We discuss a recent effort to identify the least interesting SCOTUS case, and then discuss Tyler v. Hennepin County, United States ex rel. Schutte v. Supervalu Inc., and Glacier Northwest, Inc. v. Teamsters.
Strict Scrutiny - “Not That Bad” is Still Bad!
Melissa, Leah, and Kate talk to Jenny Hunter, a labor lawyer and union consultant, about the recent SCOTUS opinion in Glacier Northwest v. Teamsters which has implications for union labor laws and the right to strike. They also discuss Justice Alito’s ignoring the Court's newly self-imposed sort-of-not-really enforced ethics rules, and a PBS Frontline documentary about Clarence and Ginni Thomas (that even Kate couldn’t turn off).
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- Listen to these past episodes about Glacier Northwest v. Teamsters.
- Here is where you can find out more about Eyvin Hernandez, an LA County Public Defender who is being held in Venezuala after being detained while on vacation in Colombia last year.
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Opening Arguments - OA 754: Trump Drags Bragg To Federal Court; Bragg Drags Back (feat. David Lurie)
Liz and Andrew welcome NY practitioner David Lurie to the show to discuss Trump's efforts to remove his New York indictment to federal court.
28 USC 1442 https://www.law.cornell.edu/uscode/text/28/1442
In re Commonwealth, 790 F.3d 457 (3d Cir. 2015) https://scholar.google.com/scholar_case?case=5539437264593415986
Trump notice of removal https://storage.courtlistener.com/recap/gov.uscourts.nysd.598311/gov.uscourts.nysd.598311.1.0_2.pdf
Bragg Motion to Remand https://storage.courtlistener.com/recap/gov.uscourts.nysd.598311/gov.uscourts.nysd.598311.19.0.pdf
Morgan Lewis White Paper https://storage.courtlistener.com/recap/gov.uscourts.nysd.598311/gov.uscourts.nysd.598311.1.1_1.pdf
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Amicus With Dahlia Lithwick | Law, justice, and the courts - How SCOTUS Enabled The Explosion of Anti-Trans Laws
This episode is a part of Opinionpalooza. Slate’s coverage of Supreme Court decisions. We consider this coverage so essential that we’re taking down the paywall for all of it. If you would like to help us continue to cover the courts aggressively, please consider joining Slate Plus. And sign up for the pop-up newsletter to see the latest every week in your inbox.
On this week’s Amicus, a sobering interview between Dahlia Lithwick and the ACLU's Chase Strangio. Chase is deputy director for Transgender Justice with the ACLU’s LGBT and HIV Project and a nationally recognized expert on trans rights. . The sheer number and breadth of proposed new laws targeting trans people is breathtaking, and they are coming from some familiar quarters if you follow the Supreme Court and abortion law. This conversation helps to set the stage for the end of the Supreme Court’s term by looking beyond the cases being decided this month at One, First Street, and toward the legal landscape, and the systems and groups that are shaping that landscape for the rest of us. In the second half of the show, Dahlia is joined by her jurisprudential co-pilot Mark Stern. They talk about why everyone on Twitter hates Mark (hint: people have strong feelings about Justice Alito’s recusal ethics), the labor case that was not as bad for unions as maybe could have been (but is still NOT GREAT), and Mark floats his theory that Supreme Court Justices just don’t want to go back to the office full time and that’s why we’re getting a dribble of decisions now… And might get a firehose of them later this month.
In this week’s Amicus Plus segment, we return to Washington DC and our Full Court Press live show at Sixth and I, where Mark and Dahlia were joined by Congressman Hank Johnson of Georgia’s 4th District. Rep. Johnson is the ranking member of the House Judiciary subcommittee that oversees the federal courts, including the Supreme Court. They talk court reform and modernizing the judiciary, and why term limits and court expansion are vital to both.
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Opening Arguments - OA753: Gonzalez v. Google: The Case That (Didn’t) Break The Internet (feat. Corbin Barthold)
Liz and Andrew break down the recent Supreme Court decisions in Gonzalez v. Google and Twitter v. Taamneh with help from Corbin Barthold.
