratings
Average Ratings
30
5
3
0
5

Excellent

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

Excellent, dispassionate summaries & analyses

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

SCOTUScast

Updated 6 days ago

Rank #125 in Politics category

Read more

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: Venezuela v. Helmerich & Payne International - Post-Argument SCOTUScast

Podcast cover
Read more
On November 2, 2016, the Supreme Court heard oral argument in Venezuela v. Helmerich & Payne International. Helmerich & Payne International Drilling Company owns a subsidiary that, in 2007, contracted to provide Venezuela's state-owned oil corporation the use of Helmerich’s drilling rigs. When unpaid invoices to the state-owned company surpassed $100 million in 2009, Helmerich refused to renew the contract and prepared to remove its equipment. Employees of the Venezuelan corporation, along with the Venezuelan National Guard, blockaded the equipment yards, and then-President Hugo Chavez issued a Decree of Expropriation. -- Helmerich sued in federal district court under the expropriation and commercial activity exceptions to the Foreign Sovereign Immunities Act. Venezuela moved to dismiss, and the district court granted the motion with respect to the expropriation claim but denied it with respect to the commercial activity claim. The U.S. Court of Appeals for the District of Columbia Circuit reversed, holding that because the expropriation claim was neither insubstantial nor frivolous, the district court should not have granted the motion to dismiss that claim--but should have dismissed the commercial activity claim because the subsidiary’s commercial activity had no “direct effect” in the United States. -- The question before the Supreme Court is whether the pleading standard for alleging that a case falls within the Foreign Sovereign Immunities Act’s expropriation exception is more demanding than the standard for pleading jurisdiction under the federal-question statute, which allows a jurisdictional dismissal only if the federal claim is wholly insubstantial and frivolous. -- To discuss the case, we have Donald Earl “Trey” Childress III, who is Professor of Law at the Pepperdine University School of Law.
Jan 04 2017
9 mins
Play

Rank #2: California Public Employees’ Retirement System v. ANZ Securities - Post-Argument SCOTUScast

Podcast cover
Read more
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
19 mins
Play

Rank #3: Whole Woman's Health v. Hellerstedt - Post-Argument SCOTUScast

Podcast cover
Read more
On March 2, 2016, the Supreme Court heard oral argument in Whole Woman's Health v. Hellerstedt. Whole Woman’s Health and other Texas abortion providers sued Texas officials seeking declaratory and injunctive relief against a state law requiring that physicians who perform abortions have admitting privileges at a hospital within thirty miles of the location where the abortion is performed, and requiring that abortion facilities satisfy the standards set for ambulatory surgical centers (“ASC”s). The district court enjoined enforcement of both requirements “as applied to all women seeking a previability abortion,” and as applied to abortion facilities in McAllen and El Paso, but dismissed claims that the law violated equal protection and effected an unlawful delegation. -- The U.S. Court of Appeals for the Fifth Circuit affirmed dismissal of the equal protection and unlawful delegation claims, and affirmed but modified the injunction of the ASC and admitting privileges requirements as applied to the McAllen facility. The Court vacated the district court’s injunction of the admitting privileges requirement as applied to “all women seeking a previability abortion,” however, and reversed the injunction of the ASC requirement on its face (and in the context of medication abortion), as well as the injunction of the admitting privileges and ASC requirements as applied to the El Paso facility. As a result, the Texas law was to remain in effect statewide--except for the ASC requirement as applied to the Whole Woman’s Health abortion facility in McAllen, and the admitting privileges requirement as applied to a particular doctor when working at the McAllen facility. The U.S. Supreme Court, however, stayed issuance of the mandate on the Fifth Circuit’s judgment, and that stay currently remains in place pending issuance of the written judgment of the Supreme Court. Thus, the district court’s original injunctions against the Texas law remain in effect for now. -- There are two questions before the Supreme Court: (1) Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and (2) whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would (according to petitioners) cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health - or any other valid interest. -- To discuss the case, we have Roger Severino who is Director, DeVos Center for Religion and Civil Society at The Heritage Foundation.
Mar 09 2016
24 mins
Play

