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Justice Scalia Discusses His New Book on Legal Interpretation on C-SPAN

July 30, 2012

In a C-SPAN video available here, Justice Antonin Scalia discussed his new book, Reading Law: The Interpretation of Legal Texts, co-authored by Bryan Garner. According to the network’s summary, Justice Scalia “defined the meaning of textualism as it relates to interpreting laws and the meanings of the words originalism and strict constructionism as they apply to constitutional law. He cautioned that individuals should read entire judicial opinions before reaching any conclusion about a particular judge’s fairness. In this interview he discussed his opposition to cameras in the Supreme Court chamber. He responded to video clips and talked about criticism from the press, saying that he responds by not commenting or by writing letters to the editor and throwing them away.”

Video of FedSoc’s 2012 Annual Supreme Court Roundup with Ted Olson

July 9, 2012

On July 6, 2012, former U.S. Solicitor General Theodore Olson delivered the Annual Supreme Court Round Up at The Mayflower Hotel in Washington, DC.

Featuring:

On July 6, 2012, in front of a packed audience in the Mayflower Hotel ballroom former solicitor general Ted Olson offered his take on the Supreme Court over the last year.  He began by noting how quickly liberal pundits went from predicting that irresponsible activist conservative justices would overturn Obamacare, to praising Chief Justice Roberts for his statesmanship and willingness to wisely rise above “law and ideology.”  Olson quoted CNN and New Yorker legal analyst Jeffrey Toobin, who, after the decision came down, rationalized it by saying that “in a constitutional storm any port will do.”  The former solicitor general then turned to the problem of the homogeneity of the court.  He pointed out that not a single justice served in public office, all but one served as an appellate judge, and that their backgrounds showed a tilt toward the northeast U.S.  Indeed, he said that four of the five boroughs of New York City were represented on the Court; he joked that presumably the next appointment will hail from Staten Island.  He also discussed the dominance of Harvard, Yale, and Princeton in the justices’ educations.

Despite the attention the year’s controversial cases received, Olson noted that there were 34 cases with no or only one dissent.  However, in the most controversial cases, the opinions usually split evenly on conservative and liberal lines.  Olson then turned to examine the decision in some of the year’s highest profile cases.  One pattern he saw was that Justice Alito has been strong in protecting Fourth Amendment rights, but has been the sole dissenter in various First Amendment cases.  Regarding the U.S. v. Jones warrantless GPS tracking case, Olson highlighted the divergence between Justices Scalia and Alito in how they addressed the issue.  Justice Scalia focused on the understanding of trespass at the time of the Founding, whereas Justice Alito turned to what are realistic expectations of privacy today.  Looking at the decision in Miller v. Alabama, which struck down mandatory life sentences without parole for juvenile offenders, Olson noted that the majority held that the ban on cruel and unusual punishment prohibits “excessive sanctions.”  In doing so, the majority imported the notion of excessiveness from the bail and fines clauses.  As for Hosanna Tabor, Olson said it was an important victory for religious freedom; the unanimous Court upheld both the free exercise clause as well as the establishment clause against the federal government.

The two decisions that upset the political left the most, he explained, were Knox v. SEIU and Montana’s Citizens United case.  Each in a different way removed barriers to political activity; both also effectively liberated money hostile to the left.  The Obamacare decision, he noted, abounded with legal and political irony.  He attempted to explain Chief Justice Roberts’ understanding of what is and is not a tax, but admitted he had trouble making sense of it. Olson said he regretted the leaks regarding how the Court came to its decision, which he said put a stain on the Court.  He concluded by chastising those, from left or right, who sought to politicize the decision.

Healthcare Reform in the Supreme Court 4-17-12

June 8, 2012

The Iowa Lawyers Chapter hosted this event on April 17, 2012. Gregory Katsas is the co-lead counsel for the private parties challenging President Obama’s healthcare law, the Affordable Care Act, and argued in the Supreme Court on behalf of all respondents on the jurisdictional issue of whether the challenge is barred by the Anti-Injunction Act. Following the historic three days of oral arguments in the Supreme Court, Mr. Katsas presented his insider perspective on the oral arguments and the many legal issues involved.