Notes Section 230 - 47 U.S.C. § 230 https://www.law.cornell.edu/uscode/text/47/230
OA 698 https://openargs.com/oa698-will-clarence-thomas-break-the-internet-probably-not/
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SCOTUScast - Groff v. DeJoy – Post-Argument SCOTUScast
On April 18, the Court heard oral argument in Groff v. Dejoy and is set to address two issues concerning the protections provided employees who seek to practice their religious beliefs in the context of the workplace. The Court is considering whether to overrule the “more-than-de-minimis-cost” test for refusing religious accommodations under Title VII of the Civil Rights Act of 1964 established in Trans World Airlines, Inc. v. Hardison. Also at issue is whether burdens on employees are sufficient to constitute “undue hardship on the conduct of the employer’s business” for the employer under Title VII.
Gerald Groff, a Christian who due to his religious convictions treated Sundays as a sabbath and thus did not work on those days, worked for the U.S. Postal Service in Pennsylvania. Although his sabbath-taking was not a problem at the beginning of his tenure with the USPS, following a 2013 agreement with Amazon, USPS began to provide service on Sundays and holidays. This meant that postal workers now had to work Sundays. Initially, Groff was able to avoid working Sundays by trading shifts with co-workers, but that eventually became untenable as co-workers were not willing or available to trade, resulting in Groff being scheduled for Sunday shifts he could not work due to his convictions. Following disciplinary action for missed shifts, and facing termination, Groff chose to resign. He sued USPS for refusing to accommodate his religious beliefs and practices as required by Title VII. The Third Circuit, following Hardison, ruled in favor of USPS, citing as sufficient to constitute the “undue hardship” test the burden placed on Groff’s coworkers who had to take more Sunday shifts and lessened workplace morale.
Join us to hear a breakdown of the oral argument!
Featuring:
Hiram Sasser, Executive General Counsel, First Liberty Institute
Gerald Groff, a Christian who due to his religious convictions treated Sundays as a sabbath and thus did not work on those days, worked for the U.S. Postal Service in Pennsylvania. Although his sabbath-taking was not a problem at the beginning of his tenure with the USPS, following a 2013 agreement with Amazon, USPS began to provide service on Sundays and holidays. This meant that postal workers now had to work Sundays. Initially, Groff was able to avoid working Sundays by trading shifts with co-workers, but that eventually became untenable as co-workers were not willing or available to trade, resulting in Groff being scheduled for Sunday shifts he could not work due to his convictions. Following disciplinary action for missed shifts, and facing termination, Groff chose to resign. He sued USPS for refusing to accommodate his religious beliefs and practices as required by Title VII. The Third Circuit, following Hardison, ruled in favor of USPS, citing as sufficient to constitute the “undue hardship” test the burden placed on Groff’s coworkers who had to take more Sunday shifts and lessened workplace morale.
Join us to hear a breakdown of the oral argument!
Featuring:
Hiram Sasser, Executive General Counsel, First Liberty Institute
SCOTUScast - Percoco v. United States – Post-Decision SCOTUScast
On May 11, the Supreme Court issued its ruling in Percoco v. United States.
Justice Scalia once commented “[t]hough it consists of only 28 words, the [honest services] statute has been invoked to impose criminal penalties upon a staggeringly broad swath of behavior.”
In this case, the Court is asked to decide if a private citizen who holds no elective office or government employment owes a fiduciary duty to the general public sufficient to be convicted of honest-services fraud if they have informal “influence” over government decisions.
Join us to hear from Gary Lawkowski, who is counsel of record for an amicus brief submitted on behalf of Citizens United, Citizens United Foundation, and the Presidential Coalition in Percoco v. United States, and who will break down the decision's reasoning and implications.
Featuring:
Gary Lawkowski, Counsel at Dhillon Law Group
Justice Scalia once commented “[t]hough it consists of only 28 words, the [honest services] statute has been invoked to impose criminal penalties upon a staggeringly broad swath of behavior.”
In this case, the Court is asked to decide if a private citizen who holds no elective office or government employment owes a fiduciary duty to the general public sufficient to be convicted of honest-services fraud if they have informal “influence” over government decisions.
