Leah and Kate break down the major arguments in the presidential immunity and subpoena cases as well as the major (?) social media and supporter updates for the podcast! They also discuss McGirt v. Oklahoma and the ministerial exemption cases. And enforcing the Voting Rights Act too (of course).
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Today's episode marks a milestone for the show: we're going to file an amicus curiae brief in the Michael Flynn case. Find out exactly how & why we're doing this!
We begin, however, with a brief update in the various emoluments cases, including an update on the two orders released this morning by the 4th Circuit en banc.
After that it's time to dig into all the developments in the Flynn litigation that will lead to the filing of Opening Arguments' first amicus brief!
Then, it's time for #T3BE, featuring next week's guest, Andrew Seidel!
None! If you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com.
Show Notes & Links
The last time we broke down the emoluments clause cases was in Episode 361. You can check out the two orders released this morning by the 4th Circuit en banc (the first one is the lengthy discussion).
On May 7, 2020, the Supreme Court released the decision in United States v. Sineneng-Smith. By a vote of 9-0, the judgment of the U.S. Court of Appeals for the Ninth Circuit was vacated and the case remanded. Although every member of the Court joined Justice Ginsburg's opinion, Justice Thomas also issued a concurring opinion indicating his doubt about the validity of the overbreadth doctrine. To discuss the cases, we have Brian M. Fish, Special Assistant, United States Attorney, Baltimore, Maryland. As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
On May 5, 2020, the Supreme Court heard oral argument in United States Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., a case which considers whether the First Amendment bars enforcement of a funding-related federal policy requirement not only against domestic organizations but also their foreign affiliates. The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 authorized the appropriation of billions of dollars to fund efforts by nongovernmental organizations to combat HIV/AIDS around the world. The Act provides, however, that none of these funds may be used by an organization “that does not have a policy explicitly opposing prostitution and sex trafficking.” 22 U.S.C. §7631(f). In its 2013 decision in Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., the Supreme Court held that this “Policy Requirement” violated the First Amendment, by compelling as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program. Respondents are domestic organizations that carry out HIV/AIDS-related aid work, including activities undertaken through legally distinct foreign affiliates. As the Supreme Court’s decision in Agency for Int’l Development did not address foreign affiliates specifically, the federal government has continued to apply the Policy Requirement to them. The affiliates object that, while they do not condone prostitution, neither can they satisfy the Policy Requirement because their HIV/AIDS work necessarily involves them with the activities of sex-worker communities abroad. The affiliates, therefore, challenged the Policy Requirement as applied to them and the district court entered a permanent injunction in their favor. A divided panel of the U.S. Court of Appeals for the Second Circuit affirmed, concluding that the logic of the Supreme Court’s Agency for Int’l Development decision extended to foreign affiliates and not just domestic non-governmental organizations. The federal government thereafter sought certiorari and the Supreme Court agreed to consider whether the First Amendment bars enforcement of the Policy Requirement with respect to legally distinct foreign entities operating overseas that are affiliated with respondents. To discuss the case, we have Casey Mattox, Senior Fellow of Free Speech and Toleration at the Charles Koch Institute and Krystal B. Swendsboe, Associate at Wiley Rein LLP. As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
We begin, however, with a bit more in-depth analysis about the nonjusticiability doctrine and how it might affect the Supreme Court's decision in the Mazars and Deutsche Bank subpoena cases -- which are being heard today by the Supreme Court!
Then, it's time for our in-depth interview with Allison where we talk about discrimination against atheists, including a deep dive into the actual research that shows how atheists are treated in society -- even among educated peers.
After all that, it's time for the answer to #T3BE 177 involving a noxious factory next to a residence and mini-golf. Can Thomas keep up his winning streak? There's only one way to find out!
On May 4, 2020, the U.S. Supreme Court heard argument in United States Patent and Trademark Office v. Booking.com B.V., a case presenting the question whether the addition by an online business of a generic top-level domain (“.com”) to an otherwise generic term can create a protectable trademark. In 2011 and 2012, Booking.com sought trademark protection for its web address name, “Booking.com”--but the U.S. Patent and Trademark Office (PTO) rejected the application. “Booking” was either generic and not protectable, the PTO stated, or else a descriptive mark to which the addition of “.com” was insufficient to demonstrate the “secondary meaning” necessary for federal protection of a descriptive mark. Booking.com filed a civil action in federal district court to appeal the PTO rejection and prevailed: the district court held that “Booking.com” as a whole was a descriptive mark that had acquired secondary meaning; that is, it was sufficiently distinctive to establish a mental association in the mind of the relevant public between the proposed mark and the source of the product or service. The PTO in turn appealed, but a divided panel of the U.S. Court of Appeals for the Fourth Circuit affirmed the judgment of the district court. The U.S. Supreme Court thereafter granted the PTO’s cert petition to address whether--given that generic terms may not be federally registered as trademarks--the addition by an online business of a generic top-level domain (“.com”) to an otherwise generic term can create a protectable trademark. To discuss the case, we have Art Gollwitzer, partner at Michael Best & Friedrich LLP and Zvi Rosen, Visiting Scholar and Professorial Lecturer in Law at George Washington University School of Law. As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
In this jam-packed episode, Jaime and Melissa recap the Supreme Court’s first-ever telephonic arguments, delve into how three men advocated for or against contraceptive coverage for women, preview next week’s high-profile arguments, and recap some recent opinions. Whoa, it’s exhausting even just typing that.
Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025!
Dahlia Lithwick is joined by Susan Hennessey, national security analyst and executive editor of Lawfare to discuss the ramifications of the Justice Department’s decision to drop the case against Michael Flynn. Later in the show, Lithwick is joined by veteran Supreme Court watcher Linda Greenhouse to unpack the new format for Supreme Court arguments: a teleconference carried live on C-SPAN, with a close look at the birth control case you might have missed.
In the Slate Plus segment, Mark Joseph Stern on how Flushgate could affect post-pandemic openness at the Supreme Court and which justice is crushing the conference calls. Sign up for Slate Plus now to listen and support our show.
Today's episode updates you on all the recent goings-on at the Supreme Court, including the advent of new, social-distancing-approved oral arguments, the Court's calendar, and today's 9-0 reversal in Kelly v. U.S., the Bridgegate case. Oh, and while we're at it, we also take on two lengthy Andrew Was (Sort of) Wrong segments! Phew!
We begin with a discussion of the new procedures for SCOTUS oral arguments, and give an apology to Clarence Thomas, who's now engaged and asking questions after decades of silence on the bench. After that, it's time to take a look at the SCOTUS calendar where we check out some suspicious timing regarding the non-release of the Title VII cases as well as 10 pending gun control cert petitions.
Then, it's time for a deep dive into Kelly v. U.S., which we last covered in Episode 232. Andrew thought the 3rd Circuit's analysis of "property" was plausible in that episode... and just got reversed 9-0 by a unanimous Supreme Court. Whoops!
As long as Andrew Was Wrong, how about we check back in on Andrew Yang's lawsuit against the DNC, in which Yang (despite "not having a great case," according to Andrew in Episode 382) nevertheless managed to secure an injunction from the Southern District of New York. Find out where this case is headed, what's next, and why Andrew is STILL right, sort of....
Finally, Andrew Was... not wrong, exactly, but Flabbergasted that the American Bar Association reversed itself, finding Justin Walker "Well Qualified" for serving on the U.S. Court of Appeals for the D.C. Circuit. Andrew, on the other hand, continues to rate Walker "Not Qualified," as per Episode 289.
After all that, it's time for a brand-new #T3BE involving a nuisance plant next to a mini-golf park. Will Thomas's winning streak continue?
On Feb. 26, 2020, in a 9-0 decision, the Supreme Court decided Shular v. United States, rejecting the defense argument that Florida’s unique drug laws cannot be used to enhance a federal sentence. At issue was a federal statute known as the Armed Career Criminal Act (“ACCA”). ACCA imposes a mandatory 15-year sentence on defendants convicted of federal firearms-related felonies if they have 3 or more prior convictions for “serious drug offenses” or “violent felonies.” In 2017, local law enforcement officers executed a search warrant at the Florida home of Eddie Shular who was the target of a drug trafficking investigation being conducted by the Drug Enforcement Administration (“DEA”). During the search, the officers seized a firearm from a bedroom closet. Because Shular was a convicted felon, he was charged under federal law with the crime of being a felon in possession of a firearm (18 USC section 922(g)(1)). He pled guilty to that offense and because he had more than three prior convictions for serious drug offenses, he was sentenced to the mandatory minimum of 15 years in prison under the applicable federal statute. He appealed his sentence arguing that because, under Florida law, none of his state convictions would qualify as a “serious drug offense” because the relevant state laws did not require that the government prove that Shular had “knowledge of the illicit nature of the substance,” and the Florida crimes were, therefore, broader than the generic drug offense analogs under federal law. The Eleventh Circuit upheld his conviction and sentence, rejecting the application of the “categorical approach” to defining “serious drug offenses, and holding that the ACCA definition “requires only that the predicate offense involves certain activities related to controlled substances.” The Supreme Court affirmed, holding that “serious drug offense” requires only that the state offense involves the conduct specified in the statute, and does not require that the state offense in question match certain generic drug offenses under federal law. The opinion was written by Justice Ginsburg. Justice Kavanaugh filed a concurring opinion. To discuss the case, we have Gregory A. Brower, Shareholder, Brownstein Hyatt Farber Schreck.
