ANNOUNCER: "SUPREME COURT: THE TERM IN REVIEW" A FEDERAL JUDICIAL CENTER PROGRAM FOR JUDGES, STAFF ATTORNEYS, AND LAW CLERKS. NOW FROM OUR STUDIO
IN WASHINGTON, D.C., HERE'S JOHN COOKE. HELLO. I'M JOHN COOKE, DEPUTY DIRECTOR OF THE FEDERAL
JUDICIAL CENTER. WELCOME TO THIS YEAR'S EDITION
OF "SUPREME COURT: THE TERM IN REVIEW," OUR ANNUAL LOOK AT
THE COURT'S DECISIONS MOST LIKELY TO AFFECT
THE DAY-TO-DAY WORK OF FEDERAL JUDGES. FOR MOST OF THE 2016 TERM, THE COURT OPERATED
WITH ONLY 8 JUSTICES UNTIL JUSTICE NEIL GORSUCH
WAS SWORN IN ON APRIL 10, 2017, AS THE 101st ASSOCIATE JUSTICE
OF THE COURT. DURING THE TERM,
THE COURT ISSUED 70 DECISIONS, INCLUDING 9
PER CURIAM DECISIONS. THE COURT DEALT WITH
IMPORTANT ISSUES REGARDING THE FIRST AMENDMENT
RELIGION CLAUSES THE FIFTH AMENDMENT'S
"TAKINGS CLAUSE," EQUAL PROTECTION, AND THE MEANING OF
SEVERAL FEDERAL STATUTES. WE'LL DISCUSS THOSE
AND MANY OTHER DECISIONS WITH OUR FACULTY. WE'RE AGAIN FORTUNATE TO BE
JOINED BY ERWIN CHEMERINSKY, DEAN OF THE UNIVERSITY OF
CALIFORNIA BERKELEY SCHOOL OF LAW, EVAN LEE OF THE HASTINGS
COLLEGE OF LAW IN SAN FRANCISCO, LAURIE LEVENSON OF LOYOLA
LAW SCHOOL IN LOS ANGELES, AND SUZANNA SHERRY OF VANDERBILT UNIVERSITY
LAW SCHOOL. BETH WIGGINS, FROM THE CENTER'S
RESEARCH DIVISION AND JIM CHANCE, FROM OUR
EDUCATION DIVISION WILL BE OUR MODERATORS. IN THE FIRST PART
OF THE PROGRAM, WE'LL EXAMINE CASES INVOLVING
THE FIRST, FOURTH, FIFTH, AND SIXTH AMENDMENTS,
AS WELL AS PATENT LAW AND REDISTRICTING. AFTER A SHORT BREAK,
WE'LL LOOK AT DECISIONS ADDRESSING BANKRUPTCY,
LIABILITY UNDER "BIVENS," SENTENCING GUIDELINES,
FEDERAL JURISDICTION, STANDING, AND THE MEANING
OF SEVERAL FEDERAL STATUTES. THE WRITTEN MATERIALS
THAT ACCOMPANY THIS PROGRAM AT FJC.DCN
INCLUDE AN OUTLINE WITH A SUMMARY OF EACH OF THE
DECISIONS THAT WE'LL DISCUSS, ALONG WITH AN APPENDIX WITH
SUMMARIES OF THE REMAINING CASES DECIDED BY THE COURT
THIS TERM. THE ONLINE OUTLINE ALSO CONTAINS
LINKS TO THE FULL OPINIONS. WE'LL BEGIN WITH A LOOK AT AN IMPORTANT
FIRST AMENDMENT DECISION. HELLO. I'M BETH WIGGINS. THE FIRST AMENDMENT
WAS FRONT AND CENTER THIS TERM WITH IMPORTANT
AND FAR-REACHING DECISIONS REGARDING BOTH THE FREE SPEECH
AND RELIGION CLAUSES. ONE OF THE MOST
ANTICIPATED DECISIONS "TRINITY LUTHERAN CHURCH
OF COLUMBIA, INC. V. COMER" WAS A FREE EXERCISE CASE
WITH AN INTERESTING MIX OF CONCURRENCES AND DISSENT. THE MISSOURI DEPARTMENT
OF NATURAL RESOURCES OFFERED STATE GRANTS TO HELP
PUBLIC AND PRIVATE SCHOOLS, NONPROFIT DAY CARE CENTERS,
AND OTHER NONPROFIT ENTITIES PURCHASE RUBBER
PLAYGROUND SURFACES MADE FROM RECYCLED TIRES. TRINITY LUTHERAN RUNS A
PRESCHOOL AND DAY CARE CENTER AT THE CHURCH FOR CHILDREN OF
ANY RELIGION OR OF NO RELIGION. THE CHURCH APPLIED FOR MONEY