Rank #4: Turner v. United States - Post-Argument SCOTUScast

Podcast cover
Read more
On March 29, 2017, the Supreme Court heard oral argument in Turner v. United States, which was consolidated with Overton v. United States. In 1984, the body of Catherine Fuller was discovered in an alley after she had been beaten and raped. Sufficient physical evidence to identify the perpetrators was not recovered, and the medical examiner could not determine the number of attackers involved. Thirteen teenagers were initially indicted for being involved in a group effort to originally rob and subsequently assault and kill her. Two of them, Harry Bennett and Calvin Alston, pled guilty and agreed to testify, but the details in their accounts differed. Turner and nine other defendants were found guilty by a jury, and their convictions were affirmed on direct appeal. Nearly 25 years later, Turner and several of the other original defendants moved to have their sentences vacated, claiming that they had not received fair trials because the government had withheld exculpatory evidence in violation of Brady v. Maryland. They also argued that newly discovered evidence, including the recantations of Bennett and Alston, established that they were actually innocent of the crime. The trial court denied the motion, and the District of Columbia Court of Appeals affirmed. The Court held that the defendants had not shown a reasonable probability that the outcome of their trials would have been different with the new evidence. -- The question now before the Supreme Court is whether the petitioners' convictions must be set aside under Brady v. Maryland. -- To discuss the case, we have Brian Lichter, who is Associate at Latham & Watkins.
May 17 2017
15 mins
Play

Rank #5: Trinity Lutheran Church of Columbia v. Comer - Post-Decision SCOTUScast

Podcast cover
Read more
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
20 mins
Play

Rank #6: Evenwel v. Abbott - Post-Decision SCOTUScast

Podcast cover
Read more
On April 4, 2016, the Supreme Court decided Evenwel v. Abbott. As required by the Texas Constitution, the Texas legislature reapportioned its senate districts after the publication of the 2010 census, formally adopting an interim plan that had been put in place for the 2012 primaries. Plaintiffs, who are registered Texas voters, sued the Texas governor and secretary of state, asserting that the redistricting plan violated the one-person, one-vote principle of the Fourteenth Amendment’s Equal Protection Clause, by failing to apportion districts to equalize both total population and voter population. A three-judge district court ruled in favor of the state officials. -- On appeal, the question before the Supreme Court was whether the three-judge district court correctly held that the “one-person, one-vote” principle under the Equal Protection Clause allows States to use total population, and does not require States to use voter population when apportioning state legislative districts. -- By a vote of 8-0, the Supreme Court affirmed the judgment of the three-judge district court. Justice Ginsburg delivered the opinion of the Court, holding that constitutional history, precedent, and longstanding practice demonstrate that a state may draw its legislative districts based on total population. The Chief Justice and Justices Kennedy, Breyer, Sotomayor, and Kagan joined Justice GInsburg’s opinion for the Court. Justice Thomas filed an opinion concurring in the judgment. Justice Alito also filed an opinion concurring in the judgment, which Justice Thomas joined except as to Part III-B. -- To discuss the case, we have Andrew Grossman, who is Partner at Baker & Hostetler, LLP.
May 16 2016
21 mins
Play

Rank #7: Gill v. Whitford - Post-Argument SCOTUScast

Podcast cover
Read more
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
14 mins
Play

Rank #8: Friedrichs v. California Teachers Association - Post-Argument SCOTUScast