Join us to hear from Gary Lawkowski, who is counsel of record for an amicus brief submitted on behalf of Citizens United, Citizens United Foundation, and the Presidential Coalition in Percoco v. United States, and who will break down the decision's reasoning and implications.
Featuring:
Gary Lawkowski, Counsel at Dhillon Law Group
Opening Arguments - OA752: Ticket, Boarding Pass… Weight Check??
After discussing some breaking news, Liz and Andrew break down that viral "hey, are the airlines forcing passengers to step on scales before boarding the plane" story. Then, the duo update you on the impeachment of Texas AG Ken Paxton.
In the Patreon bonus, Andrew gets angry as we talk about the latest maneuvering by the guy who sold out his country for Donald Trump, Lt. Gen. Michael Flynn.
Notes Mata v. Avianca - Motion for Extension of Time Granted in Part, Denied in Part https://storage.courtlistener.com/recap/gov.uscourts.nysd.575368/gov.uscourts.nysd.575368.38.0.pdf
New Zealand Civil Aviation Act of 1990 https://legislation.govt.nz/act/public/1990/0098/latest/DLM214687.html
United States v. Virginia, 518 U.S. 515 (1996) https://scholar.google.com/scholar_case?case=1428365285620704265
State v. Loomis, 881 N.W.2d 749 (Wis. 2016) https://scholar.google.com/scholar_case?case=3222116451721963278
Paxton Articles of Impeachment https://capitol.texas.gov/tlodocs/88R/billtext/pdf/HR02377I.pdf#navpanes=0
Senate Resolution Impeachment https://legiscan.com/TX/text/SR735/2023
ProPublica article on COMPAS https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing
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SCOTUScast - Samia v. United States – Post-Argument SCOTUScast
On March 29, 2023, the Supreme Court heard oral argument in Samia v. United States. The Court considered whether the admission of a codefendant’s redacted out-of-court confession that incriminates the defendant due to its content violates the Confrontation Clause of the Sixth Amendment.
Join us as we break down and analyze how oral argument went before the Court.
Featuring:
Robert McBride, Partner-in-Charge, Northern Kentucky, Taft Stettinius & Hollister LLP
Join us as we break down and analyze how oral argument went before the Court.
Featuring:
Robert McBride, Partner-in-Charge, Northern Kentucky, Taft Stettinius & Hollister LLP
SCOTUScast - United States v. Hansen – Post-Argument SCOTUScast
On March 27, the Supreme Court heard oral argument in United States v. Hansen. At issue in Hansen is whether 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), a federal criminal statute that prohibits encouraging or inducing unlawful immigration for commercial or financial benefit sometimes termed “the encouragement provision,” violates the First Amendment.
Helamen Hansen operated an advising service for undocumented immigrants who wanted to pursue U.S. citizenship. Under the encouragement provision, Hansen was convicted of two counts of encouraging or inducing illegal immigration for financial gain (along with other federal crimes). He challenged those convictions, contending the law is facially overbroad. The Ninth Circuit agreed, vacating his convictions on those counts.
Hansen follows on the heels of another case with similar questions. Back in 2020, in United States v. Sinening-Smith, the Supreme Court reversed a Ninth Circuit decision that attempted to strike down the encouragement provision on the grounds the decision attempted to address an issue that was outside of the issue before the court. Hansen now brings those same constitutional issues to the fore.
Please join us to hear the oral argument broken down and analysed.
Featuring:
Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland
Helamen Hansen operated an advising service for undocumented immigrants who wanted to pursue U.S. citizenship. Under the encouragement provision, Hansen was convicted of two counts of encouraging or inducing illegal immigration for financial gain (along with other federal crimes). He challenged those convictions, contending the law is facially overbroad. The Ninth Circuit agreed, vacating his convictions on those counts.
Hansen follows on the heels of another case with similar questions. Back in 2020, in United States v. Sinening-Smith, the Supreme Court reversed a Ninth Circuit decision that attempted to strike down the encouragement provision on the grounds the decision attempted to address an issue that was outside of the issue before the court. Hansen now brings those same constitutional issues to the fore.
Please join us to hear the oral argument broken down and analysed.
Featuring:
Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland