Scotuscast

On May 23, 2022 the Court decided Morgan vs. Sundance. Joining today to discuss the 9-0 decision is Stephen J. Ware, the Frank Edwards Tyler Distinguished Professor of Law at the University of Kansas Law School.

On May 2nd, 2022 the Court decided Shurtleff vs. City of Boston. Joining SCOTUScast once more, this time for post-decision analysis, is Professor Scott Gaylord of Elon University School of Law.

On May 16, 2022 the Court decided Federal Election Commission vs. Ted Cruz for Senate. Listeners may remember our guest today, Professor Bradley A. Smith, the Josiah H. Blackmore II/Shirley M. Nault Professor of Law at Capital University Law School, who joined earlier in the term for the post-argument segment. Today, Professor Smith, a former Chairman of the Federal Election Commission (2004), joins to provide expert analysis on this decision.Holding: Section 304 of the Bipartisan Campaign Reform Act of 2002 — which limits the amount of post-election contributions that may be used to repay a candidate who lends money to his own campaign — unconstitutionally burdens core political speech.Judgment: Affirmed, 6-3, in an opinion by Chief Justice Roberts on May 16, 2022. Justice Kagan filed a dissenting opinion, in which Justices Breyer and Sotomayor joined.

On March 31, the Court decided Badgerow v. Walters, a case which concerned judicial supervision of arbitration. Joining today to discuss the decision and its implications is Jennifer Dickey, Associate Chief Counsel at the U.S. Chamber Litigation Center.Holding: Federal jurisdiction in a petition to compel arbitration under Section 4 of the Federal Arbitration Act is determined by “looking through” the petition to the jurisdictional basis of the “underlying substantive controversy,” Vaden v. Discover Bank, but that approach does not apply to petitions to confirm or vacate arbitral awards under Sections 9 and 10 of the FAA.Judgment: Reversed and remanded, 8-1, in an opinion by Justice Kagan on March 31, 2022. Justice Breyer filed a dissenting opinion.

The issue before the Court in West Virginia v. EPA is whether, when designing rules under Section 111, EPA is limited to identifying “systems of emission reduction” that can be applied to and at the level of an individually regulated facility, or whether there are no limits to EPA’s authority other than the textual commands to consider cost, nonair quality health and environmental impacts, and energy requirements. Federal respondents argue the case is moot and should be dismissed as improvidently granted.Featuring: Speaker: Justin Schwab, Founder, CGCN Law; former Deputy General Counsel, EPA.Moderator: Garrett Kral, Associate Member of the Environmental Law & Property Rights Practice Group’s Executive Committee; former Special Advisor for Oversight, EPA.

On February 23rd, the Court heard arguments in Arizona vs. City and County of San Francisco, California, a case which concerned whether states with interests should be permitted to intervene to defend a rule when the United States ceases to defend. Joining to discuss arguments in the case is Hon. Elizabeth Murrill, Solicitor General in the Louisiana Attorney General’s Office.

On November 10th, the Court heard arguments in City of Austin, Texas v. Reagan National Advertising, a case which concerned whether the Austin city code’s distinction between on-premise signs, which may be digitized, and off-premise signs, which may not, is a facially unconstitutional content-based regulation under Reed v. Town of Gilbert. We are joined by Trevor Burrus, research fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies, for this installment.

On Mar 3, 2022, the Court decided United States v. Zubaydah, a case which concerned whether the 9th circuit erred when it rejected the United States’ assertion of the state secrets privilege based on the court’s own assessment of potential harms to national security, and required discovery to proceed further under 28 U.S.C 1782(a) against former CIA contractors on matters concerning alleged clandestine CIA activities. In a 7-2 opinion authored by Justice Breyer, the Court held that the U.S. Court of Appeals for the 9th Circuit’s judgment that the district court erred in dismissing Zubaydah’s discovery request on the basis of the state secrets privilege is reversed, and the case is remanded with instructions to dismiss Zubaydah’s current discovery application.Joining us today to discuss decision this is Kate Comerford Todd, managing partner at Ellis George Cipollone in Washington, DC. Ms. Todd formerly served as Deputy Counsel to the Office of the President, Chief Counsel for the U.S. Chamber Litigation Center

On March 7, 2022 the Supreme Court decided Wooden v. United States, holding that William Dale Wooden’s ten burglary offenses arising from a single criminal episode did not occur on different “occasions” and thus count as only one prior conviction under the Armed Career Criminal Act. The Court Reversed and remanded, 9-0, in an opinion by Justice Kagan on March 7, 2022. Justice Kagan delivered the opinion of the court, in which Chief Justice Roberts and Justices Breyer, Sotomayor, and Kavanaugh joined, and in which Justices Thomas, Alito, and Barrett joined as to all but Part II-B. Sotomayor filed a concurring opinion. Kavanaugh filed a concurring opinion. Barrett filed an opinion concurring in part and concurring in the judgment, in which Thomas joined. Justice Gorsuch filed an opinion concurring in the judgment, in which Sotomayor joined as to Part II, III, and IV.Joining today to discuss this decision is Vikrant P. Reddy, Senior Research Fellow at the Charles Koch Institute.