TO RESURFACE ITS PLAYGROUND BUT WAS DENIED BASED ON AN
EXPRESS POLICY OF DENYING GRANTS TO ANY APPLICANT OWNED OR
CONTROLLED BY A CHURCH, SECT, OR OTHER RELIGIOUS ENTITY. THE DEPARTMENT BELIEVED IT WAS
COMPELLED TO FOLLOW THIS POLICY BY ARTICLE I, SECTION VII
OF THE MISSOURI CONSTITUTION. THAT SECTION PROVIDES,
IN PART, "THAT NO MONEY "SHALL EVER BE TAKEN
FROM THE PUBLIC TREASURY, "DIRECTLY OR INDIRECTLY, IN AID OF ANY CHURCH, SECT OR
DENOMINATION OF RELIGION..." THE CHURCH SUED THE DEPARTMENT,
ALLEGING THAT ITS POLICY VIOLATED THE "FREE EXERCISE
CLAUSE" OF THE FIRST AMENDMENT. THE DISTRICT COURT GRANTED
THE DEPARTMENT'S MOTION TO DISMISS THE COMPLAINT, AND THE COURT OF APPEALS
FOR THE 8th CIRCUIT AFFIRM, BUT THE SUPREME COURT
REVERSED THAT DECISION. ERWIN, ON WHAT GROUNDS? IT WAS A 7-2 DECISION,
WITH CHIEF JUSTICE ROBERTS WRITING FOR THE COURT. THE COURT SAID IT HAD
PREVIOUSLY HELD THAT THE DENIAL
OF A GENERALLY AVAILABLE BENEFIT TO RELIGIOUS INSTITUTIONS
BURDENS FREE EXERCISE OF RELIGION. THE COURT SAID WHENEVER
THE GOVERNMENT DISCRIMINATES AGAINST RELIGIOUS INSTITUTIONS,
IT MUST MEET STRICT SCRUTINY. HERE, THE COURT FOUND
THAT THE STATE OF MISSOURI FAILED TO MEET
STRICT SCRUTINY. THE COURT SAID PROVIDING
THIS KIND OF AID WOULD NOT VIOLATE
THE "ESTABLISHMENT CLAUSE" OF THE FIRST AMENDMENT. AND THE COURT SAID
MISSOURI'S INTEREST IN SKATING AS FAR
AWAY AS POSSIBLE FROM THE "ESTABLISHMENT CLAUSE"
WASN'T A COMPELLING INTEREST SUFFICIENT TO MEET
STRICT SCRUTINY. BETH: OK, SO, THE COURT
DISTINGUISHED THIS CASE FROM AN EARLIER CASE THAT THE
LOWER COURTS HAD RELIED ON IN RULING AGAINST THE CHURCH. SUZANNA: THAT'S RIGHT.
THAT WAS THE 2004 CASE OF "LOCKE V. DAVEY." IN "LOCKE,"
THE STATE OF WASHINGTON HAD REFUSED TO ALLOW
A SCHOLARSHIP STUDENT TO USE STATE FUNDS
TO TRAIN FOR THE MINISTRY. AND THE COURT HERE DISTINGUISHED
"LOCKE" FROM THIS CASE BY SAYING THAT IN "LOCKE,"
THE STATE'S DECISION THERE WAS BASED NOT ON DAVEY'S
RELIGIOUS CHARACTER, THAT IS, ON WHO HE WAS, BUT ON HIS CHOICE
OF PROFESSION-- THAT IS, ON WHAT
HE WANTED TO DO. AND HE--THE COURT SAID HERE,
THERE WAS NO QUESTION THAT TRINITY LUTHERAN
WAS DENIED THE FUNDS BECAUSE OF WHAT THEY WERE--
A CHURCH. THE COURT ALSO SAID--
DISTINGUISHED "LOCKE V. DAVEY" BECAUSE IT INVOLVED TRAINING
FOR THE MINISTRY, AND THIS CASE INVOLVED
RESURFACING A PLAYGROUND. BETH: BUT THAT WAS ACTUALLY
A QUESTION IN THIS CASE, WASN'T IT? WHETHER THE MAJORITY OPINION
ACTUALLY WAS LIMITED TO RESURFACING OF THE PLAYGROUND. ERWIN: THAT'S ONE OF
THE MOST INTERESTING, AND I THINK FOR THE FUTURE,
IMPORTANT ASK TO THE DECISION. CHIEF ROBERTS ADDRESSED
THIS IN A FOOTNOTE. IT'S FOOTNOTE 3, AND I THINK
IT'S WORTH QUOTING HIS EXACT LANGUAGE, SO IMPORTANT
IN SUBSEQUENT LITIGATION. - MM-HMM.
- HE SAID, "THIS CASE INVOLVES
EXPRESS DISCRIMINATION "BASED ON RELIGIOUS IDENTITY "WITH RESPECT TO
PLAYGROUND SURFACING. "WE DO NOT ADDRESS
RELIGIOUS USE OF FUNDING OR OTHER FORMS
OF DISCRIMINATION." NOW, WHAT'S INTERESTING
IS ONLY 3 OTHER JUSTICES JOINED THAT FOOTNOTE-- JUSTICES KENNEDY,
ALITO, AND KAGAN. JUSTICES THOMAS AND GORSUCH,
WHO ARE OTHERWISE PART OF THE MAJORITY OPINION, POINTEDLY DID NOT JOIN
INTO THIS FOOTNOTE. FACT IS THOMAS AND GORSUCH--
EACH WROTE A SEPARATE OPINION SAYING THAT THEY INDICATED THEY'RE QUITE LIKELY TO WANT TO
OVERRULE "LOCKE V. DAVEY." SUZANNA: AND JUSTICE SOTOMAYOR
WROTE A STRONG DISSENT, WHICH WAS JOINED BY
JUSTICE GINSBURG, AND WHICH SHE ACTUALLY
DELIVERED FROM THE BENCH. WHAT SHE SAID IS,
THIS IS THE FIRST TIME IN THE COURT'S HISTORY
THAT THE COURT HAS EVER HELD THAT THE "CONSTITUTION"
REQUIRES--NOT JUST ALLOWS-- BUT REQUIRES A STATE TO PROVIDE
FUNDS DIRECTLY TO A CHURCH. SHE REVIEWED THE LONG HISTORY
OF STATE FUNDING OF RELIGION, POINTED OUT THAT
IT ENDED IN 1833, AND THAT 38 OTHER STATES HAVE PROVISIONS
IN THEIR CONSTITUTIONS SIMILAR TO THE ONES
IN THE MISSOURI CONSTITUTION THAT WAS AT ISSUE. HERE--AND SHE ALSO
POINTED OUT THAT THE COURT'S PRECEDENTS
HAVE REPEATEDLY WARNED AGAINST-- THAT DIRECT PAYMENTS TO CHURCHES WOULD VIOLATE THE
"ESTABLISHMENT CLAUSE." SO, WHAT DO YOU THINK
THE IMPLICATIONS, RAMIFICATIONS ARE GONNA BE? SUZANNA: WELL, I THINK WE'VE
SUGGESTED A NUMBER OF THINGS, AND THERE MAY BE SOME CHANGES
COMING TO THE RELIGION CLAUSES. FIRST, THERE IS
THE DISTINGUISHING OF "LOCKE V. DAVEY." AND AS ERWIN SUGGESTED, JUSTICE THOMAS
AND JUSTICE GORSUCH MIGHT BE WILLING
TO OVERRULE THAT CASE. JUSTICE THOMAS SAID THAT THE
COURT'S ENDORSEMENT IN "LOCKE" OF EVEN A MILD FORM OF
DISCRIMINATION TROUBLED HIM. AND JUSTICE GORSUCH SUGGESTED
THAT THE "LOCKE" DECISION MAY BE INDISTINGUISHABLE
FROM THIS CASE, IN WHICH CASE IT'S INCORRECT. I ALSO THINK THAT THE DEBATE
OVER FOOTNOTE 3 SUGGESTS A CERTAIN DISARRAY
IN THIS AREA. JUSTICE GORSUCH WORRIES
THAT IT MAY LEAD SOME TO READ THE DECISION
TOO NARROWLY. THAT'S WHY HE DIDN'T
WANT TO JOIN IT. AND AS HE SAYS, THE PRINCIPLES
OF THE FIRST AMENDMENT "FREE EXERCISE" CLAUSE DO NOT
PERMIT DISCRIMINATION AGAINST RELIGIOUS EXERCISE
ON THE PLAYGROUND OR ANYWHERE ELSE. ON THE OTHER HAND,
JUSTICE BREYER CONCURRED IN THE JUDGMENT ONLY BECAUSE
HE SAID HE COULD RELY ON THE PARTICULAR NATURE
OF THE PUBLIC BENEFIT HERE, THAT IS THE RESURFACING FUNDS, RATHER THAN ON ANY GENERAL
PRINCIPLE OF NONDISCRIMINATION. SO, FOR--PERHAPS FOR HIM, FOOTNOTE 3 DOESN'T
GO FAR ENOUGH. I THINK THIS IS GONNA LEAD TO
A GREAT DEAL OF LITIGATION. ANYTIME THE GOVERNMENT
PROVIDES A BENEFIT TO SECULAR PRIVATE INSTITUTIONS THAT IT DENIES TO
RELIGIOUS INSTITUTIONS, THE RELIGIOUS INSTITUTIONS
CAN SUE AND SAY THIS IS BURDENING THEIR
FREE EXERCISE OF RELIGION. WHAT COURTS ARE GONNA
HAVE TO DECIDE IS TO EACH PARTICULAR
FORM OF AID, IS IT MORE LIKE
"LOCKE V. DAVEY," OR IS IT MORE LIKE
"TRINITY LUTHERAN"? I THINK IT'S CLEAR
THAT THE GOVERNMENT CAN REFUSE AID IF PROVIDING
IT WOULD VIOLATE THE "ESTABLISHMENT CLAUSE"
OF THE FIRST AMENDMENT, BUT WHEN AID VIOLATES
THE "ESTABLISHMENT CLAUSE" IS ITSELF UNCLEAR. BETH: OK. BEFORE WE LOOK AT
OUR NEXT DECISION, I WANT TO MENTION THAT
IF YOU HAVE ANY QUESTIONS ABOUT THE OPINIONS
WE'RE DISCUSSING, YOU CAN E-MAIL THEM TO US AT THE ADDRESS AT
THE BOTTOM OF YOUR SCREEN. WE'RE GOING TO TAKE
A COUPLE OF MINUTES AT THE END OF EACH PANEL TO ANSWER ANY QUESTIONS
WE GET FROM YOU. ALL RIGHT, LET'S MOVE ON. FREE SPEECH HAD
IMPORTANT VICTORIES IN THE SUPREME COURT
THIS TERM, AND ALL WERE
UNANIMOUS DECISIONS. THE FIRST OF THESE
WAS "MATAL V. TAM." THE COURT FOUND THAT SECTION
1052(a) OF THE LANHAM ACT, WHICH PROHIBITS THE
REGISTRATION OF TRADEMARKS THAT MAY DISPARAGE OR BRING
INTO CONTEMPT OR DISREPUTE ANY PERSON, LIVING OR DEAD, VIOLATED THE "FREE SPEECH
CLAUSE" OF THE FIRST AMENDMENT. THIS CASE WAS BROUGHT BY A ROCK
BAND OF ASIAN-AMERICAN MUSICIANS WHO WANTED TO TRADEMARK
THEIR BAND'S NAME--THE SLANTS. "SLANT," OF COURSE,
IS A DEROGATORY TERM DESCRIBING PEOPLE
OF ASIAN DESCENT. THE BAND'S MEMBERS SAID
THEY WANTED TO RECLAIM THE TERM AND DRAIN IT OF ITS
DENIGRATING FORCE. THE PATENT & TRADEMARK
OFFICE, OR PTO, DENIED THE BAND'S
TRADEMARK APPLICATION UNDER SECTION 1052(a),
AND THE LOWER FEDERAL COURTS UPHELD THAT DECISION. I SAID THE DECISION
WAS UNANIMOUS, BUT, SUZANNA, IT WASN'T
THAT SIMPLE, WAS IT? SUZANNA: NO, IT WASN'T.
THE HOLDING WAS UNANIMOUS. 8-0, WITHOUT JUDGE GORSUCH--
JUSTICE GORSUCH'S PARTICIPATION, BUT THERE WERE A NUMBER
OF CONCURRENCES AND SOME DISAGREEMENT
OVER THE REASONING. DIFFERENT JUSTICES SIGNED ON
TO DIFFERENT PARTS OF THE MAJORITY OPINION. JUSTICE ALITO WROTE
THE MAJORITY OPINION, AND HE MADE IT ABSOLUTELY CLEAR
THAT GOVERNMENT ATTEMPTS TO CENSOR SPEECH,
EVEN OFFENSIVE SPEECH, BECAUSE OF ITS VIEWPOINT,
WOULD NOT BE TOLERATED. HE SAID IT WAS A BEDROCK
FIRST AMENDMENT PRINCIPLE THAT SPEECH MAY NOT
BE BANNED ON THE GROUND THAT IT EXPRESSES IDEAS
THAT OFFEND. HIS OPINION WENT ON TO REJECT
THE GOVERNMENT'S ARGUMENT THAT TRADEMARKS ARE A FORM
OF GOVERNMENT SPEECH. THE SLANTS' CHOICE
TO USE THAT TERM WAS PRIVATE SPEECH,
AND HE SAID THAT IF TRADEMARKS WERE CONSIDERED
GOVERNMENT SPEECH, THE GOVERNMENT WOULD BE
BABBLING PRODIGIOUSLY AND INCOHERENTLY. JUSTICE ALITO ALSO ADDRESSED
OTHER ARGUMENTS THAT THE GOVERNMENT
PUT FORWARD. FOR INSTANCE,
THE GOVERNMENT SAID, WE SHOULD REGARD THIS
AS COMMERCIAL SPEECH, AND GOVERNMENT REGULATION
OF COMMERCIAL SPEECH HAS TO MEET A LOWER LEVEL
OF SCRUTINY. JUSTICE ALITO SAID EVEN IF WE REGARD THIS
AS COMMERCIAL SPEECH, THE REGULATION IS STILL
UNCONSTITUTIONAL. HE SAID THE GOVERNMENT
CAN'T ENGAGE IN VIEWPOINT DISCRIMINATION WHEN IT REGULATES
COMMERCIAL SPEECH. THIS IS VIEWPOINT
DISCRIMINATION. THE GOVERNMENT ALSO
CLAIMED AN INTEREST IN THE ORDERLY FLOW
OF COMMERCE. AND JUSTICE ALITO SAID THIS DOESN'T MEET
AN IMMEDIATE SCRUTINY. THIS ISN'T NARROWLY TAILORED TO PREVENT INVIDIOUS
DISCRIMINATION. BETH: WELL, WE SAID THERE IS
MORE THAN ONE OPINION HERE. ERWIN: JUSTICE KENNEDY HERE
WROTE A SEPARATE OPINION, JOINED BY JUSTICES GINSBURG,
SOTOMAYOR, AND KAGAN. JUSTICE KENNEDY WANTED TO
STRESS THIS REGULATION IS A VIEWPOINT DISCRIMINATION. IF THE BAND HAD CHOSEN A TITLE THAT WAS FAVORABLE
TO ASIAN-AMERICANS, THEY COULD HAVE
REGISTERED THE TRADEMARK. BUT IT WAS DEROGATORY
TO ASIAN-AMERICANS. THEY COULDN'T. AND JUSTICE KENNEDY
WANTED TO STRESS THAT VIEWPOINT DISCRIMINATION
IS VIRTUALLY NEVER ALLOWED UNDER THE FIRST AMENDMENT BECAUSE IT OPENS THE DOOR TO
TOO MUCH GOVERNMENT CENSORSHIP. BETH: SO, WHAT ARE
THE IMPLICATIONS FOR THE LOWER FEDERAL
COURTS HERE? ERWIN: THIS IS ONE
OF THE FIRST INSTANCE IN AMERICAN HISTORY
WHERE THE SUPREME COURT HAS EVER FOUND A PROVISION
OF TRADEMARK LAW OR ANY INTELLECTUAL
PROPERTY LAW TO VIOLATE
THE FIRST AMENDMENT. ALL COPYRIGHT AND TRADEMARK LAW
IS ABOUT REGULATING SPEECH. I THINK THIS IS GONNA OPEN
THE DOOR TO MORE CHALLENGES. FOR INSTANCE, THERE'S A
PROVISION IN THE LANHAM ACT THAT PROHIBITS REGISTRATION
OR TRADEMARKS IF THEY'RE SCANDALOUS. THAT, TOO, IS GONNA BE
SUBJECTED NOW TO A CHALLENGE. BUT MAYBE THE LARGEST
SIGNIFICANCE OF THE CASE IS GONNA BE THAT ALL 8 JUSTICES
SO EMPHATICALLY SAID THE GOVERNMENT NEVER
CAN REGULATE SPEECH JUST BECAUSE IT'S OFFENSIVE, EVEN IF IT'S
VERY DEEPLY OFFENSIVE. SUZANNA: I AGREE. I THINK
THAT'S VERY IMPORTANT, AND I THINK WE MAY ALSO SEE
A MINOR MODIFICATION OF THE DOCTRINE
ON COMMERCIAL SPEECH. IF YOU PUT TOGETHER
ALL OF THE OPINIONS, IT SEEMS AS IF
COMMERCIAL SPEECH WILL BE SUBJECT TO
STRICT SCRUTINY, NOT INTERMEDIATE SCRUTINY, IF IT IS BASED ON
VIEWPOINT DISCRIMINATION. BETH: OK. LET'S MOVE ON
TO OUR NEXT DECISION, "PACKINGHAM V. NORTH CAROLINA." THIS CASE INVOLVED
A NORTH CAROLINA LAW THAT MADE IT A FELONY
FOR A REGISTERED SEX OFFENDER TO ACCESS A COMMERCIAL
SOCIAL NETWORKING WEBSITE, WHERE THE SEX OFFENDER KNOWS THAT THE SITE PERMITS
MINOR CHILDREN TO BECOME MEMBERS OR TO CREATE
OR MAINTAIN PERSONAL WEB PAGES. PACKINGHAM WAS CONVICTED
OF TAKING INDECENT LIBERTIES WITH A MINOR WHEN
HE WAS 21 YEARS OLD AND IS A REGISTERED
SEX OFFENDER. AFTER GETTING A PARKING TICKET
QUASHED BY A JUDGE, PACKINGHAM WENT ON FACEBOOK
AND POSTED THE MESSAGE "GOD IS GOOD." HE WAS INDICTED UNDER
THE NORTH CAROLINA LAW FOR GOING ON A WEBSITE
WERE MINORS CAN BE PRESENT. HE WAS CONVICTED AND GIVEN
A SUSPENDED SENTENCE. THE QUESTION BEFORE
THE COURT WAS WHETHER THE NORTH CAROLINA LAW
VIOLATED THE FIRST AMENDMENT'S "FREE SPEECH" CLAUSE. I'VE ALREADY SAID THIS WAS
A WIN FOR FREE EXPRESSION, SO WE KNOW HOW THE COURT
CAME DOWN ON THIS QUESTION. ERWIN, WHAT WAS ITS REASONING? ERWIN: THE COURT WAS
UNANIMOUS IN RESULT, THOUGH SOMEWHAT
DIVIDED IN REASONING, HERE, JUSTICE KENNEDY
WROTE FOR A MAJORITY. JUSTICE KENNEDY, IN WRITING
FOR THE MAJORITY HERE, TALKED ABOUT HOW THE INTERNET
IS SUCH AN IMPORTANT PLACE FOR COMMUNICATION. HE SAID IN ORDER
FOR SPEECH TO EXIST, THERE HAS TO BE A PLACE, AND
THE INTERNET IS A UNIQUE MEDIUM. HE SPOKE OF HOW
7 OUT OF 10 AMERICANS ARE ON SOME FORM
OF SOCIAL MEDIA. HE SAID THERE'S MORE PEOPLE
ON FACEBOOK ACROSS THE WORLD THAN THE TOTAL POPULATION
OF NORTH AMERICA. HE SAID EVEN IF THIS IS REGARDED
AS A CONTENT NEUTRAL REGULATION OF SPEECH AND SUBJECTED TO
INTERMEDIATE SCRUTINY, IT'S STILL UNCONSTITUTIONAL. HE TALKED ABOUT THE
TREMENDOUS BREADTH OF THE NORTH CAROLINA LAW. HE SAID THIS WOULD
KEEP PACKINGHAM FROM BEING ON AMAZON.COM,
OR THE "NEW YORK TIMES," OR "WebMD" BECAUSE ALL OF THESE
ARE INTERACTIVE SOCIAL MEDIA. BUT JUSTICE ALITO
WROTE A CONCURRENCE. IT WAS JOINED BY THE CHIEF
JUSTICE AND JUSTICE THOMAS. HE AGREED WITH THE RESULT
OF THE MAJORITY, BUT HE DISAPPROVED OF WHAT HE
CALLED THE BROAD LANGUAGE IN JUSTICE KENNEDY'S OPINION. HE SAID IT WAS UNDISCIPLINED
DICTA AND LOOSE RHETORIC, AND HE SAID IT FAILED TO
RECOGNIZE THE NEED THAT STATES HAVE TO REGULATE
SEXUAL PREDATOR BEHAVIOR ONLINE. BETH: WELL, ERWIN, HOW DO YOU
THINK JUSTICE... I MEAN, I THINK IT WAS--YEAH,
JUSTICE KENNEDY'S OPINION IS GONNA PLAY OUT
IN THE LOWER COURTS? I THINK THE GREATEST