Featuring:
–Hon. Gregory Katsas, Partner, Jones Day, Co-Lead Counsel for the Private Party Plaintiffs Challenging the Affordable Care Act and Former Assistant Attorney General for the Civil Division, U.S. Department of Justice
–Introduction: Mr. Samual P. Langholz, State Public Defender of Iowa and President, Iowa Lawyers Chapter

Iowa State Bar Association Headquarters
Des Moines, IA

How the Supreme Court Has Subverted the Constitution 4-3-12

April 26, 2012

The Supreme Court has endorsed an exponential growth in federal government power, often at the expense of individual liberty. Essentially, the Court has rewritten the Constitution without input from or accountability to the people. Bob Levy will examine several of the most pernicious Supreme Court decisions of the modern era. In the process, he will untangle complex Court opinions and assess their implications for today’s public policy debates. Bob will also contrast and compare liberal, conservative, and libertarian views of the Constitution. This event was hosted by the Las Vegas Lawyers Chapter on April 3, 2012.

Featuring:
–Mr. Robert A. Levy, Chairman, Cato Institute
–Introduction: Mr. Matthew D. Saltzman, Shareholder, Kolesar & Leatham and President, Las Vegas Lawyers Chapter

Fogo de Chao Churrascaria Restaurant
Las Vegas, NV

Detention, Interrogation and Trial of Terrorist Suspects — 10 Years Later 4-5-12

April 12, 2012

The legal ambiguities associated with the classification, interrogation and adjudication of al Qaeda members alleged to have committed war crimes continue to hamper the Obama administration’s national security policy. This confusion and the inconsistent application of laws to govern the conflict have exacerbated criticism of the U.S. approach to the war on al Qaeda. This panel, featured during the 2012 National Security Symposium, will analyze, from myriad perspectives, U.S. policy and practice on these issues as we enter the second decade of the armed conflict.

Welcome and Introduction
–Vincent J. Vitkowsky, Adjunct Fellow, Center for Law and Counterterrorism

Panel One: Detention, Interrogation and Trial of Terrorist Suspects — 10 Years Later
–Prof. Nathan A. Sales, George Mason University School of Law
–Charles D. “Cully” Stimson, former Deputy Assistant U.S. Secretary of Defense (Detainee Affairs) and Senior Legal Fellow, Heritage Foundation
–Prof. Stephen I. Vladeck, American University Washington College of Law
–Benjamin Wittes, Senior Fellow, Brookings Institution
–Moderator: Prof. Glenn M. Sulmasy, U.S. Coast Guard Academy

Jones Day LLP
Washington, DC

National Security After U.S. v. Jones 4-5-12

April 12, 2012

Former Secretary of Homeland Security Michael Chertoff delivered an address on “National Security After U.S. v. Jones” at the 2012 National Security Symposium on April 5, 2012. He was introduced by Vincent J. Vitkowsky of the Center for Law and Counterterrorism.

Luncheon Address: “National Security After U.S. v. Jones”
–Hon. Michael Chertoff, Co-founder and Managing Principal, The Chertoff Group and former Secretary, Department of Homeland Security
–Introduction: Vincent J. Vitkowsky, Adjunct Fellow, Center for Law and Counterterrorism

Jones Day LLP
Washington, DC

Obamacare in the Supreme Court 3-20-12

March 21, 2012

The U.S. Supreme Court is now ready to hear oral argument in one of the most highly anticipated cases in the modern era, Florida v. U.S. Department of Health and Human Services, a consolidated series of challenges to the Patient Protection and Affordable Care Act. Our panel of experts will analyze the case and all issues before the Court, including discussion of the constitutionality of the individual mandate provision, severability, coercion and the Medicaid provision, and the implications of the Anti-Injunction Act. Please join us for what promises to be an important preview of these critical issues.

Featuring:
–Prof. Randy E. Barnett, Georgetown University Law Center
–Hon. Walter Dellinger, O’Melveny & Myers
–Prof. Neal K. Katyal, Georgetown University Law Center
–Mr. C. Kevin Marshall, Jones Day
–Moderator: Mr. Stuart Taylor, Jr., Contributing Editor, National Journal and Nonresident Fellow, Brookings Institution

National Press Club
Washington, DC

C. Kevin Marshall on the Most Powerful Argument Against ObamaCare’s Individual Mandate

March 20, 2012

On March 20, 2012, the Federalist Society’s Federalism & Separation of Powers Practice Group sponsored a panel discussion on “Obamacare in the Supreme Court.” The panelists were: Prof. Randy E. Barnett, Georgetown University Law Center; Hon. Walter Dellinger, O’Melveny & Myers; Prof. Neal K. Katyal, Georgetown University Law Center; Mr. C. Kevin Marshall, Jones Day.

In this video, C. Kevin Marshall explains what he sees as the most powerful argument against the individual mandate in The Patient Protection and Affordable Care Act.

Walter Dellinger on the Conservative Case for the Individual Mandate

March 20, 2012

On March 20, 2012, the Federalist Society’s Federalism & Separation of Powers Practice Group sponsored a panel discussion on “Obamacare in the Supreme Court.” The panelists were: Prof. Randy E. Barnett, Georgetown University Law Center; Hon. Walter Dellinger, O’Melveny & Myers; Prof. Neal K. Katyal, Georgetown University Law Center; Mr. C. Kevin Marshall, Jones Day.

In this video, Dellinger explains what he sees as conservative case for the individual mandate in The Patient Protection and Affordable Care Act.

Antitrust Enforcement as Regulation? 3-14-12

March 16, 2012

The popular press is full of reports of a renewed vigor in parts of our antitrust enforcement regime that address the conduct of leading firms. Investigations have been started or rumored against any number of firms near or at the top of various parts of the technology sector, including Intel, Yahoo, Google, Apple, AT&T, IBM, Facebook, and others. Forbes reported that the number of antitrust cases filed by the Department of Justice rose by 50 percent in 2011. These suits can be costly to defend, and carry large potential fines. Consent decrees negotiated to end such litigation often provide detailed terms and conditions governing the manner in which industry players may and may not conduct business going forward. In this environment, has antitrust enforcement itself become a regulatory mechanism? If so, does it represent the best way to regulate dynamic industries? These and other questions will be addressed by our panel of experts.

Featuring:
–Hon. Ronald A. Cass, President, Cass & Associates, PC
–Hon. James Miller III, Senior Advisor, Husch Blackwell LLP, and former director of the U.S. Office of Management & Budget
–Hon. Charles “Rick” Rule, Partner, Cadwalader Wickersham & Taft LLP
–Mr. Robert A. Skitol, Partner, Drinker Biddle & Reath LLP
–Moderator: Prof. F. Scott Kieff, George Washington University Law School

National Press Club
Washington, DC

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Podcasts


FedSoc SCOTUScast – Randy Barnett and Neal Katyal Discuss Obamacare

July 16, 2012

On June 28, 2012, the Federalist Society organized a SCOTUScast (recording here) on the Affordable Care Act decision. Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, discussed the case with Neal Katyal, a partner at Hogan Lovells, professor at Georgetown Law Center, and former Deputy Solicitor General.

Barnett began by noting that the two most important provisions of the ACA at stake were the individual mandate and the Medicaid provision.  The former required that all Americans purchase health insurance as a means to compensate insurance companies for the costs that were being imposed upon them by various restrictions or various requirements–for example, guaranteeing community rating, which required that they issue policies for coverage for pre-existing conditions and that their rates adjusted accordingly.  The Medicaid provision, he explained, represented a substantial change in the program: Congress was going to provide considerable additional funding for new expanded Medicaid programs. It conditioned this new funding on states’ acceptance of the expanded program, but it also reserved the right to condition the funding for all existing Medicaid programs.  It was the entire funding condition that was challenged because it was alleged to be coercive toward the states.

