On June 25th, 2021 the Supreme Court decided Yellen v. Confederated Tribes of Chehalis Reservation, a case which concerned whether Alaska native regional and village corporations established pursuant to the Alaska Native Claims Settlement Act “Indian Tribes” for purposes of the CARES Act. Justice Sonia Sotomayor authored the 5-4 majority opinion of the Court, which held that ANCs are “Indian tribe[s]” under ISDA and thus eligible for funding under Title V of the CARES Act. Justice Neil Gorsuch authored a dissenting opinion, joined by Justices Clarence Thomas and Elena Kagan, arguing that the plain language and construction of the ISDA suggest that ANCs are not “Indian tribes,” supported by analogy to another statute with “nearly identical language in remarkably similar contexts,” and that the majority overlooked the critical statutory word “recognized.”With me today to discuss this case are Anthony Ferate, Of Counsel at Spencer Fan LLP, and Jennifer Weddle, Co-Chair of Greenberg Traurig’s American Indian Law practice.

SCOTUScast

Yellen v. Confederated Tribes of the Chehalis Reservation - Post-Decision SCOTUScast

On June 23rd, 2021 the Supreme Court decided Mahanoy Area School Dist. v. B. L., a case which concerned whether the First Amendment prohibits public school officials from regulating off-campus student speech. Justice Breyer authored the majority opinion in the 8-1 decision, holding that “while public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome the student’s interest in free expression in this case.” Justice Thomas offered the lone dissent in the decision. Joining me today to discuss this decision is Michael R. Dimino, Professor of Law at Widener University Commonwealth Law School.

Mahanoy Area School District v. B.L. - Post-Decision SCOTUScast

On June 23rd, 2021 the Supreme Court decided Cedar Point Nursery v. Hassid, a case which concerned whether a California regulation granting labor organizations a “right to take access” to an agricultural employer’s property to solicit support for unionization constitutes a per se physical taking under the Fifth Amendment. Chief Justice John Roberts authored the 6-3 majority opinion of the Court, holding that California’s access regulation constitutes a per se physical taking. Joining me today to discuss this decision in Wen Fa, attorney at the Pacific Legal Foundation.

Cedar Point Nursery v. Hassid - Post-Decision SCOTUScast

On June 23rd, 2021 the Supreme Court decided Collins v. Yellen, a case which concerned the constitutionality of the structure of the Federal Housing Finance Agency. Joining me today to discuss this decision is Jason Levine, Partner at Alston & Bird, and Jeffrey McCoy, Attorney at the Pacific Legal Foundation.

Collins v. Yellen - Post-Decision SCOTUScast

On June 23rd, 2021 the Supreme Court decided Lange v. California, a case which concerned whether the exigent circumstances exception to the 4th Amendment’s warrant requirement apply when police are pursuing a suspect whom they believe committed a misdemeanor. In a unanimous decision, the Court held for Lange that "pursuit of a fleeing misdemeanor suspect does not categorically qualify as an exigent circumstance justifying a warrantless entry into a home." Justice Elena Kagan authored the majority opinion of the court. I am joined today by Clark Neily, Vice President for Criminal Justice at the Cato Institute, Larry H. James, Managing Partner at Crabbe Brown and James, and Vikrant P. Reddy, Senior Research Fellow at the Charles Koch Institute.

Lange v. California - Post-Decision SCOTUScast

On June 21st, 2021 the Supreme Court decided National Collegiate Athletic Association v. Alson, a case which concerned whether the NCAA’s prohibition on compensation for college athletes violated federal antitrust law. Writing for a unanimous Court, Justice Gorsuch affirmed the ruling of the lower court, holding that the NCAA’s rules restricting certain education-related benefits for student-athletes violate federal antitrust laws under a “rule of reason” analysis. Joining me today to discuss this decision is Michael Murray, former Principal Deputy Assistant Attorney General in the Department of Justice.

National Collegiate Athletic Association v. Alston - Post-Decision SCOTUScast

On June 21st, 2021 the Supreme Court decided United States v. Arthrex, Inc, a case which concerned the constitutionality of the Patent Trial and Appeal Board’s authority to appoint Administrative Patent Judges. Writing for the 5-4 majority, Chief Justice Roberts concluded that the unreviewable authority wielded by APJs during inter partes review is incompatible with their appointment by the Secretary of Commerce to an inferior office, thereby vacating the lower court's judgement and remanding for further review.Three experts join us today to discuss the ruling. They are Professor Kristen Osenga, Austen E. Owen Research Scholar & Professor of Law at the University of Richmond School of Law, Professor Dmitry Karshtedt, Associate Professor of Law at the George Washington Law School, and Professor Gregory Dolin, Associate Professor of Law and Co-Director at the Center for medicine and Law at the University of Baltimore School of Law.

United States v. Arthrex, Inc. - Post-Decision SCOTUScast

On June 17th, 2021 the Supreme Court decided California v. Texas, a case which concerned whether Texas (along with over a dozen States and two individuals) had standing to challenge the individual mandate of the Affordable Care Act (ACA). Writing for the majority in the 7-2 decision, Justice Breyer noted that “plaintiffs do not have standing to challenge the minimum essential coverage provision because they have not shown a past or future injury fairly traceable to defendants’ conduct enforcing the specific statutory provision they attack as unconstitutional.” Justice Thomas filed a concurring opinion, Justice Alito filed a dissenting opinion in which Justice Gorsuch joined. Two experts join us to discuss the ruling and offer their differing views on the constitutional issues involved, including standing and the wider question of severability. They are Professor Jonathan Adler, the Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law, and Mario Loyola, Senior Fellow at the Competitive Enterprise Institute.