Podcast cover
Read more
On January 11, 2016, the Supreme Court heard oral argument in Friedrichs v. California Teachers Association. Under California law and existing Supreme Court precedent, unions can become the exclusive bargaining representative for the public school employees of their district and establish an “agency shop” arrangement requiring public school employees either to join the union or pay a fee to support the union’s collective bargaining activities. Although the First Amendment prohibits unions from compelling non-members to support activities unrelated to collective bargaining, in California non-members must affirmatively “opt out” to avoid paying for these unrelated or “nonchargeable” expenses. -- Here a group of public school employees sued the California Teachers Association and various other entities, arguing that the agency shop arrangement itself--as well as the opt-out requirement--violated the First Amendment. The district court denied their claim and the U.S. Court of Appeals for the Ninth Circuit affirmed based on existing precedent and the 1997 Supreme Court decision Abood v. Detroit Board of Education. -- The two questions now before the Supreme Court are: (1) Whether the Abood precedent should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech. -- To discuss the case, we have Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law, New York University School of Law and Professor Emeritus and a senior lecturer at the University of Chicago Law School.
Jan 13 2016
15 mins
Play

Rank #9: The American Legion v. American Humanist Association - Post-Decision Podcast

Podcast cover
Read more
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
17 mins
Play

Rank #10: Iancu v. Brunetti Post-Decision Podcast

Podcast cover
Read more
On June 24, 2019, the Supreme Court decided Iancu v. Brunetti, a case considering whether a provision of the Lanham Act prohibiting the registration of “immoral or scandalous” trademarks infringes the First Amendment.
Business owner Erik Brunetti applied to register his clothing brand’s trademark, “FUCT,” (pronounced as the individual letters F-U-C-T) but was refused by the U.S. Patent and Trademark Office (PTO) because the Lanham Act prohibits registration of marks that consist of or comprise “immoral or scandalous” matter. The PTO Trademark Trial and Appeal Board deemed the mark vulgar and indicated that it carried “negative sexual connotations,” and in association with Brunetti’s website imagery and products conveyed misogyny, depravity, and violence. Brunetti then appealed to the U.S. Court of Appeals for the Federal Circuit, which held that the Lanham Act’s prohibition violated the First Amendment. The Supreme Court then granted certiorari to address the lower court’s invalidation of the federal statute.
By a vote of 6-3, the Supreme Court upheld the judgment of the Federal Circuit. In an opinion delivered by Justice Kagan, the Court held that the Lanham Act prohibition on the registration of “immoral” or “scandalous” trademarks constitutes viewpoint discrimination that infringes the First Amendment.
Justice Kagan’s majority opinion was joined by which Justices Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh. Justice Alito filed a concurring opinion. Justice Breyer and Chief Justice Roberts filed opinions concurring in part and dissenting in part. Justice Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined.
To discuss the case, we have Thomas Berry, Attorney at the Pacific Legal Foundation.
Jul 30 2019
20 mins
Play

Rank #11: Bethune-Hill v. Virginia State Board of Elections

Podcast cover
Read more
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
11 mins
Play

Rank #12: Hernandez v. Mesa - Post-Decision SCOTUScast

Podcast cover
Read more
On June 26, 2017, the Supreme Court decided Hernandez v. Mesa. In 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, died after being shot near the border between El Paso, Texas and Juarez, Mexico by Jesus Mesa, Jr., a U.S. Border Patrol Agent. Hernandez’s parents, who contend that their son was on Mexican soil at the time of the shooting, sued Mesa in federal district court in Texas, alleging violations of the Fourth and Fifth Amendments. After hearing the case en banc, the U.S. Court of Appeals for the Fifth Circuit ultimately ruled in favor of Mesa, concluding that Hernandez could not assert a Fourth Amendment claim and that Mesa was entitled to qualified immunity on the parents’ Fifth Amendment claim. -- In granting certiorari, the U.S. Supreme Court directed the parties to address whether Hernandez’s parents could even raise their claims under Bivens v. Six Unknown Federal Narcotics Agents, which, sovereign immunity notwithstanding, recognized an implied right of action for damages against federal officers alleged to have violated a citizen’s constitutional rights. Ultimately, the Court vacated the judgment of the Fifth Circuit and remanded the case. -- In a per curiam opinion, the Court underscored that a Bivens remedy is not available when "special factors counsel[] hesitation in the absence of affirmative action by Congress," and noted that the Court had recently clarified in Ziglar v. Abbasi “what constitutes a special factor counselling hesitation.” The Fifth Circuit, the Court directed, should on remand resolve in the first instance the extent to which Abbasi may bear on this case. The Court acknowledged that the Fifth Circuit did not address the Bivens issue because that court had concluded that Hernandez lacked any Fourth Amendment rights to assert--but the Supreme Court considered it imprudent to resolve such a consequential question without a resolution of the Bivens issue first. Finally, the Court indicated that the Fifth Circuit had erred in finding qualified immunity for Mesa regardless of any Fifth Amendment violation because the Fifth Circuit had relied on facts about Hernandez’s nationality and ties to the United States that were unknown to Mesa at the time of the shooting. -- Justice Thomas filed a dissenting opinion. Justice Breyer filed a dissenting opinion, in which Justice Ginsburg joined. Justice Gorsuch took no part in the consideration or decision of this case. -- To discuss the case, we have Steven Giaier, who is Senior Counsel, House Committee on Homeland Security.
Jul 24 2017
17 mins
Play

