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Author: The Federalist Society

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SCOTUScast is a project of the Federalist Society for Law & Public Policy Studies. This audio broadcast series provides expert commentary on U.S. Supreme Court cases as they are argued and issued. The Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. We hope these broadcasts, like all of our programming, will serve to stimulate discussion and further exchange regarding important current legal issues. View our entire SCOTUScast archive at
204 Episodes
Nieves v. Bartlett -- Post-Argument
On November 26, 2018, the Supreme Court heard argument in Nieves v. Bartlett, a case considering the merit of retaliatory arrest claims in the presence of probable cause for arrest.In 2014, Russell Bartlett was arrested by two police officers, Sergeant Nieves and Trooper Weight, during an outdoor party that was part of the annual “Arctic Man” festival held in Alaska’s Hoodoo Mountains. Bartlett, who appeared intoxicated, approached Trooper Weight, who had been speaking to a minor regarding suspected underage drinking, and loudly demanded that Weight stop. When Trooper Weight pushed Bartlett back to create space between the two men, Nieves, who had observed the contact, ran over and a struggle ensued. The officers subdued and arrested Bartlett, who was later released from detention without injury. Although the state ultimately declined to prosecute Bartlett on charges of disorderly conduct and resisting arrest, the prosecutor indicated his belief in the existence of probable cause for that arrest.Bartlett filed suit against the officers in federal district court, claiming false arrest, excessive force, malicious prosecution, and retaliatory arrest. The district court granted summary judgment to Sergeant Nieves and Trooper Weight on qualified immunity grounds, but the U.S. Court of Appeals reversed that judgment as to the retaliatory arrest claim and remanded the case. Under circuit precedent, the Court concluded, “an individual has a right to be free from retaliatory police action, even if probable cause existed for the action.” The Supreme Court granted the officers’ subsequent petition for certiorari, however, to address whether probable cause defeats a First Amendment retaliatory-arrest claim under the civil rights statute 42 U.S.C. § 1983. To discuss the case, we have Lisa Soronen, Executive Director of the State and Local Legal Center.
Nutraceutical Corp. v. Lambert - Post-Argument SCOTUScast
On November 27, 2018, the Supreme Court heard argument in Nutraceutical Corp. v. Lambert, a case considering whether Federal Rule of Civil Procedure 23(f), which imposes a 14-day deadline for appealing from a grant or denial of class-action certification, can be equitably tolled. Troy Lambert bought a dietary supplement that claimed to be an aphrodisiac containing sexual performance-enhancing herbs. He thereafter brought a class action in federal district court against the drug’s manufacturer, Nutraceutical Corp., alleging violations of U.S. Food and Drug Administration requirements and various California consumer protection statutes. The district court initially certified the class action, but following reassignment of the case to a new judge and discovery raising concerns about Lambert’s classwide damages model, Nutraceutical moved to decertify the class and the district court granted the motion on February 20, 2015.On March 2, 10 days after the class had been decertified, Lambert informed the court that he intended to file a motion for reconsideration. The district court instructed him to file the motion within 10 days, which was 20 days in total from the original class desertification. Lambert moved for reconsideration on March 12 with further evidence to support his full refund damages model. The district court denied his motion in June. Fourteen days later, Lambert filed a petition under Federal Rule of Civil Procedure 23(f) for permission to appeal the district court’s orders granting decertification and denying reconsideration to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit conditionally granted the petition but instructed the parties to address whether it was timely.Under Rule 23(f), a petition for permission to appeal must be filed with the circuit clerk “within 14 days” after the order “granting or denying class-action certification” was entered. Although Lambert’s petition came within 14 days of denial of his motion for reconsideration, it was filed months after the actual order granting decertification. The Ninth Circuit held that Lambert’s petition was nevertheless timely. Rule 23(f) is not jurisdictional, the court determined, and its deadline should equitably tolled by a timely motion for reconsideration such as Lambert’s. Reaching the merits, the Ninth Circuit then reversed and remanded, holding that the district court had abused its discretion in decertifying the class. The U.S. Supreme Court, however, granted certiorari to address whether the Ninth Circuit erred when it held that equitable exceptions apply to mandatory claim-processing rules—such as Federal Rule of Civil Procedure 23(f)—and can excuse a party’s failure to file timely within the 14-day deadline, in conflict with the decisions of 7 other Circuit Courts of Appeals.To the discuss the case, we have Michael Morley, Assistant Professor of Law at Florida State University College of Law.
Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc - Post-Argument SCOTUScast
On December 4, 2018, the Supreme Court heard argument in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc. This case arose out of a dispute over the validity of a patent covering a product used to reduce the likelihood of chemotherapy-induced nausea and vomiting. At issue in this case is whether agreements entered into by Helsinn more than one year prior to filing for patent protection put the invention “on sale” and thus would invalidate the patent. Although the meaning of “on sale” in the Patent Act was long believed to be settled, the 2011 America Invents Act (AIA) made changes to the statutory provisions that include the “on sale” bar. The question for the Supreme Court is whether these changes to the statute change the previous understanding of the term “on sale.”In April 2001, Helsinn entered into two agreements with MGI Pharma. Although these agreements were announced in a press release, specific information about the products, like dosing formulations, were omitted. In 2003, Helsinn filed a provisional patent application covering the product. Three patents arose from this provisional patent application prior to the enactment of the AIA; however, one patent was subject to the new provisions of the AIA.In 2011, Teva sought FDA approval to make a generic version of the patented product. Helsinn sued Teva for patent infringement based on this ANDA filing. Teva argued that the patent was invalid because Helsinn’s agreements with MGI put the product “on sale” before the relevant date. The district court rejected Teva’s argument, concluding that the AIA had changed the meaning of “on sale” to require the invention be made public by the sale. Because the dosing information was not provided in the press release regarding the agreements, the district court concluded the agreements did not make the invention public and there was no “on sale” bar. The Federal Circuit reversed, holding that inventions are made available to the public whenever there is a commercial offer for sale and that the sale is public even when the details of the invention are not disclosed to the public by the sale. Thus, the “on sale” bar applied to Helsinn’s patent. The U.S. Supreme Court then granted certiorari to address whether under the AIA, an inventor’s sale of an invention to a third party that is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention.To the discuss the case, we have Kristen Osenga, Professor of Law at University of Richmond School of Law.
Timbs v. Indiana - Post-Argument SCOTUScast
On November 28, 2018, the Supreme Court heard argument in Timbs v. Indiana, a case involving the Eighth Amendment’s excessive fines clause, the Fourteenth Amendment, and the concept of “incorporation” against the states.In May 2013, Tyson Timbs was apprehended en route to a controlled drug purchase, having previously purchased about $400 worth of heroin from undercover police officers. He ultimately pled guilty to felony counts of drug dealing and conspiracy to commit theft, and was sentenced to six years of imprisonment (with five suspended to probation). Timbs also had to pay roughly $1,200 in police costs and related fees. The State of Indiana then sought forfeiture of Timbs’ Land Rover, which he had used $42,000 of his late father’s life insurance proceeds to purchase, but had driven to buy and transport heroin. Lower courts ordered the vehicle released to Timbs, concluding that forfeiture of the Land Rover would impose an excessive fine in violation of the U.S. Constitution’s Eighth Amendment. The Supreme Court of Indiana, however, reinstated the forfeiture on the grounds that the U.S. Supreme Court had never incorporated the excessive fine clause against the states via the Fourteenth Amendment.The U.S. Supreme Court thereafter granted certiorari to address that issue: whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.To the discuss the case, we have Christopher Green, Associate Professor of Law and H.L.A. Hart Scholar in Law and Philosophy at University of Mississippi School of Law.
Stokeling v. United States, United States v. Stitt, and United States v. Sims - Post-Argument SCOTUScast
On October 9, 2018, the Supreme Court heard arguments in Stokeling v. United States and the consolidated cases United States v. Stitt and United States v. Sims, all disputes that involve the federal Armed Career Criminal Act (ACCA).ACCA imposes a 15-year mandatory minimum prison sentence on any federal firearms offender who has three or more convictions for a “violent” felony or serious drug offense. In determining whether any given predicate felony conviction qualifies as “violent,” federal courts apply a “categorical” approach that looks only to the elements of the predicate offense and not the underlying facts. If the elements include “the use, attempted use, or threatened use of physical force against the person or property of another,” the conviction qualifies as a violent felony.In Stokeling v. United States, the U.S. Court of Appeals for the Eleventh Circuit held that Stokeling’s Florida conviction for “robbery by sudden snatching” categorically qualified as a violent felony. The Supreme Court granted certiorari to consider whether that analysis holds when the state offense includes as an element the common law requirement of overcoming “victim resistance,” and state appellate courts have required only slight force to satisfy that element.In United States v. Stitt, consolidated with United States v. Sims, both defendants persuaded federal courts of appeals--the Sixth Circuit for Stitt and the Eighth Circuit for Sims--that their sentences were improperly enhanced because predicate burglary convictions under the laws of Tennessee and Arkansas, respectively, involved elements categorically broader than the generic burglary encompassed by ACCA. ACCA deems burglary a violent felony, but takes a generic view of burglary that may be narrower than some state burglary laws. The Supreme Court consolidated the two cases and granted certiorari to consider whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” for purposes of ACCA.To the discuss the case, we have Luke Milligan, Professor of Law at the University of Louisville Brandeis School of Law.