On February 24, 2022 the Supreme Court decided Unicolors, Inc v. H&M Hennes & Mauritz, LP. Joining today to discuss this decision is Zvi Rosen, Assistant Professor at SIU Law, former Visiting Scholar and Professorial Lecturer in Law at George Washington University School of Law.

On Feb. 22, 2022 the Court heard arguments in Ysleta del Sur Pueblo vs. Texas, a case which concerned sovereign authority to regulate non-prohibited gaming activities. Joining to discuss this case is Anthony J. Ferate, of Counsel at Spencer Fane LLP.

On January 18, 2022 the Court heard oral argument in Shurtleff v. City of Boston, a case which concerned the flag-flying at Boston city hall. Joining today to discuss this case is Professor Scott Gaylord of Elon University School of Law.

On November 2nd, 2021 the Court heard argument in Houston Community College Sys. v. Wilson, a case which concerned whether the First Amendment restricts the authority of an elected body to issue a censure resolution in response to a member’s speech. Joining today to discuss oral argument is Jordan Pratt, senior counsel at the First Liberty Institute.

On January 11th, 2022 the Court heard arguments in two immigration cases, Johnson v. Arteaga-Martinez and Garland, Attny Gen. V. Gonzalez. Joining today to discuss these arguments in two parts is Ilya Somin, Professor of Law at George Mason’s Antonin Scalia Law School. This episode will begin with coverage of the question and background, and proceed in the second part to focused analysis of oral argument.

On Jan. 18, 2022 the Court heard argument in Cassirer v. Thyssen-Bornemisza Collection Foundation. Joining today to discuss this decision in two parts is Professor Suzanna Sherry, the Herman O. Loewenstein Chair in Law Emerita at Vanderbilt Law School.

On January 19th, the Court heard arguments in Federal Election Commission v. Ted Cruz for Senate. At issue were: (1) Whether appellees have standing to challenge the statutory loan-repayment limit of 52 U.S.C. 30116(j); and (2) whether the loan-repayment limit violates the Free Speech clause of the First Amendment. Joining today to discuss this case is Professor Bradley Smith, the Josiah H. Blackmore II/Shirley M. Nault Professor of Law at Capital University Law School.

The Supreme Court recently issued its decisions in two federal vaccine mandate cases, Biden v Missouri and National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration. Several states and interest groups sought emergency relief on regulations issued by OSHA as well as the Centers for Medicare and Medicaid Services. The OSHA rule mandated large employers to require vaccination or regular testing of their employees. CMS required vaccination of staff at health care facilities participating in Medicare or Medicaid programs. The Court granted a stay of the OSHA rule pending merits review in the Sixth Circuit, but stayed an injunction of the CMS rule allowing it to go into effect.Joining today to discuss these decisions are, in order of appearance: 1) David Dewhirst, Solicitor General, Montana2) Professor Dorit Reiss, James Edgar Hervey '50 Chair of Litigation, UC Hastings Law 3) Professor Ilya Somin, Antonin Scalia Law School, George Mason University

On December 10, 2021, the U.S. Supreme Court decided Whole Woman's Health v. Jackson and dismissed the federal government's suit against Texas in United States v. Texas. The Court held 8-1 in Jackson that plaintiff abortion providers can pursue claims against licensing officials.A pair of distinguished federal-courts scholars join to discuss the cases, the legal issues involved, and the implications going forward. Featuring:Prof. Stephen Sachs, Antonin Scalia Professor of Law, Harvard Law SchoolProf. Howard Wasserman, Professor of Law, Florida International University College of Law

On November 8th, 2021 the Supreme Court heard oral argument in Federal Bureau of Investigation v. Fazaga, a case which concerned whether Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 displaces the state-secrets privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence. Joining today to discuss this case in great detail is Dr. Riddhi Sohan Dasgupta, Counsel at Schaerr | Jaffe LLP. Dr. Dasgupta has served as the Deputy General Counsel of the United States Department of Homeland Security (DHS), Special Counsel of the United States Department of Education (ED), and adjunct faculty at George Mason’s Antonin Scalia Law School.

On December 8th, the Court heard arguments in Carson v. Makin, a case which concerned whether a state violates the religion clauses or equal protection clause by prohibiting students participating in an otherwise generally available student aid program from choosing their aid to attend schools that provide religious, or sectarian, instruction. Joining today to discuss this decision in two parts is Professor Nicole Garnett, The John P. Murphy Foundation Professor of Law at Notre Dame Law School. This episode begins with coverage of the question and background, and proceeds in second part to focused analysis of oral argument.