SIGNIFICANCE OF JUSTICE KENNEDY'S OPINION, IT'S AN EMPHATIC DECLARATION
THAT THE INTERNET IS A UNIQUE MEDIUM
FOR COMMUNICATION. I THINK THIS MEANS THAT
ANY GOVERNMENT REGULATION OF SPEECH OVER THE INTERNET
WILL COME TO THE COURT WITH A STRONG PRESUMPTION
AGAINST ITS CONSTITUTIONALITY. SUZANNA: THAT'S RIGHT,
BUT I THINK THERE ARE SOME OTHER ISSUES THAT
MIGHT COME UP AS WELL. JUSTICE KENNEDY EQUATES THE
INTERNET WITH PUBLIC SIDEWALKS. SO DOES THAT MEAN THAT
THE PUBLIC FORUM DOCTRINE IS GOING TO APPLY IN FULL
TO THE--TO ATTEMPTS TO LIMIT ACCESS TO CYBERSPACE? HE ALSO WROTE THAT EVEN
CONVICTED CRIMINALS MIGHT RECEIVE LEGITIMATE
BENEFITS FROM THE INTERNET. WHAT DOES THAT TELL US
ABOUT ACCESS TO THE INTERNET FOR PRISONERS
WHO ARE IN JAIL? AND THE OPINION EVEN
ADDRESSES AN ISSUE THAT WASN'T BEFORE THE COURT. JUSTICE KENNEDY WROTE THAT
IT WAS TROUBLING THAT THE LAW IMPOSES SEVERE RESTRICTIONS
ON PERSONS WHO HAVE ALREADY SERVED THEIR SENTENCES. IS HE CALLING INTO QUESTION
SEX OFFENDER REGISTRIES OR THE LIMITATIONS ON WHERE
SEX OFFENDERS CAN LIVE OR WORK? I DON'T THINK THAT HE MEANT
TO RAISE ALL OF THESE ISSUES, BUT THOSE QUESTIONS
ARE OUT THERE NOW. BETH: OK. FINALLY, WE WANT TO TALK
ABOUT WHAT MIGHT BE THE MOST HIGH-PROFILE RULING
THE COURT HANDED DOWN THIS TERM. WE'VE SAVED IT FOR
THE END OF THIS PANEL BECAUSE ALTHOUGH
IT WAS ARGUED IN PART ON FIRST AMENDMENT GROUNDS, IT IS, IN A REAL SENSE,
SUI GENERIS. THE CASES ARE "TRUMP V. INTERNATIONAL REFUGEE
ASSISTANCE PROJECT" AND "TRUMP V. HAWAII," BETTER KNOWN AS
THE "TRAVEL BAN CASES." LET'S REVIEW SOME HISTORY BEFORE
WE DISCUSS WHAT THE COURT DID. ON JANUARY 27th, PRESIDENT TRUMP
ISSUED AN EXECUTIVE ORDER THAT SUSPENDED THE U.S.
REFUGEE PROGRAM FOR 120 DAYS; CAPPED THE NUMBER OF
YEARLY REFUGEES AT 50,000, INSTEAD OF 110,000; AND BARRED IMMIGRANTS FROM
7 DESIGNATED COUNTRIES FOR 90 DAYS. THE 9th CIRCUIT
COURT OF APPEALS UPHELD A PRELIMINARY INJUNCTION
AGAINST THE ORDER ON THE GROUNDS OF
RELIGIOUS DISCRIMINATION. THE PRESIDENT THEN ISSUED
A NEW EXECUTIVE ORDER, THE ONE NOW BEFORE
THE SUPREME COURT. LIKE THE ORIGINAL ORDER, IT SUSPENDS THE ENTIRE
REFUGEE PROGRAM FOR 120 DAYS AND CAPS THE TOTAL
NUMBER OF REFUGEES ADMITTED TO THE U.S. THIS YEAR
TO 50,000, DOWN FROM 110,000. IT ALSO BARS IMMIGRANTS
FROM SUDAN, SYRIA, IRAN, LIBYA, SOMALIA, AND YEMEN
FOR 90 DAYS. THE FIRST EXECUTIVE
ORDER, OR E.O., ALSO INCLUDED IRAQ,
BUT THE SECOND DOES NOT. HOWEVER, THE SECOND E.O.
DOES NOT EXCLUDE PEOPLE WHO HAVE THE LAWFUL RIGHT
TO BE IN THE U.S., SUCH AS THOSE WITH VISAS
OR THOSE HOLDING GREEN CARDS. THE 4th CIRCUIT COURT OF APPEALS
AFFIRMED IN AN INJUNCTION AGAINST THE SECOND
EXECUTIVE ORDER, CONCLUDING THAT IT WAS BASED ON
IMPERMISSIBLE RELIGIOUS ANIMUS. SOON THEREAFTER,
THE 9th CIRCUIT AFFIRMED A LOWER
COURT INJUNCTION THAT ALSO KEPT THIS E.O.
