Podcast appearances and mentions of Elena Kagan

Our show opens with a huge TDS inspired mistake by former FBI Director James Comey. The idea that he has no idea what he was conveying by putting out an image of 86 47 on his social media is ludicrous. Beyond the stupidity of it, this action is actually against the law. Speaking of breaking the law, word on the street is Rep. McIver (D-NJ) is going to be formally charged today for her actions at the ICE detention facility. This is the only way to rein in the out of control Leftists and bureaucrats that have taken hold inside the beltway of Washington, D.C. The SCOTUS is hearing arguments as to whether or not inferior district court judges can issue national injunctions? First we get a brainless Ketanji Jackson Brown. Unfortunately, her fellow liberal justice, Elena Kagan spoke against such a notion in 2022. Then Justice Clarence Thomas brought some much needed sanity to the discussion. Sebastian Gorka wrecked a journalist with Politico over their love of MS-13 gang members. Then former National Security Advisor Jake Sullivan gets put on the spot over the ongoing revelations that everyone knew Joe Biden was cognitively impaired. We learn that the Qatar jet discussion began under Biden, but the press doesn't seem interested in bringing us that bit of information. And, while most are doing nothing in Congress, Rep, Tim Burchett (R-TN) is introducing several single-subject bills to start to codify the Trump agenda. I wish I could believe it would be going anywhere. Please take a moment to rate and review the show and then share the episode on social media. You can find me on Facebook, X, Instagram, GETTR,  TRUTH Social and YouTube by searching for The Alan Sanders Show. And, consider becoming a sponsor of the show by visiting my Patreon page!!

Trump is continuing to press his losing hand with the United States Supreme Court, and has filed his 12th phony “emergency” application to convince the Supreme Court that it when it called all Venezuelans “scum” and “dirtbags” it was only kidding before deciding to end their protective status and deport them. Michael Popok explains why filing this particular emergency application that Justice Kagan considers first may backfire for the Trump Administration and its Homeland Secretary Kristi Noem. Get 35% OFF on all orders above $139 @MixTiles with code: LEGALAF at https://mixtiles.com/LEGALAF #mixtilespod Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af MissTrial: https://meidasnews.com/tag/miss-trial The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Coalition of the Sane: https://meidasnews.com/tag/coalition-of-the-sane Learn more about your ad choices. Visit megaphone.fm/adchoices

Segment 1: VA Secretary Reverses Anti-Chaplain Policy Dr. Chaps reports on a major win for religious liberty in the military: the Secretary of Veterans Affairs has changed a controversial policy that had punished chaplains for preaching biblical truth. Now, chaplains can once again share their faith freely during services without fear of discipline. Segment 2: British Prime Minister Acknowledges Biological Reality In a rare moment of clarity, the British Prime Minister declares that men are not women under British law. Dr. Chaps examines the political and cultural implications of this statement, as well as the backlash from activists who want to blur gender distinctions. Segment 3: Justice Kagan Signals Support for Parental Opt-Out Rights Even liberal Supreme Court Justice Elena Kagan is now indicating that parents should have the right to opt their children out of LGBTQ+ curriculum that contradicts their religious beliefs. Dr. Chaps covers what this could mean for future religious freedom cases at the highest court. Get free alerts at http://PrayInJesusName.org © 2025, Chaplain Gordon James Klingenschmitt, PhD. Airs on NRB TV, Direct TV Ch.378, Roku, AppleTV, Amazon FireTV, AndroidTV, GoogleTV, Smart TV, iTunes and www.PrayInJesusName.org

The Christian Outlook – April 26, 2025

Supreme Court justices from across the ideological spectrum appeared ready to side with a religious group seeking an unemployment tax exemption, in the first of three church-state disputes on tap in coming weeks. "I thought it was pretty fundamental that we don't treat some religions better than other religions," Justice Elena Kagan said. "And we certainly don't do it based on the content of the religious doctrine that those religions preach." Cases and Controversies hosts Kimberly Robinson and Lydia Wheeler break down arguments in Catholic Charities Bureau v. Wisconsin Labor & Indus., and take a look of some of the court's recent opinions. Do you have feedback on this episode of Cases and Controversies? Give us a call and leave a voicemail at 703-341-3690.

For Part 3b of this deep dive we continue the Loper Bright Enterprises v. Raimondo (2024) decision that overruled Chevron (1984). We continue with with the Democrat's dissent written by Justice Kagan defending Chevron. We into the first few pages of Roman numeral I, to the top of page 9 of the Slip Opinion 603 U.S. _____ (2024) (Kagan's dissent), which we will continue to cover next time. Donate a gift to keep the podcast going on Venmo at-sign no space TheRepublicanProfessor or https://buymeacoffee.com/lucasj.mather Warmly, Lucas J. Mather, Ph.D. The Republican Professor Podcast The Republican Professor Newsletter on Substack https://therepublicanprofessor.substack.com/ https://www.therepublicanprofessor.com/podcast/ https://www.therepublicanprofessor.com/articles/ YouTube channel: https://www.youtube.com/@TheRepublicanProfessor Facebook: https://www.facebook.com/TheRepublicanProfessor Twitter: @RepublicanProf Instagram: @the_republican_professor

For Part 3 of this deep dive we begin the Loper Bright Enterprises v. Raimondo (2024) decision that overruled Chevron (1984). We begin with the Democrat's dissent written by Justice Kagan defending Chevron. We get up to Roman numeral I, which we will cover next time. Donate a gift to keep the podcast going on Venmo at-sign no space TheRepublicanProfessor or https://buymeacoffee.com/lucasj.mather Warmly, Lucas J. Mather, Ph.D. The Republican Professor Podcast The Republican Professor Newsletter on Substack https://therepublicanprofessor.substack.com/ https://www.therepublicanprofessor.com/podcast/ https://www.therepublicanprofessor.com/articles/ YouTube channel: https://www.youtube.com/@TheRepublicanProfessor Facebook: https://www.facebook.com/TheRepublicanProfessor Twitter: @RepublicanProf Instagram: @the_republican_professor

In this case, the court considered this issue: Does the Clean Water Act allow the Environmental Protection Agency (or an authorized state) to impose generic prohibitions in National Pollutant Discharge Elimination System permits that subject permit-holders to enforcement for violating water quality standards without identifying specific limits to which their discharges must conform?The case was decided on March 4, 2025.The Supreme Court held that the Clean Water Act does not authorize the EPA to include “end-result” provisions in wastewater discharge permits. Justice Samuel Alito authored the 5-4 majority opinion of the Court.First, while rejecting San Francisco's broader argument that all limitations must be “effluent limitations,” the Court focused on §1311(b)(1)(C)'s authorization of “any more stringent limitation” necessary to meet water quality standards. The terms “limitation,” “implement,” and “meet” in this provision require the EPA to specify concrete actions permittees must follow, not merely mandate end results without guidance. A proper “limitation” is a “restriction imposed from without,” not a directive that forces permittees to determine compliance measures themselves.Second, Congress deliberately abandoned the pre-1972 backward-looking approach that had directly penalized polluters for water quality violations. The CWA's “permit shield” provision, which protects compliant permittees from penalties, would be undermined if end-result requirements could expose permittees to massive penalties despite following all specified steps. Additionally, the EPA's interpretation offered no solution for fairly allocating responsibility among multiple dischargers affecting the same body of water. Determining necessary compliance steps is the EPA's responsibility, and Congress has provided the agency with sufficient tools to make these determinations without resorting to end-result requirements.Justice Amy Coney Barrett authored a dissenting opinion, in which Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson joined.The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you. 

In this case, the court considered this issue: Does an award of the “defendant's profits” under the Lanham Act allow a court to require the defendant to disgorge profits earned by legally separate, non-party corporate affiliates?The case was decided on February 26, 2025.The Supreme Court held that the Lanham Act limits recovery of profits in trademark infringement cases to those earned by the named defendant, not its separately incorporated affiliates. Justice Elena Kagan authored the unanimous opinion of the Court.The text of the Lanham Act authorizes recovery of the “defendant's profits,” which refers only to profits of parties named in the lawsuit. This interpretation aligns with fundamental corporate law principles that treat separately incorporated organizations as distinct legal entities with separate rights and obligations, even when they share common ownership. While exceptions exist through corporate veil-piercing doctrines, Dewberry Engineers never pursued this legal pathway. Courts may not, as the lower courts here did, disregard corporate separateness and treat a party and its non-party affiliates as “a single corporate entity” when calculating the profit award.Justice Sonia Sotomayor authored a concurring opinion.The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you. 

In the unanimous decision of Wisconsin Bell, Inc. v. United States ex rel. Heath, the U.S. Supreme Court addressed the applicability of the False Claims Act (FCA) to reimbursement requests made under the E-Rate program, a federal initiative subsidizing internet and telecommunications services for schools and libraries. Justice Kagan delivered the opinion of the Court, holding that such reimbursement requests qualify as "claims" under the FCA because the government provides a portion of the funds disbursed by the program.

Today, we cover a South Asian Students Association collaboration event at Coffee Club, Elena Kagan's speech at Alumni Day, and a tribute to Maggie, a retiring service dog. ***https://www.dailyprincetonian.com/article/2025/02/princeton-news-alumni-day-supreme-court-justice-elena-kagan-woodrow-wilson-award-david-card-james-madison-medal

In this case, the court considered this issue: Can a plaintiff whose state-court lawsuit has been removed by the defendants to federal court seek to have the case sent back to state court by amending the complaint to omit all references to federal law? The case was decided on January 15, 2025. The Supreme Court held that when a plaintiff amends her complaint to delete the federal-law claims that enabled removal to federal court, leaving only state-law claims behind, the federal court loses supplemental jurisdiction over the state claims, and the case must be remanded to state court. Justice Elena Kagan authored the unanimous opinion of the Court. Federal jurisdiction is based on the operative complaint, which means that when a plaintiff amends their complaint, courts look to that amended version to determine jurisdiction. Federal courts can exercise supplemental jurisdiction over state law claims when they are part of the same case as federal claims. However, this supplemental jurisdiction flows from the existence of federal jurisdiction; when federal claims are eliminated, there is no longer any basis for supplemental jurisdiction over the state law claims. This principle applies equally to cases that were originally filed in federal court and those that were removed from state court, as the supplemental jurisdiction statute (28 U-S-C § 1367) makes no distinction between the two situations. When Wullschleger amended her complaint to remove all federal claims after removal, the federal court lost its basis for federal question jurisdiction. Without any federal claims remaining, the court also lost supplemental jurisdiction over the state law claims. Therefore, the entire case had to be remanded to state court. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you. 