Jam v. International Finance Corporation
On October 31, 2018, the Supreme Court heard argument in Jam v. International Finance Corporation, a case involving the scope of the International Organizations Immunities Act.The International Finance Group (IFC) is an international organization which provides loans to projects in developing countries that do not have the necessary private capital for projects. Under the International Organizations Immunities Act (IOIA), the IFC is an organization designated to “enjoy the same immunity from suit … as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.” The IFC funded the construction of the Tata Mundra Power Plant in Gujarat, India, with a proviso that the plant had to follow an Environmental and Social Action Plan to protect the surrounding community; failure to follow the Plan would result in a loss of financial support. The power plant did not follow the Plan, but the IFC did not revoke funding. Members of the surrounding community sued the IFC in district court, claiming that the IFC is responsible for their injuries because it continued funding the project despite the plant’s clear failure to follow the Environmental and Social Action Plan. The district court dismissed the complaint on the grounds that the IFC was immune from suit. The petitioners appealed to the US Court of Appeals for the DC Circuit, which agreed with the district court. The US Supreme Court then granted certiorari to address whether the International Organizations Immunities Act—which affords international organizations the “same immunity” from suit that foreign governments have, 22 U.S.C. § 288a(b)—confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11.To the discuss the case, we have Mike Ramsey, Professor of Law at University of San Diego School of Law.
Nielsen v. Preap - Post-Argument SCOTUScast
On October 10, 2018, the Supreme Court heard argument in Nielsen v. Preap, a case involving the exemption of a criminal alien from mandatory detention without bond due to a delay in arrest after release from criminal custody. As codified, § 1226(c) of the Immigration and Naturalization Act (“INA”) provides for the mandatory detention of criminal aliens “when [they are] released” from criminal custody, and for the holding of these aliens without bond. The three plaintiffs in this case are lawful permanent residents who have committed crimes that could lead to their removal from the United States but after serving their criminal sentence were released and returned to their families and communities in the United States; however, years later, each was arrested by immigration authorities and detained without bond hearings under § 1226(c). The plaintiffs filed a class action petition for habeas relief in district court arguing that since they were not detained “when...released” from criminal custody, they are not subject to mandatory detention under § 1226(c). The district court granted their motion for class certification, issued a preliminary injunction requiring the government to provide all class members with bond hearings under § 1226(a), and concluded that under § 1226(c) aliens can be held without bound only if taken into immigration custody immediately upon release from criminal custody, not if there is a lengthy gap after their release. The government appealed to the US Court of Appeals for the Ninth Circuit, arguing that the statute “does not suggest that immigration officials lose authority if they delay.” The Ninth Circuit affirmed the district court’s class certification order and preliminary injunction, and held that the mandatory detention provision of § 1226(c) applies only to those criminal aliens detained promptly after their release from criminal custody, not to those detained long after. The US Supreme Court granted certiorari to determine whether a criminal alien becomes exempt from mandatory detention under § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately. To the discuss the case, we have Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation. As always, the Federalist Society takes no position on particular legal or public policy issues. All opinions are those of the speaker.
Janus v. American Federation of State, County, and Municipal Employees, Council 31 - Post-Decision SCOTUScast
On June 27, 2018, the Supreme Court decided Janus v. American Federation of State, County, and Municipal Employees, Council 31, a case considering the forced subsidizing of unions by public employees, even if they choose not to join the union or strongly disagree with many positions the union takes in collective bargaining. Under Illinois law, public employees are permitted to unionize; and if a majority of employees in a particular bargaining union vote to unionize, then that union is designated as the exclusive representative of all the employees in collective bargaining, even those members who choose not to join the union. Non-members are required to pay an “agency fee,” which is a percentage of the full union dues and covers union expenses “germane” to the union’s collective bargaining activities, but cannot cover any political or ideological projects sponsored by the union. Mark Janus works at the Illinois Department of Healthcare and Family Services. The employees in his unit are represented by American Federation of State, County, and Municipal Employees, Council 31 (“the union”). Janus did not join the union because he opposes many of its positions, including those taken in collective bargaining, but was required to pay 78.06% of full union dues as an “agency fee”--a fee resulting in a payment of $44.58 per month, and about $535 per year. Janus and two other state employees joined a lawsuit brought by the Governor of Illinois against the union in federal district court, seeking a declaration that the statutory imposition of agency fees was unconstitutional. The District Court dismissed the Governor for lack of standing, but proceeded to reject the claims of Janus and the other employees on the merits, finding their challenge foreclosed by the U.S. Supreme Court’s 1977 decision in Abood v. Detroit Bd. of Ed. The U.S. Court of Appeals for the Seventh Circuit affirmed, but the Supreme Court granted certiorari to reconsider whether public-sector agency-fee arrangements are constitutional. By a vote of 5-4, the U.S. Supreme Court reversed the judgment of the Seventh Circuit and remanded the case. In an opinion delivered by Justice Alito, the Court overruled Abood and held that state extraction of agency fees from nonconsenting public-sector employees violates the First Amendment; thus states and public-sector unions may no longer extract agency fees from nonconsenting employees. Justice Alito’s majority opinion was joined by the Chief Justice and Justices Kennedy, Thomas, and Gorsuch. Justice Sotomayor filed a dissenting opinion. Justice Kagan also filed a dissenting opinion, which was joined by Justices Ginsburg, Breyer, and Sotomayor. To discuss the case, we have Raymond LaJeunesse, Vice President & Legal Director, National Right to Work Legal Defense Foundation.