FROM GOING INTO EFFECT. THE 9th CIRCUIT, THOUGH,
RULED ON STATUTORY GROUNDS, SAYING THAT THE DISCRIMINATION
BASED ON NATIONALITY WAS UNJUSTIFIED AND
VIOLATED FEDERAL LAW. THE UNITED STATES GOVERNMENT ASKED FOR A STAY
OF THESE INJUNCTIONS AND ALSO ASKED FOR THE SUPREME
COURT TO GRANT REVIEW. SO, ERWIN, WHAT DID
THE SUPREME COURT DO? THE SUPREME COURT GRANTED REVIEW
IN BOTH OF THESE CASES AND PUT THEM ON THE ORAL
ARGUMENT CALENDAR FOR OCTOBER 2017. THE COURT ALSO PARTIALLY
LIFTED THE INJUNCTION TO ALLOW THE TRAVEL BAN,
IN PART, TO GO INTO EFFECT. THE SUPREME COURT SAID
THOSE WHO DO NOT HAVE A BONA FIDE RELATIONSHIP WITH
INDIVIDUALS OR INSTITUTIONS IN THE UNITED STATES
WILL STILL BE COVERED BY THE TRAVEL BAN, AND THE TRAVEL BAN CAN
GO INTO EFFECT AS TO THEM. BUT THOSE WHO DO HAVE
A BONA FIDE RELATIONSHIP WITH THE UNITED STATES,
THE INJUNCTION WILL REMAIN IN EFFECT AS A TRAVEL BAN, AND THEY WILL CONTINUE
TO BE ABLE TO COME TO THE UNITED STATES. AND THE COURT SAID
A BONA FIDE RELATIONSHIP IS A SITUATION WHERE THERE'S A
FORMAL, DOCUMENTED RELATIONSHIP THAT'S CREATED
IN THE ORDINARY COURSE. IT CAN'T BE A RELATIONSHIP
THAT'S CREATED FOR PURPOSE OF CIRCUMVENTING
THE TRAVEL BAN. WHAT THE COURT SAID
THAT IT WAS DOING HERE WAS BALANCING THE EQUITIES IN ORDER TO COME
TO THIS CONCLUSION. SUZANNA: THERE'S A NUMBER
OF INTERESTING ASPECTS TO THIS CASE. FIRST, OF COURSE, THE
TRADITIONAL CONSIDERATION IN DECIDING WHETHER TO ISSUE
AN INJUNCTION OR A STAY IS WHETHER THE PARTY
SEEKING IT IS LIKELY TO PREVAIL
ON THE MERITS. AND, IN FACT, 3 JUSTICES--
JUSTICES ALITO, THOMAS, AND GORSUCH--
DISSENTED, IN PART, BECAUSE THEY THOUGHT
THE GOVERNMENT WAS LIKELY TO PREVAIL
ON THE MERITS, AND THEREFORE THE STAY
SHOULD HAVE BEEN ISSUED IN FULL AND NOT JUST PARTLY. BUT THE MAJORITY SAID NOTHING
ABOUT THE MERITS OR ABOUT WHETHER THE GOVERNMENT
WAS LIKELY TO PREVAIL, WHICH MEANS WE DON'T HAVE
VERY MUCH INFORMATION ON HOW THE COURT--WHAT THE COURT
THINKS OF THE MERITS OR HOW THEY MIGHT DECIDE
THIS CASE OR ON WHAT GROUNDS. ALSO, THE COURT NEVER INDICATED
EXACTLY WHAT RIGHTS OR INTERESTS WERE AT STAKE FOR THOSE
WHO WERE CHALLENGING THE BAN. INSTEAD, AS ERWIN SAID,
THE COURT SPOKE OF THE EQUITIES AND THE RELATIVE BURDENS
ON THE PARTIES. TWO DAYS AFTER THE SUPREME COURT
HANDED DOWN THIS ORDER ON WEDNESDAY, JUNE 28th,
THE TRUMP ADMINISTRATION ISSUED GUIDELINES TO EMBASSIES AS TO HOW IT WAS GONNA DEFINE
A BONA FIDE RELATIONSHIP TO INDIVIDUALS OR INSTITUTIONS
IN THE UNITED STATES. AND IT'S WORTH LOOKING
TO THE CATEGORIES AS THE TRUMP ADMINISTRATION
DEFINED THEM. THEY SAID THEY WOULD FIND
A BONA FIDE RELATIONSHIP FOR PARENTS OR PARENTS-IN-LAW;
SPOUSES; CHILDREN; ADULT SONS-IN-LAW
AND DAUGHTERS-IN-LAW; SIBLINGS, WHOLE OR HALF;
AND STEP RELATIONSHIPS. BUT THEY SAID THERE'S NOT
A BONA FIDE RELATIONSHIP FOR GRANDPARENTS
AND GRANDCHILDREN AUNTS, UNCLES,
NIECES AND NEPHEWS, BROTHERS- AND SISTER-IN-LAWS, FIANCEES, OR OTHER
EXTENDED FAMILY. AFTER THAT, THE TRUMP
ADMINISTRATION ISSUED A CLARIFICATION
AND SAID IT WOULD FIND THAT FIANCEES WERE IN
A BONA FIDE RELATIONSHIP. ON JULY 13th, A FEDERAL
DISTRICT COURT IN HAWAII SAID THAT THE TRUMP ADMINISTRATION
HAD TOO NARROWLY INTERPRETED THE SUPREME COURT OPINION. THE HAWAII DISTRICT COURT
SAID, FOR INSTANCE, THAT GRANDPARENTS
AND AUNTS AND UNCLES ARE IN A BONA FIDE RELATIONSHIP. I HAVE TO SAY,
AS A GRANDPARENT, I STRONGLY AGREE WITH
HAWAII COURT HERE. [LAUGHTER] SUZANNA: I THINK THERE'S STILL
