SCOTUScast

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

On May 4, 2020, the U.S. Supreme Court heard argument in United States Patent and Trademark Office v. Booking.com B.V., a case presenting the question whether the addition by an online business of a generic top-level domain (“.com”) to an otherwise generic term can create a protectable trademark.In 2011 and 2012, Booking.com sought trademark protection for its web address name, “Booking.com”--but the U.S. Patent and Trademark Office (PTO) rejected the application. “Booking” was either generic and not protectable, the PTO stated, or else a descriptive mark to which the addition of “.com” was insufficient to demonstrate the “secondary meaning” necessary for federal protection of a descriptive mark. Booking.com filed a civil action in federal district court to appeal the PTO rejection and prevailed: the district court held that “Booking.com” as a whole was a descriptive mark that had acquired secondary meaning; that is, it was sufficiently distinctive to establish a mental association in the mind of the relevant public between the proposed mark and the source of the product or service. The PTO in turn appealed, but a divided panel of the U.S. Court of Appeals for the Fourth Circuit affirmed the judgment of the district court. The U.S. Supreme Court thereafter granted the PTO’s cert petition to address whether--given that generic terms may not be federally registered as trademarks--the addition by an online business of a generic top-level domain (“.com”) to an otherwise generic term can create a protectable trademark.To discuss the case, we have Art Gollwitzer, partner at Michael Best & Friedrich LLP and Zvi Rosen, Visiting Scholar and Professorial Lecturer in Law at George Washington University School of Law. As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

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

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

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

On April 23, 2020, in a 6-3 decision, the Supreme Court decided County of Maui, Hawai’i v. Hawai’i Wildlife Fund and vacated and remanded the case. The Court held that the Clean Water Act, which forbids “any addition” of any pollutant from “any point source” to “navigable waters” without the appropriate Environmental Protection Agency permit, requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.Under the federal Clean Water Act (CWA), someone seeking to discharge a pollutant from a “point source,” such as a pipe or well, into navigable water must first obtain a permit via the National Pollutant Discharge Elimination System program (NPDES). The County of Maui, Hawai’i (the County), owns and operates four wells at a wastewater treatment plant that processes several million gallons of sewage per day. Treated wastewater from the plant is injected into groundwater via these wells, and some ultimately enter the Pacific Ocean via submarine seeps.The 6-3 opinion was given by Justice Breyer on April 23, 2020. Justice Kavanaugh filed a concurring opinion. Justice Thomas filed a dissenting opinion, in which Justice Gorsuch joined. Justice Alito filed a dissenting opinion.To discuss the case, we have Glenn Roper, attorney at the Pacific Legal Foundation.As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On April 23, 2020, in a 5-4 decision, the Supreme Court decided Barton v. Barr, a case involving a dispute over whether, for the purposes of the “stop-time rule,” a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] ... inadmissible”. The stop-time rule affects the discretion afforded the U.S. Attorney General to cancel the removal from the United States of a lawful permanent resident who has resided in the U.S. continuously for 7 years. Under the stop-time rule, the requisite continuous residence terminates once the alien commits any of a certain number of offenses that render the alien inadmissible to (or removable from) the United States under federal law. Thus, committing a listed offense may cause an alien to fall short of the continuous 7-year residence requirement and thereby become ineligible for cancellation of removal.Andre Martello Barton, after receiving lawful permanent resident status, was convicted in 1996 on three counts of aggravated assault, one count of criminal damage to property, and one count of firearm possession during commission of a felony, all in violation of state law. In 2007 and 2008, he was also convicted of several state law drug offenses. The federal government then initiated proceedings to remove Barton based on his various convictions. He conceded removability on the basis of his controlled substance and gun possession offenses but applied for cancellation of removal based on continuous residence. The government argued that Barton’s 1996 convictions triggered the stop-time rule, thereby disqualifying him for cancellation of removal. The Immigration Judge ruled in favor of the government and the Board of Immigration Appeals affirmed. Barton then petitioned for relief from the U.S. Court of Appeals for the Eleventh Circuit, which rejected his argument that the stop-time rule only applies to aliens seeking admission to the United States, and therefore denied his petition.In a 5-4 vote, the Supreme Court affirmed, holding that eligibility for cancellation of removal of a lawful permanent resident who commits a serious crime during the initial seven years of residence need not be one of the offenses of removal.The opinion was written by Justice Kavanaugh on April 23, 2020. Justice Sotomayor filed a dissenting opinion, in which Justices Ginsburg, Breyer, and Kagan joined.To discuss the case, we have Amy Moore, Professor of Law at Belmont University College of Law.As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On April 20, 2020, the Supreme Court released its decision in Thryv, Inc. v. Click-To-Call Technologies, LP holding that the Patent Office decision to hear an inter partes review (“IPR”) challenge is not subject to judicial review on time-bar grounds. The majority found that ruling otherwise would “unwind the agency’s merits decision” and “operate to save bad patent claims.”To discuss the case we have Daniel L. Geyser, Chair, Supreme Court and Appellate Practice, Geyser, P.C.As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On October 7, 2019, the Supreme Court heard oral arguments in Ramos v. Louisiana.In Ramos, Evangelisto Ramos was convicted of second-degree murder by the vote of 10 of 12 jurors. Challenging his conviction, Ramos argued that Louisiana’s statutory scheme permitting non-unanimous jury verdicts in non-capital felony cases violated his right to equal protection under the Fourteenth Amendment to the U.S. Constitution. Relying on its precedent, the Louisiana Supreme Court rejected Ramos’ argument. The U.S. Supreme Court subsequently granted certiorari to consider whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous jury verdict (in criminal cases) against the states.In a vote of 6-3, the court reversed. Justice Gorsuch delivered the opinion of the court with respect to Parts I, II–A, III, and IV–B–1, in which Justices Ginsburg, Breyer, Sotomayor and Kavanaugh joined; an opinion with respect to Parts II–B, 4–B–2, and 5, in which Justices Ginsburg, Breyer and Sotomayor joined; and an opinion with respect to Part 4–A, in which Justices Ginsburg and Breyer joined. Justice Sotomayor filed an opinion concurring as to all but Part 4–A. Justice Kavanaugh filed an opinion concurring in part. Justice Thomas filed an opinion concurring in the judgment. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts joined, and in which Justice Kagan joined as to all but Part III–D.To discuss the case, we have John C. Richter, Partner, Special Matters and Government Investigations, King & Spalding LLP.

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