Scotuscast

On December 10, 2020 the Supreme Court decided Rutledge v. Pharmaceutical Care Management Association. The question presented was whether the Employee Retirement Income Security Act of 1974 (ERISA) pre-empts the State of Arkansas’ Act 900, which regulates the price at which pharmacy benefit managers reimburse pharmacies for the cost of drugs covered by prescription-drug plans. The U.S. Court of Appeals for the Eighth Circuit held that ERISA preemption applied. By a vote of 8-0, the Supreme Court reversed that judgment and remanded the case. Writing for the Court, Justice Sotomayor indicated that Act 900 “has neither an impermissible connection with nor reference to ERISA and is therefore not pre-empted.”Justice Sotomayor’s opinion was joined by all other members of the Court except Justice Barrett, who took no part in the consideration or decision of the case. Justice Thomas filed a concurring opinion.Max Schulman, an Associate at Gibson, Dunn & Crutcher, joins us today to discu

On December 1 2020, the Supreme Court heard oral argument in Cargill v. Doe I. There were two legal questions before the Court. The first was whether the presumption against extraterritorial application of the Alien Tort Statute is displaced by allegations that a U.S. company generally conducted oversight of its foreign operations at its headquarters and made operational and financial decisions there, even though the conduct alleged to violate international law occurred in – and the plaintiffs suffered their injuries in – a foreign country. The second question before the Court was whether a domestic corporation is subject to liability in a private action under the Alien Tort Statute.David Rybicki is Partner at K&L Gates LLP. He joins us today to discuss this case’s oral argument.

On December 10, 2020 the Supreme Court decided the case of Tanzin v. Tanvir. In an 8-0 ruling, the Supreme Court affirmed the judgement of the Second Circuit Court of Appeals, holding that "appropriate relief" under the Religious Freedom Restoration Act (RFRA) includes claims for money damages against government officials in their individual capacities.Stephanie Taub, Senior Counsel at First Liberty, joins us to discuss the ruling and its implications.

On December 2, 2020, the Supreme Court heard oral argument in Edwards v. Vannoy. The question before the court was whether the Supreme Court’s decision in Ramos v. Louisiana applies retroactively to cases on federal collateral review.William S. McClintock is an Associate at King & Spalding LLP. He joins us today to discuss this case’s oral argument.

On November 30, 2020 the Supreme Court heard oral argument in Van Buren v. United States. The question before the court was whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.Orin Kerr is a Professor of Law at UC Berkeley School of Law and he joins us to discuss this case’s oral argument.

On November 30, 2020 the Supreme Court heard oral argument in Trump v. New York. The first legal question before the Court was whether a group of states and local governments have standing under Article III of the Constitution to challenge a July 21, 2020, memorandum by President Donald Trump instructing the secretary of commerce to include in his report on the 2020 census information enabling the president to exclude noncitizens from the base population number for purposes of apportioning seats in the House of Representatives. The second legal question before the court was whether the memorandum is a permissible exercise of the president’s discretion under the provisions of law governing congressional apportionment. Professor John S. Baker joins us today to discuss this case’s oral argument. Professor Baker is Professor Emeritus at Lousiana State University's Paul M. Hebert Law Center.

On November 2, 2020 the Supreme Court decided Taylor v. Riojas, holding that the U.S. Court of Appeals for the Fifth Circuit erred in granting qualified immunity to correctional officers sued by inmate Trent Taylor regarding the conditions of his confinement in a Texas prison.Taylor alleged that the officers knowingly confined him for six days in cells so grossly unsanitary as to violate the Eighth Amendment’s prohibition on cruel and unusual punishment. He contends that the cells were covered in human waste, that he was forced to sleep naked in raw sewage, and that the high risk of contamination prevented him from eating or drinking for nearly four days. The Fifth Circuit rejected Taylor’s challenge, reasoning that the officers were entitled to qualified immunity from suit because it was not “clearly established” by court doctrine that the specific conditions of Taylor’s confinement would have violated the Eighth Amendment.The Supreme Court vacated the Fifth Circuit’s jud

On November 10, 2020, the Supreme Court heard oral argument in Texas v. California. The issues before the court were whether the unconstitutional individual mandate to purchase minimum essential coverage is severable from the remainder of the Patient Protection and Affordable Care Act as well as whether the district court properly declared the ACA invalid in its entirety and unenforceable anywhere. Iyla Somin joins us for this special, extended edition episode of SCOTUScast. Mr. Somin is a Professor of Law at the Antonin Scalia Law School of George Mason University.

On November 4, 2020, the Supreme Court heard oral argument in Fulton v. City of Philadelphia. There were three questions before the court. The first was whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely that the government would allow the same conduct by someone who held different religious views — as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held. The second was whether Employment Division v. Smith should be revisited. The third was whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs.Mark Rienzi joins us today to discuss this case’s oral argument. Mr. Rienzi is President of The Becket Fund for Religious Liberty and Professor of Law and Co-

On November 3, 2020, the Supreme Court heard oral argument in Borden v. United States. The question before the court was whether the “use of force” clause in the Armed Career Criminal Act encompasses crimes with a mens rea of mere recklessness.Joining us to discuss this case’s oral argument is Kent Scheidegger. Mr. Scheidegger is the Legal Director & General Counsel at Criminal Justice Legal Foundation

On November 3, 2020, the Supreme Court heard oral argument in Jones v. Mississippi. The question before the court was whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole. Joining us to discuss this case’s oral argument is Marc Levin. Mr. Levin is the Chief of Policy and Innovation for the Right on Crime initiative at the Texas Public Policy Foundation.

On October 6, 2020, the Supreme Court heard oral arguments for Rutledge v. Pharmaceutical Care Management Association. The issue in this case is whether states have the right to regulate pharmacy benefit managers, or PBM’s. Leslie Rutledge, Arkansas’s Attorney General, has petitioned the court to overturn the United States Court of Appeals for the Eighth District’s prior decision to maintain Arkansas’ statute regulating PBMs’ drug reimbursement rates. Rutledge argues the statute is preempted by the Employee Retirement Income Security Act of 1974. Max Schulman joins us to discuss this case’s oral arguments. Schulman is an associate in the Washington, D.C. office of Gibson, Dunn & Crutcher.

On November 2, 2020, the Supreme Court heard oral arguments in U.S. Fish and Wildlife Service v. Sierra Club. This case addresses the scope of transparency under the Freedom of Information Act’s key “deliberative process” privilege. More specifically, oral argument addressed whether documents drafted as part of a statutorily required interagency consultation process between the U.S. Fish and Wildlife Service and National Marine Fisheries fall under exemption 5 of FOIA. This exemption grants that records that are “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency” are protected from disclosure.Joining us today to discuss this case’s oral argument are Nancie Marzulla and Damien Schiff. Ms. Marzulla is Partner at Marzulla Law, and Mr. Schiff is a Senior Attorney at the Pacific Legal Foundation.

On October 14, 2020, the Supreme Court heard oral arguments regarding Torres v. Madrid. The question before the court was whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, as the U.S. Courts of Appeals for the 8th, 9th and 11th Circuits and the New Mexico Supreme Court hold, or whether physical force must be successful in detaining a suspect to constitute a “seizure,” as the U.S. Court of Appeals for the 10th Circuit and the District of Columbia Court of Appeals hold.Kent Scheidegger joins us to discuss this case’s oral arguments. Scheidegger is Legal Director and General Counsel at the Criminal Justice Legal Foundation

On October 14, 2020, the Supreme Court heard Pereida v. Barr, an immigration case. The question before the court was whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act. More specifically, the Court heard arguments regarding whether Mr. Pereida, who used a false Social Security card to get a job, could legally seek relief from deportation since he was never charged with any specific violation of Section 240A(b)(1)(C) of the Immigration and Nationality Act. Brian Fish joins us today to discuss this case’s oral arguments. Mr. Fish is Special Assistant to the United States Attorney of Baltimore, Maryland.

On October 13, 2020, The Supreme Court heard oral arguments regarding United States v. Collins (consolidated with United States v. Briggs). The question before the court was whether the U.S. Court of Appeals for the Armed Forces erred in concluding – contrary to its own longstanding precedent – that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.Arthur Rizer and Richard Sala join us to discuss this case’s oral arguments. Rizer is the Director of the Criminal Justice & Civil Liberties program and Resident Senior Fellow at the R Street Institute. Sala is an Assistant Professor of Law at the Vermont Law School.

The Supreme Court heard oral arguments for Google LLC v. Oracle America Inc. on October 7, 2020. Two questions were before the court: the first was whether copyright protection extends to a software interface; the second was whether, as a jury found, Google's use of a software interface in the context of creating a new computer program constitutes fair use. Google reused roughly 11,000 lines of “declaring” code written by Oracle, but rewrote or purchased all other code that provided android’s functionality. Oral arguments addressed whether the 11,000 lines of “declaring” code are protected by copyright, and if so, whether Google’s use of them was “fair.” Michael Risch joins us to discuss this case’s oral arguments. Risch is Vice Dean and Professor of Law at Villanova University Charles Widger School of Law and author of an amicus brief in support of Google.

On October 6, 2020, the Supreme Court heard oral arguments regarding Tanzin v. Tanvir, a case involving the Religious Freedom Restoration Act of 1993, commonly referred to as RFRA. The issue in this case is whether RFRA permits suits seeking money damages against individual federal employees. Stephanie Taub joins us to discuss this case’s oral arguments.

On October 5, 2020, the Supreme Court heard oral arguments regarding Carney v. Adams, a First Amendment case involving a longstanding Delaware state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the state’s three highest courts. The leftover seats are reserved for the “other major party”, in effect barring members of minor parties and politically unaffiliated persons from joining the state’s three highest courts. Michael Dimino joins us to discuss this case's oral arguments.

On June 30, 2020 the Supreme Court released its decision in United States Patent and Trademark Office v. Booking.com B.V.. In an 8-1 decision, the Court upheld the ruling of the lower court, which found that “Booking.com” is not a generic term, and is thus eligible for trademark protection. Justice Ginsburg wrote the majority opinion for the Court, writing that a website styled “generic.com” does not qualify it for federal trademark protection if the term has meaning to consumers; however, because “Booking.com” does not necessarily signify to consumers an online hotel reservation service, it is therefore not a generic term, and qualifies for protection. Justice Sotomayor authored a concurring opinion, and Justice Breyer dissented. Joining us today to discuss this case and its implications is Zvi Rosen, Visiting Scholar and Professorial Lecturer in Law at George Washington University’s School of Law