Scotuscast

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,

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 exp

In its very first case on copyright, the Supreme Court under Chief Justice John Marshall was faced with the question of whether its own reports are protected by copyright, and decided in the negative. This term, the Supreme Court is called upon to clarify the scope of that decision, which it has not further clarified since two cases heard in 1888. The question presented in Georgia v. Public.Resource.Org Inc. is whether the annotations to the Official Code of Georgia are "government edicts" and thus not within the scope of copyright, even though they lack the force of law. This case also raises implicit questions as to other quasi-governmental publications of which the copyright status is often surprisingly amorphous.To discuss the case, we have Zvi Rosen, Visiting Scholar and Professorial Lecturer in Law at George Washington University School of Law and Sy Damle, Partner, Latham & Watkins LLP.As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed a

On March 23, 2020, the U.S. Supreme Court released a decision in Allen v. Cooper, which is the latest development in a decades-long series of Congressional enactments and Supreme Court rulings over whether and how Congress can abrogate the sovereign immunity of States from intellectual property infringement suits. This all-star panel will discuss the Court’s most recent decision in the context of the evolution of the Court’s sovereign immunity jurisprudence, the policy concerns of Congress and intellectual property owners, and where we might go from here.To discuss the case, in this special panel episode, we have:Prof. Steven Tepp, Professorial Lecturer in Law, George Washington Law, and President and Founder of Sentinal Worldwide Prof. John T. Cross, Grosscurth Professor of Intellectual Property Law and Technology Transfer, University of Louisville Brandeis School of LawProf. Ralph Oman, Pravel, Hewitt, Kimball and Kreiger Professorial Lecturer in Intellectual Property and Patent LawProf. Ernest

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 a

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 exp

On Jan. 14, 2020, the U.S. Supreme Court heard argument in Kelly v. United States, a case asking whether a public official “defraud[s]” the government of its property by advancing a “public policy reason” for an official decision that is not that official’s subjective “real reason” for making the decision.In 2013, in a New Jersey scandal known as “Bridgegate,” petitioners William E. Baroni, Jr. and Bridget Anne Kelly manufactured a grid-lock traffic jam in Fort Lee, New Jersey after the mayor refused to endorse then-Governor Chris Christie’s re-election campaign. Under the guise of a “traffic study” the two limited Fort Lee motorists’ access to the George Washington Bridge--the busiest bridge in the world--over the period of four days coinciding with the local school district’s first week of school. Baroni and Kelly were indicted in 2015 for conspiracy to obtain by fraud, knowingly convert, or intentionally misapply property o

On Tuesday, in a 5-4 decision in McKinney v. Arizona, the Supreme Court of the United States issued a landmark death penalty and criminal procedure opinion about the division between direct and collateral review and the jury requirements that the Court had previously explicated in the Apprendi line of cases, including Ring v. Arizona and Hurst v. Florida. At issue was an Arizona Supreme Court opinion that conducted an appellate reweighing of aggravation and mitigation after a remand from the En Banc Ninth Circuit for a supposed error in treatment of certain mitigation on direct appeal. Writing for the majority, Justice Kavanaugh clarified or confirmed several important criminal and death penalty procedure issues. First, the majority affirmed the ongoing validity of Clemons v. Mississippi and the availability of appellate reweighing of aggravation and mitigation. Second, the Court confirmed that a jury need only find the existence of an aggravating factor, and need not conduct the weighing of aggravation and m

The case of Hernandez v. Mesa arises from a 2010 confrontation on the U.S.-Mexican border in which U.S. Border Patrol agent Jesus Mesa shot and killed Sergio Hernandez, a teenage Mexican national. Although the FBI apparently cleared Mesa of wrongdoing, and Hernandez was not standing on American soil at the time he was shot, the Hernandez family filed suit against Mesa and the federal government based on the Supreme Court's decision in Bivens v. Six Unknown Named Agents, which held that a federal agent can be found liable in damages under the Fourth Amendment for committing an unconstitutional search and seizure.The central issue before the Supreme Court was whether the Hernandez family can recover damages in a Bivens action for the killing of their son in violation of the Fourth and Fifth Amendments when there is no other available remedy under federal law. By a vote of 5-4, the judgment of the U.S. Court of Appeals for the Fifth Circuit was affirmed. Per Justice Alito's opinion for the Court: "We are asked i

On March 4, 2020, the Supreme Court oral argument in consolidated cases June Medical Services v. Russo and Russo v. June Medical Services (formerly June Medical Services v. Gee and Gee v. June Medical Services), which involve the constitutionality of Louisiana's law requiring physicians who perform abortions to have admitting privileges at a local hospital and whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations, such as Louisiana's admitting privileges law, on behalf of their patients.To discuss the case, we have Steven Aden, Chief Legal Officer & General Counsel at Americans United for LifeAs always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Supreme Court will decide the constitutionality of the CFPB, an agency long criticized not just by the business community but also constitutional scholars who see major problems a single-director agency seemingly unaccountable to the president or anyone else. The lawsuit was brought by a law firm that assists in resolving personal-debt issues, among other legal work that puts it in the crosshairs of those who want greater regulation of consumer-facing financial services. The CFPB is the most independent of independent agencies, with power to make rules, enforce them, adjudicate violations in its own administrative hearings, and punish wrongdoers. It doesn’t need Congress to approve its budget, because its funding requests are met by another agency insulated from political control: the Federal Reserve. Even CFPB supporters concede that the CFPB structure and authority is unique. To discuss the case, we have Ilya Shapiro, Director, Rober

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.