Rank #13: Matal v. Tam - Post-Decision SCOTUScast

Podcast cover
Read more
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
15 mins
Play

Rank #14: Fisher v. Univ. of Texas at Austin - Post-Decision SCOTUScast

Podcast cover
Read more
On June 23, 2016, the Supreme Court decided Fisher v. Univ. of Texas at Austin. This is the second time the case has come before the high court. Abigail Fisher, a white female, applied for admission to the University of Texas at Austin (the University) but was denied. Fisher sued the University and argued that the use of race as a consideration in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the University’s admissions process was constitutional, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The case went to the Supreme Court (Fisher I), which held that the appellate court erred in how it applied the strict scrutiny standard, improperly deferring to the University’s good faith in its use of racial classifications. On remand the Fifth Circuit again ruled in favor of the University, deeming its use of race in the admissions process narrowly tailored to a legitimate interest in achieving “the rich diversity that contributes to its academic mission.” -- On its second trip to the Supreme Court, the question was whether the Fifth Circuit’s re-endorsement of the University’s use of racial preferences could be sustained under the Equal Protection Clause. By a vote of 4-3, the Supreme Court affirmed the judgment of the Fifth Circuit. Justice Kennedy delivered the opinion of the court, which held that the race-conscious admissions program in use at the time of Fisher’s application was narrowly tailored and lawful under the Equal Protection Clause. Justice Kennedy’s majority opinion was joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Thomas filed a dissenting opinion. Justice Alito also filed a dissenting opinion, in which Chief Justice Roberts and Justice Thomas joined. Justice Kagan took no part in the consideration or decision of the case. -- To discuss the case, we have Roger B. Clegg, who is President and General Counsel, Center for Equal Opportunity.
Jul 12 2016
10 mins
Play

Rank #15: Whole Woman's Health v. Hellerstedt - Post-Decision SCOTUScast

Podcast cover
Read more
On June 27, 2016, the Supreme Court decided Whole Woman's Health v. Hellerstedt. Whole Woman’s Health and other Texas abortion providers sued Texas officials seeking declaratory and injunctive relief against a state law requiring that physicians who perform abortions have admitting privileges at a hospital within thirty miles of the location where the abortion is performed, and requiring that abortion facilities satisfy the standards set for ambulatory surgical centers (“ASC”s). The district court enjoined enforcement of both requirements “as applied to all women seeking a previability abortion,” and as applied to abortion facilities in McAllen and El Paso, but dismissed claims that the law violated equal protection and effected an unlawful delegation. -- The U.S. Court of Appeals for the Fifth Circuit affirmed dismissal of the equal protection and unlawful delegation claims, and affirmed but modified the injunction of the ASC and admitting privileges requirements as applied to the McAllen facility. The Court vacated the district court’s injunction of the admitting privileges requirement as applied to “all women seeking a previability abortion,” however, and reversed the injunction of the ASC requirement on its face (and in the context of medication abortion), as well as the injunction of the admitting privileges and ASC requirements as applied to the El Paso facility. As a result, the Texas law was to remain in effect statewide--except for the ASC requirement as applied to the Whole Woman’s Health abortion facility in McAllen, and the admitting privileges requirement as applied to a particular doctor when working at the McAllen facility. The U.S. Supreme Court, however, stayed issuance of the mandate on the Fifth Circuit’s judgment, ultimately reversing that judgment by a vote of 5-3 and remanding the case. -- Justice Breyer delivered the opinion of the Court, holding that petitioners’ constitutional claims were not barred by res judicata, and that both the admitting-privileges and the ambulatory surgical-center requirements placed a substantial obstacle in the path of women seeking a previability abortion, constituted an undue burden on abortion access, and violated the Constitution. Justice Breyer’s majority opinion was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Ginsburg filed a concurring opinion. Justice Thomas filed a dissenting opinion. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts and Justice Thomas joined. -- To discuss the case, we have Roger Severino, who is Director, DeVos Center for Religion and Civil Society at The Heritage Foundation.
Jul 12 2016
22 mins
Play

