Supreme Podcast

On this episode, we review the oral arguments this week in Heffernan v. Paterson, N.J., which considers whether the First Amendment bars the government from demoting a public employee based on a supervisor's misperception of that employee political affiliation. Jeffrey J. Heffernan was demoted when he was seen carrying a political opponent's lawn sign. In fact, Mr. Heffernan was simply picking up the sign for his sick mother, who had her lawn sign stolen the previous day.

On this episode, we review the oral arguments in Bank Markazi v. Peterson, which asks the Supreme Court to resolve whether §502 of the Iran Threat Reduction and Syria Human Rights Act of 2012 directed to “the financial assets that are identified in and the subject of proceedings in New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518," violates the separation of powers. At stake is nearly $2 billion of bonds of the Central Bank of Iran that plaintiffs are seeking to attach to pay judgments for hundreds of Americans killed in multiple Iran‐sponsored terrorist attacks.

On this episode, we review the oral arguments this week in Puerto Rico v. Valle, a case which seeks to answer whether the Commonwealth of Puerto Rico and the Federal Government are separate sovereigns for purposes of the Double Jeopardy Clause of the United States Constitution.

On this episode we present the full oral arguments in one of the Court's most controversial cases of the term - Friedrichs v. California Teachers Association, which considers whether to overrule a prior Supreme Court decision approving of laws that require all employees represented by a union to pay the union "fair share service fees" for the cost of collective bargaining activities. Several California teachers argue that their First Amendment rights have been violated because they disagree with the Union.

On this episode we offer a brief summary of one of the Court's most controversial cases of the year - Friedrichs v. California Teachers Association, which considers whether to overrule a prior Supreme Court decision approving of laws that require all employees represented by a union to pay the union "fair share service fees" for the cost of collective bargaining activities. Several California teachers argue that their First Amendment rights have been violated because they disagree with positions taken by the Union.

On this episode, we review the oral arguments this week in Fisher v. University of Texas at Austin, which asks: Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013).

On this episode, we review five of the Court’s most controversial cases this Term thus far. Mullenix v. Luna - The doctrine of qualified immunity shields officials from civil liability so long as their conduct “‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” In this case, the Fifth Circuit held that Mullenix violated the clearly established rule that a police officer may not “ ‘use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others.’” Was the Fifth Circuit correct in its statment of the law? Williams v. Pennsylvania - Are the Eighth and Fourteenth Amendments violated where the presiding Chief Justice of a State Supreme Court declines to recuse himself in a capital case where he had personally approved the decision to pursue capital punishment against Petitioner in his prior capacity as elected District Attorney and continued to head the District Attorney's Office that defended the death verdict on appeal; where, in his State Supreme Court election campaign, the Chief Justice expressed strong support for capital punishment, with reference to the number of defendants he had "sent" to death row, including Petitioner; and where he then, as Chief Justice, reviewed a ruling by the state post- conviction court that his office committed prosecutorial misconduct under Brady v. Maryland, 373 U.S. 83 (1963), when it prosecuted and sought death against Petitioner? Heffernan v. Paterson - Whether the First Amendment bars the government from demoting a public employee based on a supervisor's perception that the employee supports a political candidate. Whole Woman’s Health v. Cole - Does a court err by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health? Little Sisters v. Burwell (and the consolidated cases) - Does the contraceptive coverage mandate of the Affordable Care Act violate the Religious Freedom Restoration Act? Next week, we will continue our coverage of the Court’s top cases this Term, with a review of the oral arguments in Evenwel v. Abbott, an important voting rights case, and Fisher v. University of Texas at Austin, an affirmative action case that the Court is hearing for a second time.

On this episode, we review the Court’s much-anticipated decision in Obergefell v. Hodges, wherein the Court considered whether the Fourteenth Amendment requires a state to license a marriage between two people of the same sex?

On this episode, we review the the Court's grant of review for the second time to Fisher v. University of Texas at Austin, which asks whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including the Court's 2013 decision in the Fisher case.

On this episode, we review the the Court's decision in Glossip v. Gross. In Baze v. Rees, 553 U.S. 35 (2008), the Court held that Kentucky’s three- drug execution protocol was constitutional based on the uncontested fact that “proper administration of the first drug”—which was a “fast-acting barbiturate” that created “a deep, comalike unconsciousness”—will ensure that the prisoner will not experience the known pain of suffering from the administration of the second and third drugs, pancuronium bromide and potassium chloride. The Baze plurality established a stay standard to prevent unwarranted last-minute litigation challenging lethal-injection protocols that were substantially similar to the one reviewed in Baze; a stay would not be granted absent a showing of a “demonstrated risk of severe pain” that was “substantial when compared to the known and available alternatives.” In this case, Oklahoma intends to execute Petitioners using a three-drug protocol with the same second and third drugs addressed in Baze. However, the first drug to be administered (midazolam) is not a fast-acting barbiturate; it is a benzodiazepine that has no pain-relieving properties, and there is a well-established scientific consensus that it cannot maintain a deep, comalike unconsciousness. For these reasons, it is uncontested that midazolam is not approved by the FDA for use as general anesthesia and is never used as the sole anesthetic for painful surgical procedures. Although Oklahoma admits that administration of the second or third drug to a conscious prisoner would cause intense and needless pain and suffering, it has selected midazolam because of availability rather than to create a more humane execution. Oklahoma’s intention to use midazolam to execute the Petitioners raises the following questions, left unanswered by this Court in Baze: Question 1: Is it constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, comalike unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious. Question 2: Does the Baze-plurality stay standard apply when states are not using a protocol substantially similar to the one that this Court considered in Baze? Question 3: Must a prisoner establish the availability of an alternative drug formula even if the state’s lethal-injection protocol, as properly administered, will violate the Eighth Amendment?

On this episode, we review the courts much-anticipated decision in King v. Burwell, which considered whether the Internal Revenue Service may permissibly promulgate regulations to extend tax-credit subsidies to coverage purchased through Exchanges established by the federal government under section 1321 of the Affordable Care Act.

On this episode, we review the four opinions of the Court issued on Monday this week: Horne v. Department of Agriculture - Whether the government's “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property,” applies only to real property and not to personal property. City of Los Angeles v. Patel - Does a hotel have an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest supplied information is mandated by law and that ordinance authorizes the police to inspect the registry? Kingsley v. Hendrickson - Whether the requirements of a 42 U.S.C. § 1983 excessive force claim brought by a plaintiff who was a pretrial detainee at the time of the incident are satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable. Kimble v. Marvel Enterprises, Inc. - Whether the Court prior decision in Brulotte v. Thys Co., which had held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se," should be overruled.

On this episode, we review the the Court's decision in City of Los Angeles v. Patel, which presented the following questions for review: I. To resolve a split between the Ninth and Sixth Circuits are facial challenges to ordinances and statutes permitted under the Fourth Amendment? II. To resolve a spilt between the Ninth Circuit and the Massachusetts Supreme Court, does a hotel have an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest supplied information is mandated by law and that ordinance authorizes the police to inspect the registry? If so, is the ordinance facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry?

On this episode, we discuss the Court's decision this week in Ohio v. Clark, which considered weather a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause?

On this episode, we discuss the Court's decision this week in Walker v. Sons of Confederate Veterans, which considered whether the messages and symbols on state-issued specialty license plates qualify as government speech immune from any requirement of viewpoint neutrality.