On Dec. 9, 2019, the U.S. Supreme Court heard argument in Thryv, Inc. v. Click-to-Call Technologies, LP, a case involving a dispute over certain appeal and time restrictions applicable to “inter partes review” (IPR) proceedings before the Patent Trial and Appeal Board (the Board) of the U.S. Patent and Trademark Office.In 2013, Ingenio--a predecessor entity to petitioner Thryv, Inc.--initiated IPR proceedings to challenge the validity of a patent held by Click-to-Call Technologies, LP (CTC). CTC countered that the IPR was time-barred under the one-year limit of 35 U.S.C. § 315(b), because a complaint alleging infringement of that patent had been served on Ingenio back in 2001, well over one year before the IPR request. The Board rejected CTC’s argument, reasoning that the time bar did not apply because the complaint in question had been voluntarily dismissed, and was to be treated as if non-existent. Proceeding with IPR, the Board then ruled various claims of the disputed patent to be

On Dec 11, 2019 the Supreme Court decided Peter v. NantKwest Inc., a case considering whether a party opting to bring a challenge in federal district court to an adverse decision of the U.S. Patent and Trademark Office’s (PTO) Patent Trial and Appeal Board (PTAB) must pay the PTO’s resulting attorney’s fees. When a patent applicant is rejected by the PTO, and the PTAB affirms that decision on appeal, the aggrieved applicant may either pursue further (but relatively constrained) review in the U.S. Court of Appeals for the Federal Circuit--or the applicant may file a more expansive challenge in federal district court. The latter option is authorized by 35 U.S.C. § 145, but the statute also provides that “[a]ll the expenses of the proceedings shall be paid by the applicant.”Here, NantKwest challenged an adverse PTAB decision in federal district court, but lost. After the judgment was affirmed by the Federal Circuit, the PTO sought reimbursement of its expenses from NantKwest

On Dec. 11, 2019, the U.S. Supreme Court heard argument in Monasky v. Taglieri, a case involving the standard of appellate review applicable to determinations of “habitual residence” under the Hague Convention on the Civil Aspects of International Child Abduction, as well as the conditions under which habitual residence is established for an infant.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. Petitioner Michelle Monasky, an American, gave birth to her daughter A.M.T. in Italy. Monasky’s husband Domenico Taglieri, who is the father, is Italian. Alleging that Taglieri had become physically abusive, Monasky took the newborn A.M.T. to a dom

On Dec. 4, 2019, the U.S. Supreme Court heard argument in Intel Corp. Investment Policy Committee v. Sulyma, a case asking what degree of knowledge of a possible violation is necessary to trigger the three-year statute of limitations provided in the Employee Retirement Income Security Act (ERISA).Respondent Christopher Sulyma worked for Intel Corporation from 2010-12, and during that time participated in retirement plans governed by ERISA. In 2015, Sulyma brought suit against Intel’s investment policy committee under various provisions of ERISA, alleging that the committee had invested imprudently and failed to make certain disclosures. Intel moved to dismiss the complaint based on ERISA’s statute of limitations, which provides that actions like Sulyma’s may not be commenced more than “three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation.” The district court found that Sulyma had actual knowledge of the alleged violations m

On Nov. 4, 2019, the U.S. Supreme Court heard argument in 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 count

In Atlantic Richfield Co. v. Christian, the Supreme Court will determine whether the Comprehensive Environmental Response, Compensation, and Liability Act preempts state common law claims for restoration damages for pollution also addressed by an EPA-directed cleanup plan. In this case, a Montana copper smelter polluted its neighbors’ properties for decades but has also spent $450 million to remediate this pollution under a plan negotiated with EPA. Believing Montana state law entitles them to more extensive restoration than the EPA plan provides, neighboring property owners sued Atlantic Richfield for trespass and nuisance, seeking restoration damages and other relief. Jonathan Wood and Corbin Barthold join us to discuss the oral argument in this case and its implications for CERCLA and property rights.In this special, extended analysis episode, we have two guests. The first voice you will hear is Corbin Barthold, Senior Litigation Counsel at Washington Legal Foundation followed by Jonathan Wood, Senio

On Oct. 16, 2019, the U.S. Supreme Court heard argument in Kansas v. Garcia, a case involving a dispute over whether the federal Immigration Reform and Control Act (IRCA) precludes states from using any information contained in a federal Form I-9, (which includes common information such as name, date of birth, and social security number) to prosecute the person with a state crime.Respondents Ramiro Garcia, Donaldo Morales, and Guadalupe Ochoa-Lara were convicted of identity theft (and/or making a false information) by the state of Kansas, for using social security numbers that were not theirs on federally required employment or housing-related paperwork. Respondents argued that their convictions were invalid on the grounds that IRCA preempts the use of such information in a state prosecution. The Kansas Supreme Court agreed and reversed the convictions, holding that IRCA expressly preempted state prosecutions that use information contained in a federal I-9 form. That decision conflicted with those of variou

On Dec. 2, 2019, the U.S. Supreme Court heard argument 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 Yo