Rank #16: Hurst v. Florida - Post-Argument SCOTUScast

Podcast cover
Read more
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
11 mins
Play

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

Podcast cover
Read more
On May 14, 2018, the Supreme Court decided McCoy v. Louisiana, a case considering whether defense counsel may--against the defendant’s express wishes--concede his client’s guilt in an effort to avoid the death penalty.
In 2008, Robert McCoy was indicted on three counts of first-degree murder for the deaths of the mother, stepfather, and son of his estranged wife. McCoy pleaded not guilty, maintaining that he was out of state at the time of the murder. In 2010, his relationship with the court-appointed public defender broke down, and in March 2010 Larry English became McCoy’s defense attorney. English concluded that the evidence against McCoy was overwhelming and told McCoy that he would concede McCoy’s guilt in an effort to avoid the death penalty; McCoy adamantly opposed English’s strategy. At trial, English nevertheless indicated repeatedly to the jury that McCoy had caused the victims’ deaths and pleaded for mercy. McCoy protested unsuccessfully to the trial judge and was permitted to testify to his innocence, but was ultimately convicted and sentenced to death. The Louisiana Supreme Court affirmed the trial court’s ruling that defense counsel had authority to concede guilt over McCoy’s objection as a strategy to avoid a death sentence. In light of a division of opinion among state courts of last resort on whether it is unconstitutional to allow defense counsel to concede guilt over the defendant’s intransigent and unambiguous objection, the U.S. Supreme Court granted certiorari.
By a vote of 6-3, the U.S. Supreme Court reversed the judgment of the Louisiana Supreme Court and remanded the case for a new trial. In an opinion delivered by Justice Ginsburg, the Court held that the Sixth Amendment guarantees a defendant the right to choose the fundamental objective of his defense and insist that counsel refrain from admitting guilt, even when counsel’s experience-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.
Justice Ginsburg delivered the opinion of the Court, which was joined by the Chief Justice, and Justices Kennedy, Breyer, Sotomayor, and Kagan. Justice Alito filed a dissenting opinion, which was joined by Justices Thomas and Gorsuch.
To discuss the case, we have Jay Schweikert, Policy Analyst with the Cato Institute’s Project on Criminal Justice.
Jun 20 2018
15 mins
Play

Rank #18: Endrew F. v. Douglas County School District - Post-Decision SCOTUScast

Podcast cover
Read more
On March 22, 2017, the Supreme Court decided Endrew F. v. Douglas County School District, a dispute involving the Individuals with Disabilities Education Act (IDEA), which in exchange for federal funding requires that states provide a “free appropriate public education” (FAPE) to disabled children by means of a tailored “individualized education program” (IEP). In its 1982 decision Board of Ed. of Hendrick Hudson Central School Dist., Westchester County. v. Rowley (Rowley), the Supreme Court indicated that the FAPE requirement is satisfied when an IEP is “reasonably calculated to enable the [disabled] child to receive educational benefits.”

Endrew F. is a student with autism who received annual IEPs from the Douglas County School District from preschool through the fourth grade. At that point, however, his parents felt his progress to be stagnating, and when the school district proposed a similar IEP for the fifth grade, Endrew’s parents moved him to a specialized private school where he made significant progress. School district officials thereafter presented Endrew’s parents with a revised IEP, but the parents considered it little better than the previous version. The parents sought reimbursement of private school tuition costs by filing an IDEA complaint with the Colorado Department of Education. Their claim was denied, however, and the denial was affirmed by both a federal district court and the U.S. Court of Appeals for the Tenth Circuit. The Tenth Circuit concluded that under Rowley, the FAPE requirement was satisfied so long as the IEP conferred more than a minimal educational benefit.

By a vote of 8-0, the Supreme Court vacated the judgment of the Tenth Circuit and remanded the case. Writing for a unanimous Court, Chief Justice Roberts indicated that to meet its substantive obligation under the IDEA, a school must offer an IEP “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances,” a more demanding standard than the Tenth Circuit’s de minimis one. The Court then remanded the case for further proceedings under the corrected standard.

To discuss the case, we have Daniel Woodring, principal at Woodring Law Firm.
Oct 03 2017
13 mins
Play

Rank #19: Janus v. American Federation of State, County, and Municipal Employees, Council 31 - Post-Decision SCOTUScast

Podcast cover
Read more
On June 27, 2018, the Supreme Court decided Janus v. American Federation of State, County, and Municipal Employees, Council 31, a case considering the forced subsidizing of unions by public employees, even if they choose not to join the union or strongly disagree with many positions the union takes in collective bargaining.
Under Illinois law, public employees are permitted to unionize; and if a majority of employees in a particular bargaining union vote to unionize, then that union is designated as the exclusive representative of all the employees in collective bargaining, even those members who choose not to join the union. Non-members are required to pay an “agency fee,” which is a percentage of the full union dues and covers union expenses “germane” to the union’s collective bargaining activities, but cannot cover any political or ideological projects sponsored by the union. Mark Janus works at the Illinois Department of Healthcare and Family Services. The employees in his unit are represented by American Federation of State, County, and Municipal Employees, Council 31 (“the union”). Janus did not join the union because he opposes many of its positions, including those taken in collective bargaining, but was required to pay 78.06% of full union dues as an “agency fee”--a fee resulting in a payment of $44.58 per month, and about $535 per year.
Janus and two other state employees joined a lawsuit brought by the Governor of Illinois against the union in federal district court, seeking a declaration that the statutory imposition of agency fees was unconstitutional. The District Court dismissed the Governor for lack of standing, but proceeded to reject the claims of Janus and the other employees on the merits, finding their challenge foreclosed by the U.S. Supreme Court’s 1977 decision in Abood v. Detroit Bd. of Ed. The U.S. Court of Appeals for the Seventh Circuit affirmed, but the Supreme Court granted certiorari to reconsider whether public-sector agency-fee arrangements are constitutional.
By a vote of 5-4, the U.S. Supreme Court reversed the judgment of the Seventh Circuit and remanded the case. In an opinion delivered by Justice Alito, the Court overruled Abood and held that state extraction of agency fees from nonconsenting public-sector employees violates the First Amendment; thus states and public-sector unions may no longer extract agency fees from nonconsenting employees.
Justice Alito’s majority opinion was joined by the Chief Justice and Justices Kennedy, Thomas, and Gorsuch. Justice Sotomayor filed a dissenting opinion. Justice Kagan also filed a dissenting opinion, which was joined by Justices Ginsburg, Breyer, and Sotomayor.
To discuss the case, we have Raymond LaJeunesse, Vice President & Legal Director, National Right to Work Legal Defense Foundation.
Sep 12 2018
23 mins
Play

Rank #20: Ziglar v. Abbasi - Post-Decision SCOTUScast

Podcast cover
Read more
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
10 mins
Play

Similar Podcasts