In this case, the court considered this issue: Do Florida S.B. 7072's content-moderation restrictions comply with the First Amendment, and do the law's individualized-explanation requirements comply with the First Amendment? The case was decided on July 1, 2024. The Supreme Court held that The judgments are vacated, and the cases are remanded, because neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to the Florida and Texas laws regulating large internet platforms. Justice Elena Kagan authored the majority opinion of the Court. Under precedents like Miami Herald v Tornillo, Pacific Gas & Electric Co. v Public Utilities Commission, Turner Broadcasting v FCC, and Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston, when a private entity engages in expressive activity, including curating others' speech, government interference with that activity implicates the First Amendment. Specifically, the First Amendment protects entities engaged in expressive activities, including compiling and curating others' speech, from being forced to accommodate messages they prefer to exclude. This protection applies even when the compiler includes most items and excludes only a few. The government cannot justify interfering with a private speaker's editorial choices merely by claiming an interest in improving or balancing the marketplace of ideas. These principles likely apply to the content moderation practices of social media platforms like Facebook's News Feed, indicating that state laws regulating these practices may face significant First Amendment hurdles. However, this analysis may not apply to all of the laws' applications, so it is important for courts to conduct a thorough examination of the laws' full scope and their constitutional and unconstitutional applications in a proper facial challenge analysis. Texas's regulation of social media platforms' content moderation policies aims to alter the speech displayed on these platforms, reflecting the state's disapproval of the platforms' current content selection and moderation practices. However, under the First Amendment, Texas cannot impose its preferences on how private entities curate and present speech, as this would amount to government control over the expression of ideas. Justice Amy Coney Barrett joined the majority opinion in full and authored a separate concurrence. Justice Ketanji Brown Jackson joined the majority opinion in part and authored a separate concurrence. Justice Clarence Thomas authored an opinion concurring in the judgment. Justice Samuel Alito authored an opinion concurring in the judgment, in which Justices Clarence Thomas and Neil Gorsuch joined. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you. 

In this case, the court considered this issue: Does a plaintiff's claim under the Administrative Procedure Act “first accrue” under 28 U-S-C § 2401(a) when an agency issues a rule, or when the rule first causes harm to the plaintiff? The case was decided on July 1, 2024. The Supreme Court held that an Administrative Procedures Act claim does not accrue for purposes of 28 U-S-C §2401(a) until the plaintiff is injured by final agency action. Justice Amy Coney Barrett authored the 6-3 majority opinion of the Court. The text of 28 U-S-C §2401(a) states that a civil action against the United States must be filed "within six years after the right of action first accrues." The Court interpreted this language according to its traditional meaning in the context of statutes of limitations, concluding that a right of action "accrues" when the plaintiff has a "complete and present cause of action"—that is, when the plaintiff has the right to file suit and obtain relief. For an Administrative Procedures Act claim, this requires both final agency action (as specified in 5 U-S-C § 704) and an injury to the plaintiff (as required by 5 U-S-C § 702). The Court rejected arguments that APA claims should be treated differently from other civil actions against the government, emphasizing that § 2401(a) uses standard accrual language that had a well-settled meaning when it was enacted in 1948. The Court also distinguished § 2401(a) from other statutes that explicitly start the clock at the time of final agency action, noting that Congress chose different language for §2401(a). By interpreting "accrues" consistently with its traditional meaning, the Court concluded that an APA claim does not accrue until the plaintiff has both experienced an injury and the agency action causing that injury has become final. Justice Brett Kavanaugh joined the majority opinion in full and wrote a separate concurrence. Justice Ketanji Brown Jackson dissented and was joined by Justices Sonia Sotomayor and Elena Kagan. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe.

In this case, the court considered these issues: 1. Does the Magnuson-Stevens Act authorize the National Marine Fisheries Service to promulgate a rule that would require industry to pay for at-sea monitoring programs? 2. Should the Court overrule Chevron v Natural Resources Defense Council or at least clarify whether statutory silence on controversial powers creates an ambiguity requiring deference to the agency? The case was decided on June 28, 2024. The Supreme Court held that the Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous. Chevron U-S-A Inc. v Natural Resources Defense Council, Inc. is overruled. Chief Justice John Roberts authored the majority opinion of the Court (which also decided the consolidated case, Relentless, Inc. v Department of Commerce). The Administrative Procedure Act (APA) of 1946 requires courts to "decide all relevant questions of law" when reviewing agency actions. This means courts should use their own judgment to interpret laws, not defer to agencies' interpretations. The Chevron doctrine, established in the 1984 case Chevron U-S-A v Natural Resources Defense Council, Inc., contradicts this principle. Chevron required courts to defer to agency interpretations of ambiguous statutes if those interpretations were reasonable. Chevron was based on a flawed assumption that Congress intends to delegate interpretive authority to agencies whenever a law is ambiguous. This assumption doesn't reflect reality and goes against the traditional role of courts. Chevron has been difficult to apply consistently and has led to confusion in lower courts. It has also been gradually limited by subsequent Supreme Court decisions. Thus, Chevron should be overruled because it contradicts the APA, is based on faulty reasoning, has proven unworkable in practice, and hasn't created the kind of settled expectations that would justify keeping it in place. However, this decision does not necessarily overturn the specific outcomes of past cases that used Chevron. Those outcomes would need to be challenged separately. Justices Clarence Thomas and Neil Gorsuch each filed concurring opinions. Justice Elena Kagan authored a dissenting opinion, in which Justice Sonia Sotomayor joined, and Justice Ketanji Brown Jackson joined as to No. 22-1219. Justice Jackson took no part in the consideration or decision of No. 22-451. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.  --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

Experienced analysts like former Transgender Legal Defense and Education Fund legal director David Brown (interviewed by David Hunt) are praising progressive U.S. Supreme Court Justices Ketanji Brown-Jackson, Sonia Sotomayor and Elena Kagan for their questioning of Tennessee Solicitor General Matthew Rice about his state's ban on pediatric gender-affirming healthcare, but the trans man of the hour is the American Civil Liberties Union's Chase Strangio, who became the first transgender attorney to argue a case before the nation's top court. And in NewsWrap: the United Kingdom's temporary ban on puberty blockers for transgender young people will remain in force “indefinitely,” U.K. military veterans who were booted from the armed forces for being queer are now eligible for compensation, the U.S. Supreme Court declines to hear a challenge to a Wisconsin school district's pro-trans policies, Montana's Supreme Court backs a temporary injunction blocking the enforcement of a state ban on pediatric gender-affirming healthcare, the opening of Warsaw's QueerMuzeum far exceeded organizers' expectations, and more international LGBTQ+ news reported this week by Michael LeBeau and Ava Davis (produced by Brian DeShazor). All this on the December 16, 2024 edition of This Way Out! Join our family of listener-donors today at http://thiswayout.org/donate/ NOTE TO RADIO STATIONS: The weekly program uploaded to SoundCloud will soon include a pitch for This Way Out/Overnight Productions (Inc.). Stations can download a pitch-free version from radio4all.net or Pacifica's AudioPort.Org. For more information, contact Brian@ThisWayOut.org.

In this case, the court considered this issue: Does 18 U-S-C § 1512(c), which prohibits obstruction of congressional inquiries and investigations, include acts unrelated to investigations and evidence? The case was decided on June 28, 2024. The Supreme Court held that to prove a violation of 18 U-S-C §1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so. Chief Justice John Roberts authored the 6-3 majority opinion of the Court. The Court focused on interpreting the scope of 18 U-S-C §1512(c)(2), particularly how it relates to §1512(c)(1). Applying the canons of statutory interpretation, particularly noscitur a sociis and ejusdem generis, the “otherwise” clause in (c)(2) should be read as limited by the specific conduct described in (c)(1). If (c)(2) were as broad as the government claimed, it would render (c)(1) and many other specific obstruction statutes superfluous, which goes against principles of statutory interpretation. Next, as to the historical context of the statute, it was enacted as part of the Sarbanes-Oxley Act to address specific issues like document shredding in the Enron scandal. An overly broad interpretation of (c)(2) would criminalize a wide range of prosaic conduct and give prosecutors too much discretion. Moreover, the Court traditionally avoids broad interpretations of obstruction statutes that would create “coverall” provisions. Finally, the Court concluded that (c)(2) should be interpreted more narrowly, in light of (c)(1), to primarily cover acts that impair the integrity or availability of evidence for use in an official proceeding, rather than all forms of obstruction. This interpretation better respects Congress's role in defining crimes and setting penalties and avoids potential constitutional issues arising from an overly broad criminal statute. Justice Ketanji Brown Jackson joined the majority opinion in full and wrote a separate concurrence. Justice Amy Coney Barrett authored a dissenting opinion, in which Justices Sonia Sotomayor and Elena Kagan joined. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.  --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

In this case, the court considered this issue: Does the Bankruptcy Code authorize a court to approve, as part of a plan of reorganization under Chapter 11 of the Bankruptcy Code, a release that extinguishes claims held by non-debtors against non-debtor third parties, without the claimants' consent? The case was decided on June 27, 2024. The Supreme Court held that the Bankruptcy Code does not authorize a release and injunction that, as part of a plan of reorganization under Chapter 11, effectively seek to discharge claims against a nondebtor without the consent of affected claimants. Justice Neil Gorsuch authored the 5-4 majority opinion of the Court. Applying the ejusdem generis canon of statutory interpretation to Section 1123(b)(6), which is a catchall provision allowing "any other appropriate provision" in a bankruptcy plan, the Court reasoned that this provision should be read in light of the specific provisions that precede it, all of which concern the debtor's rights and responsibilities. Therefore, Section 1123(b)(6) cannot be fairly read to grant the radically different power to discharge debts of non-debtors without affected claimants' consent. The broader context of the Bankruptcy Code further supports this conclusion. Discharges are generally reserved for debtors who place their assets in the bankruptcy estate, and even then, certain types of claims (like fraud or willful injury) cannot be discharged. The Sacklers, as non-debtors, seek greater protection than the Code typically allows for actual debtors, without meeting the Code's usual requirements. Congress has only explicitly authorized third-party releases in asbestos-related bankruptcies, suggesting that such releases are not generally permissible in other contexts. Therefore, Section 1123(b)(6) does not authorize the nonconsensual release of claims against the Sacklers, who are non-debtors in Purdue Pharma's bankruptcy case. Justice Brett Kavanaugh authored a dissenting opinion, in which Chief Justice John Roberts and Justices Sonia Sotomayor and Elena Kagan joined. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you. --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

In this case, the court considered this issue: Does the federal Emergency Medical Treatment and Labor Act preempt an Idaho law that criminalizes most abortions in that state?    The case was decided on June 27, 2024.  The Supreme Court dismissed the writ of certiorari as improvidently granted and vacated its earlier stay of the district court's preliminary injunction against Idaho's abortion law. Justice Elena Kagan authored a concurring opinion that was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. Justice Kagan opined that EMTALA requires hospitals to provide abortions in certain health emergencies that Idaho's law prohibits, creating a clear conflict where federal law preempts state law. Justice Amy Coney Barrett authored a concurring opinion that was joined by Chief Justice John Roberts and Justice Brett Kavanaugh. She explained why she believes the Court should dismiss the case and vacate the stay, arguing that the dispute has narrowed significantly since the Court initially granted certiorari, making it inappropriate for immediate Supreme Court resolution. Justice Jackson concurred in part with the Court's decision to vacate the stay and lift the injunction, agreeing with Justice Kagan's analysis that EMTALA preempts Idaho's law. However, she dissented from the Court's decision to dismiss the case as improvidently granted, arguing that the conflict between state and federal law remains significant and that the Court should have resolved the preemption issue now rather than delaying a decision. Justice Samuel Alito authored a dissenting opinion, joined by Justices Clarence Thomas and Neil Gorsuch. Justice Alito argued that the Court should have decided the statutory interpretation question and rejected the government's novel interpretation of EMTALA rather than dismissing the case and allowing the injunction against Idaho's law to take effect. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.  --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