Lozman v. City of Riviera Beach, FL - Post-Decision SCOTUScast
On June 18, 2018, the Supreme Court decided Lozman v. City of Riviera Beach, FL, a case involving a claim of retaliatory arrest in violation of the First Amendment. Fane Lozman moved to Riviera Beach, FL in 2006, where he lived on a floating home in the Riviera Beach Marina--a part of the city designated for redevelopment under the City’s new redevelopment plan that would use eminent domain to revitalize the waterfront. After hearing news of the plan, Lozman became an “outspoken critic,” and filed suit against the City in June 2006 after a special City Council emergency meeting to push through the redevelopment plan before the Governor of Florida signed a bill into law that would prohibit the use of eminent domain for private development. Later at a public City Council meeting in November 2006, Lozman began to discuss the arrest of a former county official during the public comments portion of the meeting. He was interrupted by a member of the City Council, who, after exchanging words with Lozman, called a city police officer to dismiss Lozman from the podium. Lozman refused to leave the podium without finishing his comments, the police officer warned him that he would be arrested if he did not comply, and, upon the continuance of his comments, Lozman was arrested for disorderly conduct and resisting arrest without violence (charges later dismissed). In 2008, Lozman filed suit in federal district court against the City of Riviera Beach, claiming that his arrest had constituted unlawful retaliation by the City due to Lozman’s earlier opposition to the redevelopment plan. The jury found that the arrest had been supported by probable cause, which the District Court concluded must defeat Lozman’s First Amendment claim of retaliatory arrest. The U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment, but the Supreme Court then granted certiorari to address whether the existence of probable cause defeats a First Amendment claim for retaliatory arrest.By a vote of 8-1, the Supreme Court vacated the judgment of the Eleventh Circuit and remanded the case. In an opinion delivered by Justice Kennedy, the Court held that the existence of probable cause for Lozman’s arrest for disrupting a city council meeting did not bar his First Amendment retaliatory arrest claim under the circumstances of this case. Justice Kennedy’s majority opinion was joined by the Chief Justice and Justices Ginsburg, Breyer, Alito, Sotomayor, Kagan, and Gorsuch. Justice Thomas filed a dissenting opinion. To discuss the case, we have Lisa Soronen, Executive Director of the State & Local Legal Center.
Washington v. United States - Post-Decision SCOTUScast
On June 11, 2018, the Supreme Court decided Washington v. United States, a case considering off-reservation fishing rights of multiple Native American Tribes in the State of Washington. The 1854-1855 Stevens Treaties were a series of treaties between several Native American Tribes and the State of Washington. As part of these treaties, the Tribes relinquished land, watersheds, and offshore waters adjacent to a particular area, “Case Area,” in exchange for guaranteed off-reservation fishing rights. In 2001, twenty-one tribes and the United States complained in federal district court that the State had been building and maintaining culverts that impeded the transit of mature and juvenile salmon between the sea and their spawning grounds. In 2007, the district court issued an injunction requiring the State to correct these culverts, and the U.S. Court of Appeals for the Ninth Circuit affirmed.The Supreme Court granted certiorari to address (1) whether a treaty “right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens” guaranteed “that the number of fish would always be sufficient to provide a ‘moderate living’ to the tribes”; (2) whether the district court erred in dismissing the state's equitable defenses against the federal government where the federal government signed these treaties in the 1850s, for decades told the state to design culverts a particular way, and then filed suit in 2001 claiming that the culvert design it provided violates the treaties it signed; and (3) whether the district court’s injunction violates federalism and comity principles by requiring Washington to replace hundreds of culverts, at a cost of several billion dollars, when many of the replacements will have no impact on salmon, and plaintiffs showed no clear connection between culvert replacement and tribal fisheries.In a per curiam opinion, an equally divided Supreme Court affirmed the judgment of the Ninth Circuit. To discuss the case, we have Lance Sorenson, Olin-Darling Fellow in Constitutional Law at Stanford Law School.
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