Barnett said that the answers to this issues were not what anybody expected. Just about everybody on both sides expected that if the ACA was upheld, it would be upheld under the Commerce Clause as well as under the tax power, but if it was struck down, then the Commerce Clause arguments and the challenges that were being made would be accepted and the government’s objections would be rejected. So basically it would be all or nothing. But that is not what his side got, he noted. Instead, there was a very unexpected opinion from Chief Justice Roberts as the swing vote: he strongly affirmed the Commerce Clause argument that Barnett and others had been making since the beginning. Second, that the courts will enforce those limits. Third, that the individual mandate exceeds those limits because it goes beyond the regulation of activity to the mandating or requiring of activity that would then be regulated. Chief Justice Roberts accepted that argument in its entirety, according to Barnett. He also accepted the argument that the Necessary and Proper Clause did not save the statue because, however necessary it might have been in the overall scheme of the ACA, it was not a proper means of exercising Congress’ power. But then he turned around and gave the statute a limiting construction, which he called a “saving construction”: the part of the individual mandate that required activity was eliminated by the penalty part, which was the cost of not getting insurance. He said the penalty part standing alone could be reconstructed to be a tax. Roberts explained that it was not the best or natural reading of the statute, but he said it was a possible reading that could be reasonable and therefore under the obligation of the Court to uphold the statue where possible. He adopted this saving construction, which he said he wouldn’t need to do if he could have upheld the entire mandate under the commerce clause and necessary and proper clause. So that is what happened on that score.

As for the Medicaid provision, Robert held with the concurrence of seven justices that the conditions being imposed on Medicaid spending were in fact unconstitutionally coercive, adding that this is the first time since the New Deal that any conditions based on congressional spending have been held to be both coercive and unconstitutional.  But then he said that the remedy for that was not to strike down or invalidate the entire Medicaid provisions but to say the secretary of HHS would not be able to condition existing Medicaid spending on the acceptance of the new programs.  Thus, states would essentially have a free choice to accept the new funding and expanded programs or not accept those things, while retaining and receiving the funds for the original program. Barnett then turned the discussion over to Neal Katyal.

Katyal congratulated Barnett for winning most of what he asked for: For the first time since the New Deal, the Supreme Court said that something transcends the limits of the commerce power. The kind of ethos of the decision–the muscular commerce clause limitation–could be something that would be fertile ground for litigation–even more so on the Medicaid side because, as Barnett said, the Court held that these restrictions on spending were too coercive. Moreover, other programs that use the spending power as a stick will be potentially deemed unconstitutional.

After agreeing with Katyal’s analysis, Barnett offered a hypothetical: What would have happened if Congress had written the law the same way except they explicitly called the penalty a tax. Barnett said that even though he and others would have argued that it is still unconstitutional because it would be a direct tax, etc., he said it was pretty safe to say that the lower federal courts would have upheld that tax.  That would have been the case even though it was a potentially punitive tax on inactivity. Yet had the law been written that way, and had it been upheld by the lower courts, Barnett doubted that the Supreme Court would have granted cert to the case. Thus, we would not have gotten terrific benefit of this decision on the Commerce Clause and Necessary and Proper Clause, as well as this limited ruling on the tax power.

The discussion continued from there…

David Rivkin on the Health Care Decision NFIB v. Sebelius – Podcast

June 28, 2012

In the health care case NFIB v. Sebelius, the Supreme Court determined that the individual mandate exceeds the Commerce Clause power of Congress, but can be upheld under the taxing power. The Medicaid expansion provision was upheld, but the Court ruled that Congress could not take back Medicaid funds from states that decide to not participate in the expansion. In this recorded Teleforum, David Rivkin, the litigator who began this important case by filing the lawsuit in federal district court on behalf of numerous states and the NFIB, explains the decision and the dissents.

Featuring:

You can listen to the Teleforum here.

Arizona v. United States – Post-Decision SCOTUScast

June 28, 2012

On June 25, 2012, the Supreme Court  announced its decision in Arizona v. United States.  The question in this case was whether certain provisions of Arizona Senate Bill 1070 involving immigration activities and offenses are preempted by federal immigration laws.