In this case, the court considered this issue: should the Court stay the EPA's federal emissions reduction rule, the Good Neighbor Plan, and are the emissions controls imposed by the rule reasonable regardless of the number of states subject to the rule?    The case was decided on June 27, 2024. The Supreme Court held that the EPA's enforcement of the Federal Implementation Plan against the applicant States is stayed pending disposition of the applicants' petition for review in the D-C Circuit and any petition for writ of certiorari, timely sought. Justice Neil Gorsuch authored the 5-4 majority opinion of the Court. There is a four-factor test for deciding whether to grant a stay: likelihood of success on the merits, irreparable harm, balance of equities, and public interest. The Court focused primarily on the first factor—likelihood of success on the merits—and concluded that the applicants (states and industry groups challenging the EPA's rule) were likely to succeed in arguing that the EPA's Federal Implementation Plan (FIP) was “arbitrary” or “capricious” under the Clean Air Act.  The EPA failed to adequately explain why its emissions reduction requirements would remain appropriate if fewer states were covered by the plan than originally intended. Commenters had raised concerns during the rulemaking process about what would happen if some states dropped out of the plan, but the EPA did not sufficiently address these concerns. While the EPA did add a “severability” provision saying the rule would continue to apply even if some states dropped out, this did not actually address the underlying issue of whether the emissions requirements would still be justified with fewer states. Because the EPA likely “ignored an important aspect of the problem” by not explaining why its emissions reduction requirements would remain appropriate with fewer covered states, the applicants were likely to succeed in having the rule "reversed" as arbitrary and capricious, justifying the stay pending further review. Justice Amy Coney Barrett authored a dissenting opinion, in which Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson joined, arguing that the applicants are unlikely to succeed on the merits of their challenge to the EPA's rule. Justice Barrett rejected the Court's theory about EPA's failure to explain as underdeveloped, plagued by significant procedural obstacles, and contradicted by evidence in the record. Justice Barrett argued that the EPA's methodology for calculating emissions limits appears to be independent of the number of states covered, and that the Clean Air Act's stringent harmless-error rule would likely prevent the applicants from prevailing even if there were a procedural error. She also criticized the majority for granting emergency relief based on a theory that was not fully briefed or argued. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.  --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

In this case, the court considered this issue: does 18 U-S-C § 666(a)(1)(B) criminalize gratuities, i.e., payments in recognition of actions a state or local official has already taken or committed to take, without any quid pro quo agreement to take those actions?    The case was decided on June 26, 2024. The Supreme Court held that Federal law, 18 U-S-C §666, proscribes bribes to state and local officials but does not make it a crime for those officials to accept gratuities for their past acts. Justice Brett Kavanaugh authored the 6-3 majority opinion of the Court. The Court identified six main reasons that 18 U-S-C §666(a)(1)(B) is a bribery statute and not a gratuities statute:    a) Text: The language of §666 closely resembles the federal bribery statute (§201(b)) rather than the federal gratuities statute (§201(c)).    b) Statutory history: Congress amended §666 in 1986 to model it after the bribery statute, not the gratuities statute.    c) Statutory structure: Unlike other laws, §666 does not separate bribery and gratuities into distinct provisions.    d) Statutory punishments: The penalties in §666 align with those for bribery, not gratuities, and would create inexplicable sentencing disparities if applied to gratuities.    e) Federalism: Interpreting §666 as a gratuities statute would significantly infringe on states' rights to regulate their officials' conduct.    f) Fair notice: The government's interpretation would create ambiguity and potentially criminalize innocuous behavior without clear guidelines for state and local officials. The Court rejected the government's argument that the inclusion of the term "rewarded" in §666 indicates it covers gratuities. Rather, the word "rewarded" serves to close potential loopholes in bribery cases. Because §666 prohibits bribes but not gratuities, state and local governments may choose whether and how to regulate gratuities for their officials within constitutional bounds. Justice Neil Gorsuch joined the Court's opinion in full and wrote a separate concurrence. Justice Ketanji Brown Jackson authored a dissenting opinion, in which Justices Sonia Sotomayor and Elena Kagan joined. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.  --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

This Day in Legal History: SCOTUS Ends Bus SegregationOn November 13, 1956, the U.S. Supreme Court took a pivotal stand against racial segregation by refusing to hear the appeal in Browder v. Gayle, a landmark case challenging bus segregation laws in Alabama. This action upheld a ruling from the U.S. District Court for the Middle District of Alabama, which had declared state and local bus segregation laws unconstitutional. This legal victory effectively ended the Montgomery Bus Boycott, a 381-day protest sparked by Rosa Parks' arrest for refusing to give up her bus seat to a white passenger in Montgomery, Alabama.The boycott, organized by the Montgomery Improvement Association under the leadership of a young Dr. Martin Luther King Jr., had drawn national attention and served as a major catalyst for the Civil Rights Movement. By ruling against bus segregation, the Supreme Court struck down a long-standing component of Jim Crow laws in the South, emphasizing that enforced racial segregation violated the Equal Protection Clause of the 14th Amendment. This decision marked a significant legal and moral victory, highlighting the role of the federal judiciary in upholding civil rights in the face of local and state resistance.The end of bus segregation had immediate impacts, enabling Black citizens to ride buses alongside white passengers without enforced separation. More broadly, it emboldened the Civil Rights Movement, inspiring additional challenges to racial discrimination and unequal treatment across the United States.Donald Trump's push for a loyal attorney general highlights his intention to reshape the Justice Department to align closely with his agenda, a move seen as a bid to consolidate power and settle scores. Trump's past frustration with Jeff Sessions and Bill Barr, who he viewed as disloyal for permitting investigations against him, underscores his desire for an attorney general who will prioritize his directives, even if it undermines traditional Justice Department norms. Trump's team, led by conservative lawyer Mark Paoletta, is signaling that department employees must either support Trump's agenda or risk losing their positions, signaling a deep commitment to loyalty over impartiality.Trump has promised to prioritize mass deportations, pardon January 6 rioters, and aggressively pursue individuals and officials he believes have wronged him, including political figures like Joe Biden, prosecutors like Alvin Bragg, and past critics like Liz Cheney. Legal experts warn that this approach could undermine prosecutorial independence, a principle established after the Watergate scandal. Trump's transition team suggests a shift in priorities for the Justice Department, where cases involving immigration and religious freedom would take precedence over issues like police accountability and diversity programs.With the Supreme Court's recent ruling granting broad presidential immunity for official acts, Trump's power to leverage the Justice Department is greatly expanded. Critics, including attorney Bradley Moss, believe Trump is prepared to exploit these legal boundaries to fulfill his promises of “retribution.” The list of potential attorney general candidates includes loyalists like Andrew Bailey, Mike Lee, and Matthew Whitaker, hinting at Trump's intent to install officials willing to carry out his vision without hesitation.Trump seeks loyal attorney general | ReutersThe U.S. Supreme Court will hear arguments from Nvidia, which seeks to dismiss a securities fraud lawsuit accusing it of misleading investors about the extent of its revenue dependence on cryptocurrency-related sales. The case, led by Swedish investment firm E. Ohman J:or Fonder AB, claims Nvidia and CEO Jensen Huang made false statements in 2017-2018 that downplayed how much of the company's revenue growth stemmed from volatile crypto markets. When cryptocurrency profitability declined in 2018, Nvidia's revenue fell short of projections, leading to a stock price drop that hurt investors.The lawsuit initially dismissed by a federal judge was later revived by the 9th Circuit Court, which found the plaintiffs had sufficiently alleged that Nvidia's leadership knowingly or recklessly made misleading statements. Nvidia contends the plaintiffs have not met the high bar required under the Private Securities Litigation Reform Act of 1995, which aims to limit frivolous securities lawsuits by requiring clear evidence of intentional misrepresentation.The Biden administration has sided with shareholders in this case, while Nvidia argues the lawsuit should be dismissed for lack of sufficient evidence. This case, along with a similar one involving Meta, could shape the legal threshold for private securities fraud cases, potentially making it harder for investors to sue companies for alleged misleading statements. Rulings on both cases are expected by the end of June.US Supreme Court to hear Nvidia bid to avoid securities fraud suit | ReutersThe U.S. Supreme Court is debating how broadly to interpret what constitutes a "crime of violence" in a case involving mobster Salvatore Delligatti, who was convicted of attempted murder-for-hire. The legal question revolves around whether a crime can qualify as violent under federal law even when no physical force is directly used. Delligatti's case challenges a firearms statute that imposes a minimum five-year sentence for crimes involving “the use, attempted use, or threatened use of physical force.”The justices grappled with “absurd” hypotheticals to explore if a crime can be violent in nature without actual force, as the statute requires. Justice Ketanji Brown Jackson highlighted a hypothetical involving a lifeguard refusing to save someone, pointing out that under the court's “categorical approach,” even passive omissions could be considered violent. Justice Elena Kagan noted the oddity of this approach since failing to act doesn't fit typical violent behavior but could theoretically fulfill the statute's requirement, even for murder.Delligatti's defense argues that attempted murder isn't always inherently violent, as some cases might involve indirect actions or omissions. Justice Neil Gorsuch suggested the court could separate violent acts from omissions to avoid “absurdity.” Yet, the debate underscores the challenge: whether the law's strict categorization aligns with common-sense definitions of violent crimes, especially in cases involving complex, indirect criminal conduct like murder-for-hire.Mafia Case Tests Supreme Court on Crime of Violence Limits (1)Wealth managers are increasingly turning to strategies like the “tax-aware long-short” to help high-net-worth clients avoid taxes. This tax-loss harvesting approach involves holding one stock expected to appreciate long-term and another stock likely to decline in value short-term. When the anticipated loss occurs, the losing asset is sold to offset gains from the appreciating one, reducing taxable income and the overall tax bill. At the macro level, this strategy effectively shifts the tax burden from wealthy investors to average taxpayers and ultimately reduces public funds for essential services.The preferential treatment of long-term capital gains—taxed at up to 20%, compared to a 37% maximum for ordinary income—already favors investment income over wages. While this policy was intended to promote investment, its default high cost to public funds and the extensive tax planning that can be used to exploit it reveal systemic failures in the tax code. When tax professionals and investors go to such lengths to sidestep taxes, this reflects inefficiencies and inequities in tax policy.Addressing this issue requires substantial policy reforms. One solution would be to tax capital gains at the same rate as wages, removing the impetus to shift income into capital gains and thus increasing tax equity between ordinary income and investment income. While this might simplify the tax code and raise substantial revenue, it could discourage investment and lead to market volatility as investors bear more risk without tax-offset options.Another option is to tax unrealized gains, similar to property taxes which tax value without the need for realization, where gains are taxed at regular intervals even if the asset isn't sold. Under this approach, unrealized capital losses could offset unrealized gains during these set intervals, reducing opportunities for manipulative tax timing. This method would diminish the appeal of strategies like the long-short by minimizing the benefits of timing short-term losses against long-term gains. In sum, the effect of timing-based tax loss planning strategies would largely be blunted. On the polar opposite policy spectrum, lowering capital gains rates would reduce the financial incentive to hire advisors for complex tax avoidance strategies. Lowering rates might make it more cost effective for investors to pay taxes directly rather than invest in costly avoidance techniques.Ultimately, tax reform should prioritize policies that effectively generate revenue while minimizing the need for complex, resource-intensive planning.We Need a Better Way to Reduce Tax Avoidance and Enhance Equity This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

In this case, the court considered this issue: Does the Confrontation Clause of the Sixth Amendment permit the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst?     The case was decided on June 21, 2024. The Supreme Court held that when an expert conveys an absent lab analyst's statements in support of the expert's opinion, and the statements provide that support only if true, then the statements come into evidence for their truth, and thus implicate the Sixth Amendment's Confrontation Clause. Justice Elena Kagan authored the majority opinion of the Court. The Confrontation Clause applies to “testimonial hearsay,” that is, out-of-court statements introduced for their truth. The key question is whether the non-testifying analyst's lab statements were introduced for their truth or for another purpose. The Court rejected Arizona's argument that the statements were only used to show the basis of the non-testifying expert opinion, not for their truth.  Evidentiary rules do not control whether a statement is admitted for its truth; this is a constitutional question. When an expert conveys out-of-court statements to support their opinion, and those statements only support the opinion if true, then the statements have been offered for their truth. The jury cannot evaluate the expert's credibility without assessing the truth of the underlying statements. In this case, the expert's testimony relied entirely on accepting the non-testifying analyst's statements as true. His opinions were predicated on the truth of what the analyst reported about her lab work. Allowing this practice would undermine previous decisions in Melendez-Diaz and Bullcoming and allow easy evasion of the Confrontation Clause. Therefore, the non-testifying analyst's statements were introduced for their truth, violating Smith's confrontation rights if the statements were testimonial. The Court remanded for determination of whether the statements were testimonial by looking at each statement's “primary purpose.” Justices Clarence Thomas and Neil Gorsuch did not join the Court's analysis of when a statement is “testimonial,” and each wrote separately to explain how they differed. Justice Samuel Alito authored an opinion concurring in the judgment in which Chief Justice John Roberts joined, arguing that the majority unnecessarily complicated the matter and should have found that the testimony sought to prove the truth of the statements and was, therefore, inadmissible hearsay subject to the Confrontation Clause. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.  --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

In this case, the court considered this issue: Does 18 U-S-C § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violate the Second Amendment?    The case was decided on June 21, 2024. The Supreme Court held that when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment. Chief Justice John Roberts authored the 8-1 majority opinion of the Court. The Second Amendment right to keep and bear arms is fundamental but not unlimited. When examining a challenged regulation, the Court considers whether it is consistent with historical principles, not necessarily identical to historical laws. The key factors are why and how the regulation burdens the right. Section 922(g)(8) fits within this tradition. Historically, two legal regimes addressed firearms violence: surety laws and “going armed” laws. Surety laws allowed magistrates to require bonds from individuals suspected of future misbehavior, including firearm misuse. “Going armed” laws prohibited carrying weapons in a way that terrified the public. Both regimes targeted individuals who posed threats to others' safety. Section 922(g)(8) is relevantly similar to these historical laws. It applies to individuals found by a court to threaten others' physical safety, just as the historical laws did. The burden it imposes—temporary disarmament based on a judicial finding—is also consistent with historical practice. While not identical to historical laws, Section 922(g)(8) aligns with the principles underlying the Second Amendment and historical firearm regulations aimed at preventing violence. Justice Sonia Sotomayor authored a concurring opinion, in which Justice Elena Kagan joined, opining that the Court correctly applied its decision in Bruen, but she continues to believe that Bruen was incorrectly decided. Justice Neil Gorsuch authored a concurring opinion, emphasizing that while Section 922(g)(8) can be constitutional in some applications, the Court's ruling is narrow and leaves open many questions about the law's constitutionality in other specific circumstances. Justice Brett Kavanaugh authored a concurring opinion to review the proper roles of text, history, and precedent in constitutional interpretation. Justice Ketanji Brown Jackson authored a concurring opinion, noting that two years' after Bruen, it is now clear that the unclear legal standard established in Bruen is difficult for lower courts to apply. Justice Amy Coney Barrett authored a concurring opinion, acknowledging lower courts' struggle to apply Bruen but pointing out that in this case, the Court settles on just the right level of generality Justice Clarence Thomas authored a dissenting opinion, arguing that not a single historical regulation justifies the statute at issue. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.  --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

In this case, the court considered this issue: May a Fourth Amendment malicious-prosecution claim proceed as to a baseless criminal charge so long as other charges brought alongside the baseless charge are supported by probable cause?     The case was decided on June 20, 2024.  The Supreme Court held that pursuant to the Fourth Amendment and traditional common-law practice, the presence of probable cause for one charge in a criminal proceeding does not categorically defeat a Fourth Amendment malicious-prosecution claim relating to another, baseless charge. Justice Elena Kagan authored the 6-3 majority opinion of the Court. First, the Court considered the Fourth Amendment issue. A Fourth Amendment malicious prosecution claim can proceed even when a baseless charge is accompanied by a valid charge. This is because a pretrial detention must be based on probable cause, and if an invalid charge causes a detention to start or continue, the Fourth Amendment is violated, even if a valid charge also exists. Second, looking at the common law tort of malicious prosecution, which was analogous to Fourth Amendment malicious prosecution claims when §1983 was enacted. Historical evidence shows that courts assessed probable cause on a charge-by-charge basis, and a plaintiff could bring a malicious prosecution claim for groundless charges even if they were coupled with well-founded ones. Based on these two lines of reasoning, the Court rejected the Sixth Circuit's categorical rule that barred Fourth Amendment malicious prosecution claims if any charge was valid and concluded that courts should evaluate such suits on a charge-by-charge basis. Justice Clarence Thomas authored a dissenting opinion, in which Justice Samuel Alito joined, reiterating Justice Alito's prior opinion (in which Justice Thomas joined) that a “malicious prosecution claim cannot be based on the Fourth Amendment.” Justice Neil Gorsuch authored a dissenting opinion, arguing that nothing in the language of the Fourth Amendment supports a malicious prosecution claim. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.  --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

Welcome to Supreme Court Opinions. In this episode, you'll hear the Court's opinion in Diaz v United States.      In this case, the court considered this issue: Under Federal Rule of Evidence 704(b), may a governmental expert witness testify that couriers know they are carrying drugs and that drug-trafficking organizations do not entrust large quantities of drugs to unknowing transporters to prove that the defendant knew she was carrying illegal drugs?    The case was decided on June 20, 2024. The Supreme Court held that expert testimony that “most people” in a group have a particular mental state is not an opinion about “the defendant” and thus does not violate Federal Rule of Evidence 704(b). Justice Clarence Thomas authored the 6-3 majority opinion of the Court. Federal Rule of Evidence 704(b) is a narrow exception to the general admissibility of ultimate issue opinions established by Rule 704(a). It only prohibits expert opinions about whether a specific defendant had a particular mental state that is an element of the crime or defense. It does not bar testimony about the mental states of people in general or groups that may include the defendant. Moreover, the language of Rule 704(b), particularly the word “about,” supports the conclusion that the rule targets specific conclusions about a defendant's mental state, not just any testimony related to mental states. This interpretation is further supported by the context of Rule 704(a), which allows opinions embracing ultimate issues, making Rule 704(b) a narrow exception to that broader rule. Justice Kentanji Brown Jackson authored a concurring opinion to emphasize that, as Congress designed it, Rule 704(b) is party agnostic. Justice Neil Gorsuch authored a dissenting opinion, in which Justices Sonia Sotomayor and Elena Kagan joined. Justice Gorsuch argued that the majority's interpretation allows prosecutors to put an expert on the stand to testify as to what “most” people like the defendant think when they commit a legally proscribed act and then merely convince the jury that the defendant is like “most” people and convict. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.  --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

Welcome to Supreme Court Opinions. In this episode, you'll hear the Court's opinion in Campos-Chaves v Garland.      In this case, the court considered this issue: Does the government provide adequate notice under 8 U-S-C § 1229(a) when it serves an initial notice document that does not include the “time and place” of proceedings followed by an additional document containing that information? The case was decided on June 14, 2024. The Supreme Court held that because each of the noncitizens in this case received a proper notice for the removal hearings they missed and at which they were ordered removed from the United States, they cannot seek rescission of their in absentia removal orders on the basis of defective notice under §1229a(b)(5)(C)(ii). Justice Samuel Alito authored the 5-4 majority opinion of the Court. The phrase “notice in accordance with paragraph (1) or (2)” in §1229a(b)(5)(C)(ii) means that either a paragraph (1) notice to appear (NTA) or a paragraph (2) notice of hearing can suffice to defeat rescission. The word “or” is typically disjunctive, and the statutory context supports this reading. The notice that “matters” for purposes of rescission is the one that informed the noncitizen of the time and date of the missed hearing at which they were ordered removed. This aligns with §1229a(b)(5)(A), which ties “the written notice” to the specific missed proceeding. A paragraph (2) notice can stand alone and provide valid notice, even if the initial NTA was deficient. The terms “change” and “new” in paragraph (2) do not require a prior compliant NTA.  Here, the noncitizens received proper paragraph (2) notices for the hearings they missed, even though their initial NTAs lacked time and place information. Therefore, they cannot seek rescission based on defective notice. While the government must still provide an NTA, noncitizens who receive only a paragraph (2) notice must attend the hearing or face removal in absentia. They can raise issues about incomplete notice at that time. Justice Ketanji Brown Jackson authored a dissenting opinion, in which Justices Sonia Sotomayor, Elena Kagan, and Neil Gorsuch joined. Justice Jackson argued that the majority's interpretation misreads the plain text of the statute and ignores the indispensable role of a compliant notice to appear (NTA) under §1229(a)(1). She contends that a paragraph (2) notice cannot stand alone and presupposes a valid NTA, as evidenced by the statute's structure, language, and context. This reading aligns with the Court's previous statements in Pereira and Niz-Chavez, and the majority's different interpretation disrupts Congress's carefully crafted removal scheme, which balances efficiency with fairness and procedural integrity. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.  --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

Welcome to Supreme Court Opinions. In this episode, you'll hear the Court's opinion in Thornell v Jones.      In this case, the court considered this issue: What is the proper methodology for assessing prejudice, for purposes of an ineffective assistance of counsel claim? The case was decided on May 30, 2024. The Supreme Court held that when a capital defendant claims that he was prejudiced at sentencing because counsel failed to present available mitigating evidence, a court must decide whether it is reasonably likely that the additional evidence would have avoided a death sentence, which the court does by evaluating the strength of all the evidence and comparing the weight of aggravating and mitigating factors. Justice Samuel Alito authored the 6-3 majority opinion of the Court. To show ineffective assistance of counsel, Jones needed to prove his counsel's performance was deficient and prejudiced the outcome, meaning there was a reasonable probability that absent the errors, the sentencer would not have imposed the death penalty. The U.S. Court of Appeals for the Ninth Circuit failed to properly apply this standard in three ways: (1) It did not adequately consider the serious aggravating circumstances in Jones's case; (2) It applied an unsound rule prohibiting comparative analysis of expert testimony; and (3) It incorrectly suggested the sentencer cannot find mitigating evidence unpersuasive. Weighing the mitigating and aggravating evidence itself, the Court determined that most of Jones's mitigating evidence was already presented in state court and the new evidence was not substantial. In contrast, the aggravating circumstances—multiple homicides, cruelty, financial motivation, and murder of a child—are given great weight under Arizona law. Past Arizona cases with similar aggravating factors resulted in the death penalty even with significant mitigating evidence. Therefore, there was no reasonable probability that Jones's additional evidence would have changed the sentencing outcome. Justice Sonia Sotomayor authored a dissenting opinion, in which Justice Elena Kagan joined. Justice Sotomayor argued that while she agreed that the Ninth Circuit “all but ignored the strong aggravating circumstances in this case,” the majority “unnecessarily” reweighed the evidence itself rather than remanding it to the lower court to decide in the first instance. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you. --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

Welcome to Supreme Court Opinions. In this episode, you'll hear the Court's opinion in Brown v United States.      In this case, the court considered this issue: Does the "serious drug offense" definition in the Armed Career Criminal Act incorporate the federal drug schedules that were in effect at the time of the federal firearm offense? The case was decided on May 23, 2024. The Supreme Court held that a state drug conviction counts as an ACCA predicate if it involved a drug on the federal schedules at the time of that conviction. Justice Samuel Alito authored the 6-3 majority opinion of the Court. First, Precedent and statutory context support the Government's interpretation—that the federal and state definitions of a drug must match when the state crime was committed. ACCA is a recidivist statute that looks backward at a defendant's prior convictions to gauge their culpability and dangerousness. Treating state and federal drug offenses differently based on later changes to drug schedules would lead to strange results. Second, the Government's interpretation best fulfills ACCA's objectives. A defendant's prior serious drug convictions indicate a risk of future dangerousness, even if the drug is later considered less dangerous. The fact of the earlier conviction, not the legislature's subsequent judgment, is what matters for ACCA's purposes. Jackson's reliance on the reference canon and the principle that the law setting the penalty is the law in place when the crime was committed is misplaced. ACCA's reference to the Controlled Substances Act is specific, not general, and treating Jackson's prior convictions as ACCA predicates is consistent with the current law. Additionally, Brown's textual argument based on ACCA's use of the present tense, noting that this was likely a stylistic choice. Brown's reliance on the Schooner Peggy principle is misplaced because ACCA itself has not changed during the litigation. While the Government's interpretation may have some limitations, such as not capturing pre-1970 drug convictions, this is not absurd given the comprehensive regulatory scheme introduced by the Controlled Substances Act in 1970. The rule of lenity does not apply because the statute is not grievously ambiguous after considering context, precedent, and statutory design. Justice Ketanji Brown Jackson authored a dissenting opinion, in which Justice Elena Kagan joined in full and Justice Neil Gorsuch joined in part, arguing that, notwithstanding the majority's contrary contention, the text of 18 U.S.C. § 924(e)(2)(A)(ii) definitively answers the question presented here, establishing that courts should apply the drug schedules in effect at the time of the federal firearms offense that triggers ACCA's potential application. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you. --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

This Day in Legal History: Great Chicago FireOn October 8, 1871, the Great Chicago Fire ignited, marking one of the most devastating urban disasters in U.S. history. The fire burned for two days, fueled by dry conditions and wooden structures that dominated the cityscape. It destroyed over three square miles of Chicago, killing around 300 people and leaving 100,000 residents homeless. In the aftermath, the catastrophe highlighted the dangers of poor urban planning and inadequate fire-prevention measures.The devastation led to a complete overhaul of building codes and fire safety regulations. Chicago introduced stricter fire-resistant building requirements, mandating the use of materials like brick, stone, and iron instead of wood for new construction. The city also improved its firefighting infrastructure, investing in modernized equipment and more efficient water systems.These reforms had a ripple effect across the country, influencing urban development nationwide. Many U.S. cities adopted similar codes, fundamentally reshaping fire safety standards. Today, much of modern building regulations, including fire codes that require sprinkler systems and fireproof materials, can trace their origins back to the lessons learned from the Great Chicago Fire of October 8, 1871. The event is a lasting reminder of how disasters can drive lasting legal and regulatory changes.The U.S. Supreme Court recently heard arguments over whether a federal court can continue to oversee a consumer class action against Royal Canin and Purina after the plaintiffs amended their lawsuit to remove federal claims. The case involves claims from pet owners who argue that the companies misled them into believing prescription pet food was required and conspired to inflate prices. Initially filed in Missouri state court, the case moved to federal court after Purina's request. The companies' attorney, Katie Wellington, argued that federal jurisdiction should remain despite changes to the lawsuit, citing Congress's codification of supplemental jurisdiction principles. However, justices like Elena Kagan and Chief Justice John Roberts expressed skepticism, questioning whether a prior version of the lawsuit, no longer relevant, should dictate jurisdiction. Both seemed to support the companies argument initially but appeared to reconsider after hearing from the consumers' attorney, Ashley Keller, who maintained that the Eighth Circuit correctly returned the case to state court.The case's procedural history, including its back-and-forth between courts, complicates the jurisdictional question. The justices appeared to struggle with balancing precedents and whether altering the claims should impact the court where the case is heard. The broader question hinges on civil procedure and jurisdiction when a lawsuit is amended post-removal from state to federal court.The concept of supplemental jurisdiction, which allows federal courts to retain jurisdiction over state law claims if a case initially involves federal claims, even if the federal issues are later removed is central to the companies' argument.Supreme Court Wrestles With Venue in Prescription Pet Food FightFTX has received court approval to begin repaying billions of dollars to customers after its bankruptcy plan was approved by U.S. Bankruptcy Judge John Dorsey. The plan allows FTX to use up to $16.5 billion in recovered assets to repay customers affected by the crypto exchange's collapse. Under the plan, 98% of customers with claims of $50,000 or less will be repaid within 60 days of the plan's activation. FTX's bankruptcy was triggered by founder Sam Bankman-Fried's misappropriation of customer funds to cover risky bets made by his hedge fund, Alameda Research. Bankman-Fried was sentenced to 25 years in prison, and FTX has been recovering assets ever since.FTX will prioritize customer repayments over claims from U.S. government agencies like the IRS and Commodity Futures Trading Commission. The company has worked with global liquidators and settled various disputes to move forward with repayments. Some customers, however, are unhappy with the repayment structure, citing the rise in cryptocurrency prices since 2022, which they feel should be reflected in their recovery amounts. Despite these objections, FTX argues that it is not feasible to return the same crypto assets, as they were largely misappropriated.FTX cleared to repay billions to customers after bankruptcy plan approval | ReutersThe EPA has finalized the Lead and Copper Rule Improvements (LCRI), mandating an accelerated replacement of lead service lines in drinking water systems. The new rule requires replacing 10% of lead pipes annually over a decade, up from the previous 3%, with the process beginning in 2027. The EPA estimates that up to 9 million lead pipes remain in use across the U.S., posing significant health risks, especially to children. The rule also lowers the lead action level in drinking water from 0.015 to 0.010 milligrams per liter, triggering faster public notifications and filter distribution when lead is detected.The effort is backed by $15 billion from the 2021 infrastructure law, along with additional funding from the Drinking Water State Revolving Fund. It closes loopholes allowing extended replacement times and pressures homeowners to replace privately owned lead pipes. The rule reflects the Biden administration's emphasis on clean water as a priority, though legal challenges to the LCRI are expected. EPA Administrator Michael Regan reiterated that no level of lead in drinking water is safe due to its severe health impacts.EPA to Finalize Mass Lead Drinking Water Pipe Replacement PlanAnd in my column for Bloomberg this week, I talk a bit about a favorite bugbear of mine: film production tax incentives.California is losing its dominance in the film industry as productions move to other states and countries offering more attractive tax incentives. While expanding California's film tax credits might seem like an immediate solution, this approach could worsen the competition among states, leading to a "race to the bottom" in offering incentives. Instead, the state should focus on long-term solutions such as investing in infrastructure, green initiatives, and workforce development. These investments would create lasting economic benefits, rather than the temporary boosts provided by film tax credits.Tax credits for film productions have proven costly, with minimal sustained economic impact. Jobs created during productions are often short-lived, and sometimes the credits are sold, benefiting entities with no connection to the state. In contrast, California could use tax incentives to build shared production facilities and promote eco-friendly practices, lowering production costs and attracting filmmakers.Additionally, tying tax credits to workforce development through partnerships with educational institutions could create a skilled labor force within California. This would help sustain the industry locally while reducing the state's reliance on temporary incentives to compete with other regions. By investing in long-term infrastructure and labor, California can rebuild its film industry more sustainably. California Should Look Beyond Film Tax Credits to Boost Industry This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

Welcome to Supreme Court Opinions. In this episode, you'll hear the Court's opinion in Alexander V South Carolina State Conference of the NAACP.      In this case, the court considered this issue: Does the South Carolina legislature's redistricting map, which has the effect of moving tens of thousands of Black voters to a different district, constitute an impermissible racial gerrymander, even if the legislators' purported intent was merely a political gerrymander? The case was decided on May 23, 2024. The Supreme Court held that the district court's finding that race predominated in the design of South Carolina's first congressional district was clearly erroneous, so its racial-gerrymandering and vote-dilution holdings are reversed. Justice Samuel Alito authored the 6-3 majority opinion of the Court. To prove unconstitutional racial gerrymandering, a plaintiff must show that race was the “predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district.” To make that showing, a plaintiff must prove that the State “subordinated” race-neutral districting criteria such as compactness, contiguity, and core preservation to “racial considerations.” Racial considerations predominate when “race was the criterion that, in the State's view,  could not be compromised” in the drawing of district lines. However, when partisanship and race correlate, a constitutionally permissible partisan gerrymandered map can look very similar to a racially gerrymandered map. District courts must presume that legislatures acted in good faith in drawing a districting map. Here, the plaintiffs provided no direct evidence, and only weak circumstantial evidence, of a racial gerrymander. The four experts whose testimony the plaintiffs proffered, and on which the district court relied, are flawed because they “ignored certain traditional districting criteria” such as geographical constraints and the legislature's partisan interests. Further, the plaintiffs failed to provide a substitute map that shows how the State “could have achieved its legitimate political objectives” while producing “significantly greater racial balance.” An alternative map of this sort is crucial in helping plaintiffs disentangle race and politics. In light of the weak circumstantial evidence of racial gerrymandering and the absence of an alternative map, the district court's finding that race predominated the redistricting map was clearly erroneous. Justice Clarence Thomas authored an opinion concurring in part, arguing that the Court's review of the expert reports exceeds the proper scope of clear-error review. Justice Thomas argued that the district court's failure to evaluate evidence reflecting the correlation between race and politics with the necessary presumption of legislative good faith and its failure to properly account for the plaintiffs' failure to produce an alternative map are alone reversible legal errors. Justice Elena Kagan authored a dissenting opinion, in which Justices Sonia Sotomayor and Ketanji Brown Jackson joined, criticizing the “picking and choosing evidence to its liking.” Justice Kagan argued that rather than giving the district court's view of the evidence “significant deference” as is required by “clear error” review, the majority inverts the clear-error standard by using the presumption that a legislature acted in good faith and by treating any “possibility” that favors the state as “dispositive.” The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you. --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

Welcome to Supreme Court Opinions. In this episode, you'll hear the Court's opinion in Consumer Financial Protection Bureau v Community Financial Services Assn. of America, Ltd.       In this case, the court considered this issue: Does the funding scheme for the Consumer Financial Protection Bureau, which receives funding directly from the Federal Reserve, violate the Appropriations Clause of the Constitution? The case was decided on May 16, 2024. The Supreme Court held that the funding scheme for the Consumer Financial Protection Bureau satisfies the Appropriations Clause. Justice Clarence Thomas authored the 7-2 majority opinion of the Court. The Appropriations Clause provides that “no Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Article I, §9, cl. 7—in other words, government spending must be authorized by an act of Congress. Historically, the word “appropriation” requires identifying a source of public funds and authorizing the expenditure of those funds for designated purposes. The practices of the English Parliament after the Glorious Revolution, the American Colonies, early state legislatures, and the First Congress varied widely in their specificity, duration, and structure, but all met these basic requirements. The statute authorizing the CFPB's funding likewise contains the necessary elements of a valid appropriation under the Appropriations Clause. It identifies a source of funds (the combined earnings of the Federal Reserve System), sets a maximum amount that can be drawn, and specifies the purpose for which the funds can be used (to pay the CFPB's expenses in carrying out its duties). Furthermore, the CFPB's funding mechanism is analogous to some of the broad, open-ended appropriations passed by the First Congress. Therefore, the CFPB's funding statute satisfies the requirements of the Appropriations Clause. Justice Elena Kagan authored a concurring opinion, in which Justices Sonia Sotomayor, Brett Kavanaugh, and Amy Coney Barrett joined, noting that CFPB's funding scheme would have been acceptable not only in the late-18th century, but also any other time in our Nation's history. Justice Ketanji Brown Jackson authored a concurring opinion, endorsing judicial restraint. She pointed out that “when the Constitution's text does not provide a limit to a coordinate branch's power,” courts “should not lightly assume that Article III implicitly directs the Judiciary to find one.” Justice Samuel Alito authored a dissenting opinion, in which Justice Neil Gorsuch joined, arguing that the Appropriations Clause imposes more stringent obligations on Congress to monitor and control the expenditure of public funds and the projects they finance. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you. --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

Welcome to Supreme Court Opinions. In this episode, you'll hear the Court's opinion in Warner Chappell Music, Inc. v Nealy. In this case, the court considered this issue: Under the discovery accrual rule applied by the circuit courts and the Copyright Act's statute of limitations for civil actions, 17 U-S-C § 507(b), may a copyright plaintiff recover damages for acts that allegedly occurred more than three years before the filing of a lawsuit? The case was decided on May 9, 2024. The Supreme Court held that the Copyright Act entitles a copyright owner to obtain monetary relief for any timely infringement claim, no matter when the infringement occurred. Justice Elena Kagan authored the 6-3 majority opinion of the Court. The Copyright Act's statute of limitations provision establishes a three-year period for filing a copyright infringement suit, which begins to run when the claim accrues. This case assumes that a copyright claim accrues upon discovery of the infringement (the “discovery rule”), rather than when the infringement occurred, although the Court has not definitively resolved which rule applies. If a plaintiff has a timely claim under the discovery rule, the Act's remedial provisions do not impose any separate time limit on the recovery of damages. Those provisions state, without qualification, that an infringer is liable for either statutory damages or the owner's actual damages and the infringer's profits. The Second Circuit's view, relying on language from the Court's decision in Petrella v MGM, that damages are limited to the three years prior to filing suit, even if earlier infringements are timely under the discovery rule, lacks textual support and effectively nullifies the discovery rule. The Court's decision in Petrella does not support such a damages cap, as the Court merely described how the limitations provision works when a plaintiff, as in that case, has no timely claims for infringing acts more than three years old. In contrast, if a plaintiff like Nealy in this case has timely claims for earlier infringements under the discovery rule, he may obtain damages for those infringements, as the Copyright Act contains no separate time-based limit on monetary recovery. Justice Neil Gorsuch authored a dissenting opinion, in which Justices Clarence Thomas and Samuel Alito joined, arguing that the discovery rule of accrual, which the majority assumes without deciding in this case, is decidedly incorrect, and thus that any decision that relies on that rule is likely to soon become a “dead letter.” The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

Welcome to Supreme Court Opinions. In this episode, you'll hear the Court's opinion in Harrow v Department of Defense.      In this case, the court considered this issue: Is the 60-day filing deadline in 5 U-S-C § 7703(b)(1)(A) jurisdictional and thus not subject to equitable tolling? The case was decided on May 16, 2024. The Supreme Court held that the 60-day filing deadline for a federal employee to petition the Federal Circuit to review a final decision of the Merit Systems Protection Board, 5 U-S-C § 7703(b)(1), is not jurisdictional. Justice Elena Kagan authored the unanimous opinion of the Court. As a preliminary matter, procedural requirements are typically not treated as jurisdictional unless Congress clearly states otherwise. This sets a high bar for finding a procedural rule to be jurisdictional. The language of § 7703(b)(1) itself does not suggest that the 60-day deadline is jurisdictional. Although the deadline is stated in mandatory terms (“shall be filed”), the Court has repeatedly held that this is not enough to make a time bar jurisdictional. The provision does not mention the Federal Circuit's jurisdiction or authority to hear untimely claims. Nor does 28 U-S-C § 1295(a)(9), which grants the Federal Circuit jurisdiction over appeals from the MSPB “pursuant to” §7703(b)(1), automatically make the 60-day deadline jurisdictional. However, the Court found that the phrase "pursuant to" has multiple meanings and does not necessarily indicate strict compliance with every requirement of §7703(b)(1). Finally, this case is distinguishable from Bowles v Russell, which held that the deadline for filing an appeal from one Article III court to another is jurisdictional, because this case involves an appeal from an agency to a court, not from one court to another. Because Congress did not clearly state that the 60-day deadline in §7703(b)(1) is jurisdictional, and the language and context of the relevant statutes do not compel a jurisdictional reading, the deadline is a non-jurisdictional procedural requirement. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

Welcome to Supreme Court Opinions. In this episode, you'll hear the Court's opinion in Muldrow v City of St. Louis. In this case, the court considered this issue: Does Title VII of the Civil Rights Act of 1964 prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a signification disadvantage? The case was decided on April 17, 2024. The Supreme Court held that an employee challenging a job transfer under Title VII must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant. Although the judgment vacating and remanding the case was unanimous, Justice Elena Kagan authored the majority opinion of the Court, which was joined by five other Justices. Nothing in Title VII's text requires a transferred employee to show that the harm they suffered was “significant.” Rather, as long as the transfer left the employee worse off in some way with respect to their employment terms or conditions, and was made because of a protected characteristic like sex or race, it violates Title VII's prohibition on discrimination. There is no basis for reading a heightened “significant harm” standard into the statute. Title VII targets employment practices that treat a person worse because of a protected trait, without distinguishing between significant and less significant harms. While concerns about frivolous lawsuits are valid, courts have other ways to dismiss meritless claims without imposing an extra-textual "significant harm" requirement. Justice Clarence Thomas authored an opinion concurring in the judgment suggesting that the majority misinterpreted the opinion by the U.S. Court of Appeals for the Eighth Circuit, below. Justice Thomas argued that the appeals court's language requiring “a tangible change in working conditions that produces a material employment disadvantage” is not a heightened-harm requirement. Justice Samuel Alito authored an opinion concurring in the judgment criticizing the majority for failing to clarify the degree of harm required under Title VII, arguing that there is “little if any substantive difference between the terminology the Court approves and the terminology it doesn't like.” Justice Brett Kavanaugh authored an opinion concurring in the judgment, arguing that while he agrees with the majority in rejecting the “significant employment disadvantage” requirement, he disagrees with its new standard requiring “some harm.” Justice Kavanaugh provided an example of a situation that clearly violates Title VII but may not satisfy the majority's “some harm” requirement: “We are transferring you to the Cincinnati office because you are black. But your compensation will not change.” Any transfer on a discriminatory basis—no matter how quantifiable the harm—should be a violation of Title VII. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you. --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

In this episode of Passing Judgment, we engage with Maureen Groppe, who delves into the nuanced arena of Supreme Court reporting. Host Jessica Levinson probes into the personal dynamics among justices, leading Maureen to emphasize their professional decorum despite ideological differences. Jessica's students' questions introduce topics like maintaining objectivity and Supreme Court reform, with Maureen discussing the hurdles of simplifying complex legal issues for a general audience. This discussion offers a unique glimpse into the behind-the-scenes world of Supreme Court reporting and its impact on public perception.Here are three key takeaways you don't want to miss:1️⃣ Court's Collegiality: Groppe shares that justices stress their collegiality, although social interactions are often downplayed by some, like Justice Kagan, who emphasizes professional respect.2️⃣ Impact of Oral Arguments: Groppe shares the challenge of determining the impact of oral arguments on court decisions, using an emergency abortion case as an example where Justice Barrett's reactions played a crucial role.3️⃣ Reporting Impartiality: The episode includes a discussion on how reporters like Groppe maintain neutrality when covering Supreme Court cases with significant implications.Follow Our Host and Guest:@mgroppe @LevinsonJessica

ENCORE ALERT! The Feminist Buzzkills are signing off for a two week end-of-summer break! But, no need to fear – we're leaving y'all with some extra brain juice to help you prep for the November elections. We're dropping an ENCORE POD EPISODE of when we brought in an all-star team of experts to break down SCOTUS' EMTALA ruling to keep you company while we're offline. It went a little something like this…The Supreme Court FINALLY made up its mind on the fate of the Emergency Medical and Labor Act (EMTALA) earlier this summer, and your Feminist Buzzkills HAVE FACTS, FEELINGS, AND ANSWERS ABOUT IT!What in the abobo hell even was the Idaho v. United States case? Why is this NOT a win and NOT enough? How did the clown justices react? How does this affect other places, like Texas? And WTF happens next?! WE CALLED IN FOR BACKUP TO ANSWER ALL YOUR QUESTIONS! Your Buzzkills rallied together a dope lineup of EXPERTS to break it all down with us and dissect this nondecision-decision from all angles. GUEST ROLL CALL: Attorney Stephanie Toti, who successfully argued the Whole Woman's Health v. Hellerstedt case before the Supreme Court; Idaho reproductive rights activist Jen Jackson Quintano; Idaho OB-GYN and abortion provider Dr. Caitlin Gustafson; and Ryan Hamilton, a Texas activist who has been vocal about his and his wife's experience in accessing emergency abortion care. You don't wanna miss this one. This episode is a good reminder of how important it is to center abortion at the ballot box. Knowledge is power, y'all. We gotchu. OPERATION SAVE ABORTION: You can still join the 10,000+ womb warriors fighting the patriarchy by listening to our five-part OpSave pod series and Mifepristone Panel by clicking HERE for episodes, your toolkit, marching orders, and more. HOSTS:Lizz Winstead @LizzWinsteadMoji Alawode-El @MojiLocks SPECIAL GUESTS: Stephanie Toti TW: @LawyeringProjJen Jackson Quintano IG: @TheProVoiceProjectDr. Caitlin Gustafson TW: @CatitlinGustaf15 IG/TW: @Idaho_CSHRyan Hamilton IG/TW: @TheRyanHamilton GUEST LINKS: The Lawyering ProjectThe Pro-Voice ProjectIdaho Coalition for Safe Healthcare EPISODE LINKS:SCOTUS Ruling Restores Emergency Abortion Rights in Idaho, Leaves Texas Case HangingI'm Staying in Idaho to Practice Medicine After the u.s. Supreme Court's Emtala Decision‘Not a Victory,' but ‘A Delay': With the Supreme Court's Emtala Ruling, u.s. Women Are Still at RiskSIGN: Repeal the Comstock ActBUY: Reproductive Rights Wall Art!EMAIL your abobo questions to The Feminist BuzzkillsAAF's Abortion-Themed Rage Playlist FOLLOW US:Listen to us ~ FBK Podcast Instagram ~ @AbortionFrontTwitter ~ @AbortionFrontTikTok ~ @AbortionFrontFacebook ~ @AbortionFrontYouTube ~ @AbortionAccessFrontTALK TO THE CHARLEY BOT FOR ABOBO OPTIONS & RESOURCES HERE!PATREON HERE! Support our work, get exclusive merch and more! DONATE TO AAF HERE!ACTIVIST CALENDAR HERE!VOLUNTEER WITH US HERE!ADOPT-A-CLINIC HERE!EXPOSE FAKE CLINICS HERE!GET ABOBO PILLS FROM PLAN C PILLS HERE!When BS is poppin', we pop off!

This is a free preview of a paid episode. To hear more, visit davidlat.substack.comWelcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.Here's a trivia question for devotees of Original Jurisdiction: excluding Supreme Court justices and Judge Aileen Cannon, who has been most frequently recognized in these pages as Judge of the Week? It's a tie between a pair of four-time honorees: Judge James Ho (5th Cir.), whom I've previously interviewed, and Judge Kevin Newsom (11th Cir.)—my latest guest on the Original Jurisdiction podcast.This month marks the seventh anniversary of Judge Newsom's appointment to the U.S. Court of Appeals for the Eleventh Circuit. And although seven years is not a long time by the standards of judicial service, Judge Newsom has already developed a national reputation as one of the sharpest thinkers and writers on the federal bench.How has he put himself on the map? Many of history's most celebrated jurists have done so through dazzling dissents, such as Justice John Marshall Harlan, often called “The Great Dissenter,” and Justice Antonin Scalia.But Judge Newsom has done so through a more unusual vehicle: the concurrence (including the occasional self-concurrence, i.e., a concurrence to his own majority opinion). In a series of thoughtful and scholarly concurrences, he has tackled some of the messiest doctrinal areas and knottiest problems in American law, including standing, nondelegation, complex First and Second Amendment issues, the burden-shifting analysis of McDonnell Douglas v. Green, and jurisdiction under Bell v. Hood.Judge Newsom and I discuss why he writes these concurrences—plus Justice Elena Kagan's critique of superfluous concurrences, how to hire great law clerks (and feed them to the Supreme Court), and the potential utility of AI for originalism—in the latest episode of the Original Jurisdiction podcast.Show Notes:* Judge Kevin C. Newsom bio, U.S. Court of Appeals for the Eleventh Circuit* Remarks of Judge Kevin C. Newsom, Harvard Journal of Law & Public Policy* Interview of Judge Kevin Newsom, by David Oscar Markus for For the DefensePrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.Sponsored by:NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Justice Kagan makes remarks to the 9th Circuit and President Biden proposes SCOTUS reforms. The usual slow-moving summer legal news drag is disrupted by a number interesting cases and eye-raising comments. On the docket: —To stand or not to stand at a desk —Justice Kagan says Supreme Court reforms are "fair" —The Supreme Court's caseload —Are justices friendly? —President Biden's proposed reforms —Leonard Leo says "Dems are destroying a court they don't agree with" —Removing Chevron deference —Title IX cases launch across the U.S. —Taxes on our phone bills —PETA wins one for the gatos —Boneless chicken wings: dangerous or harmless wordplay? Show Notes: —Man makes a passionate speech on boneless chicken wings Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch's offerings—including Sarah's Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Joe Biden says he'll use his last months in office to push for "reform" of the Supreme Court, possibly including term limits, while Justice Elena Kagan comes out in favor of an "enforcement mechanism" for its ethics code. What are the pitfalls of these ideas, and will Kamala Harris, as the Democratic nominee for president, endorse them as the November election nears? Learn more about your ad choices. Visit megaphone.fm/adchoices

In one of many historic cases this term, the Supreme Court overturned the Chevron doctrine, which gave deference to federal agencies to interpret the laws they administer. Writing in dissent, Justice Elena Kagan, wrote that the Court's decision would be a “massive shock to the legal system.” But what does this mean for the average citizen? Legal analysts predict that it could help big industry challenge regulations governing clean air and water or rules around how to bring drugs safely to market. We'll talk to experts about this tectonic shift in the legal landscape and its consequences. Guests: Abigail Dillen, president, Earthjustice Rory Little, professor of constitutional law, UC School of Law, San Francisco Reshma Ramachandran, assistant professor, Yale School of Medicine; co-director, Yale Collaboration for Regulatory Rigor, Integrity and Transparency

In a 6-3 decision, the Justices abolish "Chevron deference," a doctrine that told judges to defer to regulatory agencies on the meanings of ambiguous laws. Does this really spell the end of expertise in Washington, as Justice Elena Kagan argues in dissent? Plus, the Supreme Court sends back to lower judges two laws in Florida and Texas that regulate social-media websites. Learn more about your ad choices. Visit megaphone.fm/adchoices

In a rare move within the U.S. Supreme Court, three justices recused themselves from a case related to the 2020 presidential election. Specifically, all three liberal justices of the court—Elena Kagan, Sonia Sotomayer, and Ketanji Brown Jackson—recused themselves from a case that was aimed at them. Let's go through the details together.

In this Opinionpalooza emergency bonus episode, Dahlia Lithwick and Mark Joseph Stern discuss Thursday's decision in Alexander v. South Carolina NAACP, highlighting the implications for racial gerrymandering and voting rights. They delve into Justice Alito's majority opinion, Justice Kagan's dissent, and Justice Thomas's concurrence. This decision would seem to effectively close the door permanently on racial gerrymander claims in federal courts. Dahlia and Mark discuss how this decision makes justice - and democracy - inaccessible for plaintiffs already shut out of the political system through racist maps with political excuses. In recent years, the Supreme Court has gutted the Voting Rights Act and now seems intent on hollowing out equal protection and diluting the reconstruction amendments; the constitutional provisions central to building a thriving diverse democracy. This episode is member-exclusive. Listen to it now by subscribing to Slate Plus. By joining, not only will you unlock exclusive SCOTUS analysis and weekly extended episodes of Amicus, but you'll also access ad-free listening across all your favorite Slate podcasts. Subscribe today on Apple Podcasts by clicking “Try Free” at the top of our show page. Or, visit slate.com/amicusplus to get access wherever you listen. Learn more about your ad choices. Visit megaphone.fm/adchoices

SERIES 2 EPISODE 181: COUNTDOWN WITH KEITH OLBERMANN A-Block (1:44) SPECIAL COMMENT: The would-be dictatorships are stacked up so thick they have to wait for permission to land. We rightfully fear a Trump dictatorship. Right now, however, we are being RULED by a Samuel Alito dictatorship. And now we have to take measures to overthrow it. Caught flying one insurrectionist flag at his VIRGINIA home – while he was adjudicating cases that could have benefitted the Trump Coup Attempt – Alito simply lied about it, claiming he had no role in it, then contradicted himself by telling a backstory of petty personal recrimination involving neighbors – a backstory which had its OWN set of lies. And now we know that THAT entire story was – at best – a lie of omission, because when Alito was caught improperly flying a disqualifying insurrectionist symbol in public at his primary home in 2021, he was continuing to hide the fact that through much or all of last summer he was flying a DIFFERENT disqualifying insurrectionist symbol in public at his vacation home in New Jersey. It is, as you know, the Appeal to Heaven flag, stolen by groups of Christo-Fascists from its historical role in our founding revolution and re-purposed to rationalize a fundamentalist religious dictatorship replacing representative government. As the New York Times noted in reporting this story, quote, “the phrase ‘appeal to heaven' comes from the 17th century philosopher John Locke, who wrote of a responsibility to rebel, even use violence, to overthrow unjust rule. ‘It's a paraphrase for trial by arms,' Anthony Grafton, a historian at Princeton University said in an interview,” unquote. It's a paraphrase for trial by arms, and it's been flying in public view from Samuel Alito's home. And now we have to figure out how to stop Alito from completing his plan to turn this country into a religious dictatorship - a kind of westernized Iran. On the other hand: In a surprise announcement, Donald Trump has declared himself dead. “They were authorized to shoot me!,” begins his email to try to con more money out of his dumbest cult members. Quote: “I nearly escaped death!”Uhhhh…. So… you… DIDN'T… escape death? Metaphorically, Trump may be right. The words used by the President and those around him about Trump's "Unified Reich" video are a sea change. They are calling him an antisemite. Next they need to call him a Nazi. B-Block (27:07) THE WORST PERSONS IN THE WORLD: Rishi Sunak, Prime Minister of the United Kingdom, apparently cannot afford a weather app. It rained so hard on him he became Rishi Sunk. Larry Hogan, a Republican, insists he's always protected women's rights. Of course he's lying. And as we realize just how corrupted and unsalvageable the Supreme Court is, Jim Jordan provides some comic relief by saying something that provides an immediate opportunity to insult Clarence Thomas and Sam Alito. C-Block (34:00) THINGS I PROMISED NOT TO TELL: I ran into Al Roker the other day, so naturally I have to tell you all my Matt Lauer stories. These are the obnoxious, vanity ones, as opposed to the assault-y ones.See omnystudio.com/listener for privacy information.

