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, Legal Fellow at the Heritage Foundation.

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 expressed are those of the speakers.

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 are those of the speakers.

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 A. Young, Alston & Bird Professor, Duke Law School As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

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 all other justices except Justice Sotomayor, who dissented. In addition, Justice Kagan filed a concurring opinion that was joined by Justice Breyer.To discuss the case, we have Brian 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 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 expressed are those of the speakers.

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 of an organization receiving federal benefits, the underlying offense itself (codified at 18 U.S.C. § 666(a)(1)(A)), conspiracy to commit wire fraud, actual wire fraud, and conspiracy against civil rights. A jury convicted both defendants on all counts. The U.S. Court of Appeals for the Third Circuit reversed and vacated the civil rights convictions, but affirmed all other judgments of conviction. The Supreme Court subsequently granted certiorari, however, to consider whether a public official can “defraud” the government of its property by advancing a public policy reason for an official decision that was not actually the public official’s subjective reason for making the decision.To discuss the case, we have Erin Sheley, associate professor of law at the University of Oklahoma 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 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 mitigation or impose the particular sentence in a death penalty case. Third, the Court affirmed that a state court conclusion as to the collateral nature of a state appellate proceeding was not subject to dispute by the Court. To discuss the case, we are joined by Oramel H. (O.H.) Skinner, Solicitor General for Arizona.As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

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 in this case to extend Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), and create a damages remedy for a cross-border shooting. As we have made clear in many prior cases, however, the Constitution’s separation of powers requires us to exercise caution before extending Bivens to a new 'context,' and a claim based on a cross-border shooting arises in a context that is markedly new. Unlike any previously recognized Bivens claim, a cross-border shooting claim has foreign relations and national security implications.... Because of the distinctive characteristics of cross-border shooting claims, we refuse to extend Bivens into this new field.... In sum, this case features multiple factors that counsel hesitation about extending Bivens, but they can all be condensed to one concern––respect for the separation of powers." Justice Alito's majority opinion was joined by the Chief Justice and Justices Thomas, Gorsuch, and Kavanaugh. Justice Thomas filed a concurring opinion, joined by Justice Gorsuch. Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan. To discuss the case, we have Peter Thomson, Special Counsel, Stone Pigman Walther Wittmann LLCAs always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

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.