The federal government challenged four provisions of SB 1070.  In an opinion delivered by Justice Kennedy, the Court held by a vote of 5-3 that three of these four provisions–Sections 3, 5(C), and 6–were preempted by federal law.  With respect to the fourth provision, Section 2, the Court held that the federal government had not yet demonstrated a sufficient basis for preemption.  The Chief Justice, as well as Justices Ginsburg, Breyer, and Sotomayor joined the majority opinion.  Justices Scalia, Thomas, and Alito filed opinions concurring in part and dissenting in part.  Justice Kagan took no part in the consideration or decision of the case.

To discuss the case, we have Margaret Stock, who is Counsel to Lane Powell PC, and John Eastman, who is the Henry Salvatori Professor of Law and Community Service at Chapman University School of Law, and Founding Director of the Center for Constitutional Jurisprudence.

Reichle v. Howards – Post-Decision SCOTUScast

June 14, 2012

On June 4, 2012, the Supreme Court announced its decision in Reichle v. Howards. This case concerns an incident that occurred when a citizen briefly touched Vice President Cheney during a public appearance, made an anti-war remark to him, and was arrested some time later by Secret Service agents but was not ultimately prosecuted.  The question in this case was twofold: (1) whether, if probable cause to make the arrest did exist, the citizen may nevertheless sue the agents for retaliatory conduct in violation of the First Amendment; and (2) whether the agents were entitled to immunity from such a lawsuit under federal law.

In an opinion delivered by Justice Thomas and joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito, and Sotomayor, the Court held by a vote of 8-0 that the agents were legally immune from suit because it was not clearly established at the time of the incident that an arrest supported by probable cause could give rise to a First Amendment violation.  Justice Ginsburg, joined by Justice Breyer, filed an opinion concurring in the judgment.  Justice Kagan took no part in the consideration or decision of the case.

To discuss the case, we have Scott Broyles, who is an Assistant Professor at Charlotte School of Law.

RadLAX Gateway Hotel, LLC v. Amalgamated Bank – Post-Decision SCOTUScast

June 11, 2012

On May 29, 2012, the Supreme Court announced its decision in RadLAX Gateway Hotel, LLC v. Amalgamated Bank.  This case involved Chapter 11 of the Bankruptcy Code, which provides for corporate reorganizations.  The question here was whether a Chapter 11 bankruptcy plan could be confirmed over the objection of secured creditor when the plan proposed to sell collateral free and clear of the creditor’s lien without allowing the creditor to “credit-bid” on the collateral at the sale; meaning the creditor could not offset the purchase price of the collateral by the value of the creditor’s claim on it.

In an opinion delivered by Justice Scalia, the Court held by a vote of 8-0 that debtors may not obtain confirmation of Chapter 11 plan that provides for the sale of collateral free and clear of a creditor’s lien without allowing the creditor to credit-bid at the sale.  Justice Kennedy took no part in the decision of the case.

To discuss the case, we have Thomas Plank, who is the Joel A. Katz Distinguished Professor of Law at the University of Tennessee College of Law.

Holder v. Gutierrez and Holder v. Sawyers; Vartelas v. Holder – Post-Decision SCOTUScast

June 8, 2012

On May 21, 2012,  the Supreme Court announced its decision in Holder v. Gutierrez and Holder v. Sawyers.  The decision in Vartelas v. Holder, a related case, was issued on March 28.

The central issue in Holder v. Gutierrez and Holder v. Sawyers was whether a non-citizen who cannot himself meet the requirements to avoid deportation (to have lived in the United States for at least seven years and have been lawful permanent resident for at least five years) can nevertheless avoid deportation if while still a minor he lived with a parent who could meet these requirements.

In an opinion delivered by Justice Kagan, the Court held unanimously that the Board of Immigration Appeals’ interpretation of the relevant statute–that an alien must personally meet the status/residency requirements to avoid deportation and that parental status/residency cannot be imputed–was a permissible interpretation and entitled to judicial deference.

The issue in Vartelas v. Holder was whether a statute providing for the denial of reentry to a lawful permanent resident who travels abroad after having been convicted of certain offenses can be applied retroactively to a legal permanent resident who was convicted prior to the passage of the statute.

In an opinion delivered by Justice Ginsburg, the Court held by a vote of 6-3 that the legal regime in force at the time of Vartelas’ conviction governs whether he may reenter the United States after traveling abroad, not the retroactive application of a statute passed after the date of his conviction.  Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan joined Justice Ginsburg’s opinion.  Justice Scalia filed a dissenting opinion, which was joined by Justices Thomas and Alito.

To discuss these cases we have Amy Moore, who is an associate professor at Belmont University College of Law.

Hall v. United States – Post-Decision SCOTUScast

June 7, 2012

On May 14, 2012, the Supreme Court announced its decision in Hall v. United States. The question in this case was whether capital gains tax liability resulting from individual debtors’ sale of a farm during the course of a Chapter 12 bankruptcy was a tax liability “incurred by the estate,” and for that reason could be treated by statute as an unsecured liability dischargeable in the bankruptcy proceedings.

In an opinion authored by Justice Sotomayor, the Court held by a vote of 5-4 that the capital gains taxes were not “incurred by the estate,” and thus were neither collectible nor dischargeable in Chapter 12 bankruptcy proceedings. Justice Sotomayor’s opinion was joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito.  Justice Breyer filed a dissenting opinion, which was joined by Justices Kennedy, Ginsburg, and Kagan.

To discuss the case, we have Andy Grewal, who is an Associate Professor of Law at the University of Iowa College of Law.

Freeman v. Quicken Loans Inc. – Post-Decision SCOTUScast

May 30, 2012

On May 24, 2012, the Supreme Court announced its decision in Freeman v. Quicken Loans, Inc.  This case involves a section of the Real Estate Settlement Procedures Act stating that “[n]o person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed.”  The question was whether this prohibition extends to “unearned, undivided” fees that lenders sometimes charge to borrowers at the closing of mortgage transactions.

In an opinion delivered by Justice Scalia, the Court held unanimously that, for a plaintiff to establish a violation of the prohibition in question, he or she must demonstrate that the charges for settlement services were divided between two or more persons.

To discuss the case, we have Andrew Morriss, who is the D. Paul Jones, Jr. & Charlene Angelich Jones Chairholder of Law at the University of Alabama School of Law.

Taniguchi v. Kan Pacific Saipan, Ltd. – Post-Decision SCOTUScast

May 25, 2012

On May 21, 2012, the Supreme Court announced its decision in Taniguchi v. Kan Pacific Saipan, Ltd.  The question in this case was whether the “compensation of interpreters,” a category of costs that a losing party in a federal lawsuit may be required to reimburse the winning party, includes money paid to translate written documents into English.

In an opinion delivered by Justice Alito, the Court held by a vote of 6-3 that because an interpreter is ordinarily understood as someone who translates orally, the translation of written documents is not included in the “compensation of interpreters.”  Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Kagan joined Justice Alito’s opinion.  Justice Ginsburg filed a dissenting opinion, which was joined by Justices Breyer and Sotomayor.

To discuss the case, we have Philip Pucillo, who is a Visiting Professor of Law at Michigan State University College of Law.

Blueford v. Arkansas – Post-Decision SCOTUScast

May 25, 2012

On May 24, 2012, the Supreme Court announced its decision in Blueford v. Arkansas.  This case involved a state court jury that had announced it was unanimous against guilt on charges of capital and first-degree murder, but ultimately deadlocked on a manslaughter charge.  A mistrial was then declared and the jury discharged; there was no entry of a formal verdict.  The question before the Supreme Court was whether the Fifth Amendment’s Double Jeopardy Clause prohibited the prosecutors from trying the defendant a second time on the capital and first-degree murder charges.

In an opinion delivered by Chief Justice Roberts, the Court held by a vote of 6-3 that the Double Jeopardy Clause did not protect the defendant from being retried on the capital and first-degree murder charges.  Justices Scalia, Kennedy, Thomas, Breyer, and Alito joined the Chief Justice’s opinion.  Justice Sotomayor filed a dissenting opinion, which was joined by Justices Ginsburg and Kagan.

To discuss the case, we have McGregor Scott, who is a Partner at Orrick, Herrington & Sutcliffe, LLP.

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