In this Opinionpalooza emergency bonus episode, Dahlia Lithwick and Mark Joseph Stern discuss Thursday's decision in Alexander v. South Carolina NAACP, highlighting the implications for racial gerrymandering and voting rights. They delve into Justice Alito's majority opinion, Justice Kagan's dissent, and Justice Thomas's concurrence. This decision would seem to effectively close the door permanently on racial gerrymander claims in federal courts. Dahlia and Mark discuss how this decision makes justice - and democracy - inaccessible for plaintiffs already shut out of the political system through racist maps with political excuses. In recent years, the Supreme Court has gutted the Voting Rights Act and now seems intent on hollowing out equal protection and diluting the reconstruction amendments; the constitutional provisions central to building a thriving diverse democracy. This episode is member-exclusive. Listen to it now by subscribing to Slate Plus. By joining, not only will you unlock exclusive SCOTUS analysis and weekly extended episodes of Amicus, but you'll also access ad-free listening across all your favorite Slate podcasts. Subscribe today on Apple Podcasts by clicking “Try Free” at the top of our show page. Or, visit slate.com/amicusplus to get access wherever you listen. Learn more about your ad choices. Visit megaphone.fm/adchoices

SERIES 2 EPISODE 165: COUNTDOWN WITH KEITH OLBERMANN A-Block (1:44) SPECIAL COMMENT: Justice Samuel Alito should wake up tomorrow in Gitmo. Or in a hospital prison ward being examined for illness, mental or otherwise. He and the other Conservative members of the Supreme Court are as dangerous to the future of this country and its citizens and its freedoms and its representative form of government, as any terrorists who have ever lived. If presidents knew they might be prosecuted for little things like trying to overturn a valid election and illegally staying in office, Alito told the lawyer representing Jack Smith, they would be way more likely to try to overturn a valid election and illegally stay in office. So, if you want to preserve democracy, you CAN'T prosecute a former president for trying to overturn a valid election and illegally staying in office. THAT is the constitutional position of the leading justice on the Supreme Court, the ones Trump's sheep follow, echoing almost word-for-word, things that the mad traitor Trump has posted on his social media feed about persecutions and retributions and retirements. This is Samuel Alito telling you that the way to insure peaceful transitions of power is: you can't prosecute a lame duck president who partially – and nearly FULLY – disrupted the peaceful transition of power. It sounds like something Joseph Heller CUT from his novel Catch-22 as too stupid to be useful as political satire. And it just went downhill from there. They asked Trump's lawyer if assassination of the opposing presidential candidate or a military coup might be considered a president's "official acts" and he said yes.  Ultimately, what the six conservatives on this destructive, fascist court hinted at yesterday, was how far they would go to prostitute themselves to rule FOR Trump in any case that comes before them. We've already seen them erase the clear mandate in the 14th Amendment because they felt it would deny American democracy the right to vote itself out of existence. We have now heard them try to cobble together any bullshit they had in their brains to immunize Trump for his countless crimes. But we have also been forewarned that if a case comes before THIS court relative to THIS election, they will figure out what is best for Trump and make up the reasons why. They WILL. After yesterday, you and I now KNOW this. ALSO: The gag order Trump keeps violating in New York will require another hearing with Justice Merchan. But not until next Wednesday. Because we all know we have all the time in the world. On the other hand, Trump addressed all his many legal cases late yesterday and sounded terrible. Breathless. You know how old he sounded? 206! B-Block (24:50) THE WORST PERSONS IN THE WORLD: For the first time they all come from one newspaper, for misdeeds revealed in one article. They are New York Times Washington Bureau Chief Elizabeth Bumiller, writer Peter Baker, and publisher A.G. Sulzberger, and they are the vindictive little shits who could help cost us democracy. Because as Politico reports, Sulzberger has ordered the paper to fixate on Joe Biden's age as payback for Biden refusing to give The Times a one-on-one interview. Apparently Sulzberger thinks when Trump comes to round up the liberals, intellectuals, and reporters, everybody at The Times will be issued a pass. C-Block (38:50) FRIDAYS WITH THURBER: Deliberately chosen to have nothing to do with Trump or politics or The Times, his wonderful story of a loathed practical jokester: "Meet Birdey Dogged."See omnystudio.com/listener for privacy information.

Get your tickets for Amicus Live in Washington DC here.  The first criminal trial of Donald Trump is finally here. This week, hundreds of possible jurors filed through Judge Juan Merchan's courtroom in lower Manhattan. The selection process was a preview of some of the challenges and pitfalls in the first ever criminal trial of a sitting or former President. On this week's show, Slate's senior legal writer Mark Joseph Stern sits down with Slate jurisprudence editor and Chief Law of Trump™ correspondent Jeremy Stahl to discuss what we learned this week, and what we can expect when the trial truly gets underway next week.  In today's bonus episode only for Slate Plus members, Dahlia Lithwick and Mark Joseph Stern welcome Justice Clarence Thomas back from his long weekend, with a close listen to the January 6th case that was argued before the court on Tuesday. Fischer v United States is raising more alarm bells about the conservative justices' posture toward armed insurrection. They also dig into Justice Elena Kagan's opinion in a potentially tricky TitleVII case that, miraculously for this court, went pretty well in terms of civil rights protections in the workplace. Listen now by subscribing to Slate Plus. By joining, not only will you unlock exclusive SCOTUS analysis and weekly extended episodes of Amicus, but you'll also access ad-free listening across all your favorite Slate podcasts. Subscribe today on Apple Podcasts by clicking “Try Free” at the top of our show page. Or, visit slate.com/amicusplus to get access wherever you listen. Learn more about your ad choices. Visit megaphone.fm/adchoices

Get your tickets for Amicus Live in Washington DC here.  The first criminal trial of Donald Trump is finally here. This week, hundreds of possible jurors filed through Judge Juan Merchan's courtroom in lower Manhattan. The selection process was a preview of some of the challenges and pitfalls in the first ever criminal trial of a sitting or former President. On this week's show, Slate's senior legal writer Mark Joseph Stern sits down with Slate jurisprudence editor and Chief Law of Trump™ correspondent Jeremy Stahl to discuss what we learned this week, and what we can expect when the trial truly gets underway next week.  In today's bonus episode only for Slate Plus members, Dahlia Lithwick and Mark Joseph Stern welcome Justice Clarence Thomas back from his long weekend, with a close listen to the January 6th case that was argued before the court on Tuesday. Fischer v United States  is raising more alarm bells about the conservative justices' posture toward armed insurrection. They also dig into  Justice Elena Kagan's opinion in a potentially tricky TitleVII case that, miraculously for this court, went pretty well in terms of civil rights protections in the workplace. Listen now by subscribing to Slate Plus. By joining, not only will you unlock exclusive SCOTUS analysis and weekly extended episodes of Amicus, but you'll also access ad-free listening across all your favorite Slate podcasts. Subscribe today on Apple Podcasts by clicking “Try Free” at the top of our show page. Or, visit slate.com/amicusplus to get access wherever you listen. Learn more about your ad choices. Visit megaphone.fm/adchoices

For anyone familiar with the photo industry, the mammoth lawsuit between The Andy Warhol Foundation and renowned music photographer Lynn Goldsmith should be no secret. This complex battle over the rights to her 1981 portrait of the artist formerly known as Prince lasted seven years and went all the way to the Supreme Court.   But do you know the circumstances behind her original portrait session with the famously reserved musician, and were you aware of all the misinformation about this case that was disseminated in both legal documents and the press?   Lynn is a longtime friend of the show, and our 2017 episode about her extensive, long-term work with the band Kiss, among other crazy stories, was a fan favorite. We invited her back to discuss this case in 2022, when the Supreme Court first agreed to hear it, but heeding the advice of her legal counsel she wisely declined our offer at that time.    In May 2023, the Supreme Court ultimately ruled in Lynn's favor in a 7-2 decision, which has already been shown to benefit others seeking remedies for the misuse of their creative works.   Yet, while this landmark decision happened last year, the case itself was not officially resolved until very recently—Friday, March 15, 2024, to be exact—a day some might recognize as the Ides of March.   Now that the final resolution has been signed, sealed, and delivered, we felt it was a perfect opportunity for Lynn to give us a recap of this David vs Goliath battle, with all its complexities and underlying bias.   From details about the Fair Use doctrine, to the matter of copyright registration, to her thoughts about the current photographer community, to the importance of standing up for one's rights, Lynn provides a clear and insightful assessment of one of the most traumatic and threatening experiences that any independent artist can face, as only she can.   To her very core, Lynn believes creativity can make anything possible, an ideology she sums up aptly at the end of our chat.   “I felt like some higher power picked me for this,” she says. “And that I had to make myself feel like a 1940s film with Fred Astaire and Ginger Rogers, where there was going to be a happy ending, that everything would work out just fine, and that I was going to prevail.”   Guest: Lynn Goldsmith Top shot © Lynn Goldsmith   Episode Timeline: 2:50: The backstory to Lynn Goldsmith's 1981 photo session with Prince. 7:17: Shooting both color and black-and-white in the days of film, a separate camera for each option. 11:15: Vanity Fair's 1984 use of Lynn's black and white portrait for artist reference.   13:47: Lynn's discovery of the original image use after Prince died in 2016.  19:50: The value of saving detailed records of licensing agreements for future reference. 23:14: The preemptive lawsuit the Andy Warhol Foundation filed against Lynn, and the misinformation contained in the Federal court filing. 32:15: Lynn discusses the Fair Use doctrine and the matter of copyright registration in relation to her case. 36:43: Episode Break 38:04: Meeting with the Andy Warhol Foundation and the deal on offer to resolve the lawsuit. 44:40: Lynn's thoughts about the current photographer community and the importance of standing up for your rights. 48:09: The multiple rounds of the Prince portrait lawsuit, from the first Federal case to the Second Circuit Court of Appeals to the Supreme Court. 56:29: Uneven reporting about the lawsuit in the press, with the photo press being fearful to write anything, and the art press releasing misinformation without fact checks. 1:00:27: Behind the scenes at the Supreme Court hearing, the effects of the 7 – 2 decision, as well as Justice Kagan's written opinion. 1:08:48: Lynn's thoughts about generative AI. Guest Bio: Lynn Goldsmith is a multi-awarded portrait photographer whose work has appeared on and in between the covers of top magazines worldwide. Her subjects have varied from entertainment to sports, film directors to authors, and from top celebrities to the ordinary man on the street. Her forty years of photography are both an investigation into the nature of the human spirit, as well as the natural wonders of our planet. As the author of 12 major photo books, Lynn's images are also featured in numerous museum collections, yet her professional achievements are in no way limited to the world of photography. She is the youngest member ever accepted into the Director's Guild of America (DGA), where she achieved several firsts—from the first rock show on network television to the first music documentary released as a theatrical short, and more. In the mid-seventies, Lynn stopped directing to concentrate fully on photography. By the early 80s, she departed from both photography and film, to become the first ‘optic-music' artist. Using the a.k.a. Will Powers, she produced the album "Dancing for Mental Health" on Island Records. Her debut album won critical acclaim and her single, Kissing with Confidence, reached #3 on the British charts. The wide range of Lynn's talents, skills and achievements are products of a belief she holds constant: Creativity is based on breaking limiting thought patterns, thus making anything possible.   Stay Connected: Lynn Goldsmith's Website: https://lynngoldsmith.com/menu.html Rock and Roll Photo Gallery Website: https://rockandrollphotogallery.com/ Lynn Goldsmith's Instagram: https://www.instagram.com/lynngoldsmith/ Lynn Goldsmith's Twitter: https://twitter.com/goldsmithphoto Lynn Goldsmith's Facebook: https://www.facebook.com/lynngoldsmithartist/ Lynn Goldsmith's YouTube: https://www.youtube.com/@lynn-goldsmith/ Lynn Goldsmith's GoFundMe Campaign Lynn Goldsmith's Wikipedia: https://en.wikipedia.org/wiki/Lynn_Goldsmith Pelican 1510TP Carry-On Case: https://www.bhphotovideo.com/c/product/1241003-REG/pelican_015100_0050_110_1510tp_carry_on_case_with.html