California v. Texas - Post-Decision SCOTUScast

On June 17th, 2021 the Supreme Court unanimously decided Fulton v. City of Philadelphia for petitioners. The issue before the court 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. Chief Justice John Roberts authored the majority opinion of the Court, which held that the refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment. Joining us today to discuss this decision is Prof. Mark L. Rienzi, President of the Becket Fund for Religious Liberty and Professor of Law at Catholic University.

Fulton v. City of Philadelphia - Post-Decision SCOTUScast

On June 17, 2021 the Supreme Court issued its 8-1 decision in Nestle USA, Inc. V. Doe et al and the consolidated case of Cargill, Inc. v. Doe I. In this case, the Court considered the question of whether an aiding and abetting claim against a domestic corporation brought under the Alien Tort Statute can overcome the exterritoriality bar where the claim based is on allegations of general corporate activity in the United States and where the plaintiffs cannot trace the alleged harms, which occurred abroad at the hands of unidentified foreign actors, to that activity.Discussing this decision today are Julian Ku, Senior Associate Dean for Academic Affairs, Faculty Director of International Programs, and Maurice A. Deane Distinguished Professor of Constitutional Law, Maurice A. Deane School of Law at Hofstra University, Professor William S. Dodge, the John D. Ayer Chair in Business Law and MLK Jr. Professor of Law at the UC Davis School of Law and Ilya Shapiro, Vice President and Director at the Robert A. Levy Center for Constitutional Studies at the Cato Institute.

Nestle USA, Inc. v. Doe - Post-Decision SCOTUScast

On June 3, 2021 the Supreme Court decided Van Buren v. United States. The issue 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.In a 6-3 opinion authored by Justice Barrett, the Court reversed the ruling of the Court of Appeals for the Eleventh Circuit and remanded the case. The Supreme Court held, “An individual ‘exceeds authorized access’ under the Computer Fraud and Abuse Act of 1986, 18 U.S.C. § 1030(a)(2), when he accesses a computer with authorization but then obtains information located in particular areas of the computer — such as files, folders or databases — that are off-limits to him..”Justice Thomas filed a dissenting opinion, in which Chief Justice Roberts and Justice Alito joined.Orin Kerr, Professor of Law at UC Berkeley Law, joins us today to discuss this decision and its implications.

Van Buren v. United States - Post-Decision SCOTUScast

On June 14th, 2021, the Supreme Court decided Terry v. U.S. The issue before the Court was whether pre-August 3rd, 2010, crack offenders sentenced under 21 U.S.C 841(b)(1)(c) have a “covered offense” under Section 404 of the First Step Act. Justice Thomas delivered the opinion of the Court, in which Justices Roberts, Breyer, Alito, Kagan, Gorsuch, Kavanaugh, and Barrett joined. We are joined today by Vikrant P. Reddy, Senior Research Fellow at the Charles Koch Institute.

Terry v. United States - Post-Decision SCOTUScast

On May 24, 2021 the Supreme Court decided United States v. Palomar-Santiago. The issue was whether a defendant who was removed from the United States is automatically entitled to a defense of invalid removal where the crime underlying his removal is no longer a qualifying removal offense within his circuit.In a 9-0 opinion authored by Justice Sotomayor, the Court reversed the ruling of the Court of Appeals for the Ninth Circuit and remanded the case. The Supreme Court held, “Each of 8 U.S.C. § 1326(d)’s statutory requirements for bringing a collateral attack on a prior deportation order is mandatory.”Brian Fish, Special Assistant to the United States Attorney in Baltimore, MD, joins us today to discuss this decision and its implications.

United States v. Palomar-Santiago - Post-Decision SCOTUScast

On June 10th, 2021, the Supreme Court decided Borden v. United States. The issue before the Court was whether the “use of force” clause in the Armed Career Criminal Act encompasses crimes with an intent requirement of mere recklessness. Justice Elena Kagan authored the four-justice plurality opinion in which Breyer, Sotomayor, and Gorsuch joined, reversing the judgement of the Court of Appeals for the 6th Circuit, concluding that, quote, “a criminal offense with a mens rea of recklessness does not qualify as a “violent felony” under the ACCA’s elements clause.” Justice Thomas filed an opinion concurring in the judgement. Justice Kavanaugh filed a dissenting opinion, in which Roberts, Alito, and Barrett joined. Joining us today to discuss this decision is Kent Scheidegger, Legal Director & General Counsel at the Criminal Justice Legal Foundation, and author of over 150 briefs in cases in the Supreme Court.

Borden v. United States - Post-Decision SCOTUScast

On June 1, 2021 the Supreme Court decided United States v. Cooley. The issue was whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search the respondent, Joshua James Cooley, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law.In a 9-0 opinion authored by Justice Breyer, the Court vacated the ruling of the Court of Appeals for the Ninth Circuit and remanded. The Supreme Court held, “A tribal police officer has authority to detain temporarily and to search a non-Native American traveling on a public right-of-way running through a reservation for potential violations of state or federal law.”Justice Alito filed a concurring opinion. Anthony Ferate, Of Counsel at Spencer Fane LLP, joins us today to discuss the Court’s decision and its implications.

United States v. Cooley - Post-Decision SCOTUScast

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 http://www.federalistsociety.org/SCOTUScast

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