GONNA BE A LOT OF LITIGATION ABOUT THE GUIDANCE,
THE PRINCIPLES THAT THE TRUMP ADMINISTRATION
HAS PUT OUT BEYOND JUST WHAT
HAWAII HAS DONE. I THINK THERE'S ALSO ANOTHER
INTERESTING ISSUE TO WATCH, AND THAT IS WHEN
THE COURT GRANTED "CERT," THEY ORDERED THE PARTIES
TO ADDRESS THE QUESTION WHETHER THE TRAVEL--WHETHER THE
CHALLENGES TO THE TRAVEL BAN HAD BECOME MOOT ON JUNE 14th,
90 DAYS AFTER THE ISSUANCE OF A 90-DAY TRAVEL BAN. I THINK THAT THERE'S ALSO
A QUESTION OF WHETHER IT MIGHT BECOME MOOT
LATER THAN THAT. THE SECOND EXECUTIVE ORDER
REQUIRES THE GOVERNMENT TO REVIEW ITS PROCEDURES AND THE
PROCEDURES OF FOREIGN COUNTRIES TO DETERMINE WHETHER
THE IMMIGRATION POLICIES ARE WORKING WELL, AND
THE FOREIGN GOVERNMENTS ARE SUPPOSED TO RESPOND. ALL OF THAT,
INCLUDING THE RESPONSE, IS SUPPOSED TO TAKE PLACE
WITHIN 50 DAYS. AND, OF COURSE,
50 DAYS IS BEFORE THE COURT IS GOING TO HEAR IT
IN ORAL ARGUMENT. SO THAT MIGHT BECOME
MOOT AS WELL. BETH: SO, DEFINITELY
LOTS OF QUESTIONS, PROBABLY LOTS OF LITIGATION. WE'RE GONNA HAVE TO
WAIT AND SEE. I THINK WE HAVE ONE QUESTION. - WE HAVE A QUESTION--
- YEAH. FROM ONE OF OUR VIEWERS
CONCERNING PACKINGHAM. AND THE QUESTION IS,
"HOW WOULD THE CASE "AFFECT A PROHIBITION AGAINST
ACCESSING THE INTERNET FOR A CIVILLY COMMITTED
SEXUALLY VIOLENT PREDATOR?" ANYONE WANT TO TAKE THAT? SUZANNA: I THINK
AS ERWIN POINTED OUT, THAT WILL STILL COME
WITH A PRESUMPTION OF UNCONSTITUTIONALITY. AND THE QUESTION WILL BE
WHETHER THE STATE CAN SHOW THAT THERE IS
A COMPELLING INTEREST. AND I THINK A CIVILLY--
AN ACTUALLY CIVILLY COMMITTED SEXUAL PREDATOR, AS OPPOSED TO
SOMEONE WHO IS SIMPLY ON THE SEXUAL OFFENDERS LIST--
OR A REGISTRY-- I THINK THAT THE GOVERNMENT
MIGHT HAVE AN EASIER TIME SHOWING A COMPELLING INTEREST. ERWIN: I AGREE WITH SUZANNA. IF SOMEBODY IS ACTUALLY
CIVILLY COMMITTED, THEN THERE'S A SUBSTANTIAL
RESTRICTION OF LIBERTY, AND THEY'RE IN ESSENCE
TREATED LIKE PRISONERS, AND THE GOVERNMENT'S GONNA
BE ABLE TO RESTRICT ACCESS TO THE INTERNET, MUCH MORE THAN
THOSE IN THE GENERAL POPULATION. ALSO, I THINK IT'S
IMPORTANT TO EMPHASIZE THAT I THINK EVERY ONE
OF THE JUSTICES WHO PARTICIPATED
IN THE CASE SAID A STATE CAN KEEP THOSE WHO
ARE REGISTERED SEX OFFENDERS THAT ARE IN CONTACT TO MINORS
OVER THE INTERNET. THE PROBLEM WITH
NORTH CAROLINA LAW, IT'S SO MUCH BROADER THAN THAT. THANKS, ERWIN,
AND THANKS, SUZANNA. WE WILL BE LOOKING
AT OPINIONS ADDRESSING THE
FOURTH AMENDMENT NEXT. HELLO. I'M JIM CHANCE. IN AN UNUSUAL COINCIDENCE, ALL OF THE FOURTH AMENDMENT
CASES THIS TERM CAME TO THE COURT IN
THE CONTEXT OF CIVIL CASES SEEKING MONEY DAMAGES. WE LOOK AT 2 OF THEM. IN "MANUEL V. CITY OF JOLIET," ELIJAH MANUEL BROUGHT A CLAIM
BASED ON THE FOURTH AMENDMENT TO CONTEST THE LEGALITY
OF HIS PRETRIAL CONFINEMENT. ERWIN, WHAT WERE THE FACTS
IN THAT CASE? ERWIN: ELIJAH MANUEL
WAS A PASSENGER IN A CAR BEING DRIVEN BY HIS BROTHER. THE POLICE STOPPED THE CAR FOR
MAKING A TURN WITHOUT A SIGNAL. THE OFFICER ORDERED MANUEL
AND HIS BROTHER OUT OF THE CAR. THE OFFICER OBSERVED THAT MANUEL
HAD A VIAL THAT CONTAINED PILLS. THE OFFICER ASKED MANUEL
WHAT WAS IN THE VIAL. MANUEL SAID VITAMINS. THE OFFICER FELT HE HAD
HEARD THAT ONE BEFORE. HE THOUGHT THAT IT WAS ECSTASY
THAT WAS IN THE VIAL. HE DID A QUICK FIELD TEST
THAT CAME BACK NEGATIVE. NONETHELESS,
HE ARRESTED MANUEL, BELIEVING THEY WERE
ILLEGAL DRUGS. A TEST WAS DONE
AT THE STATION HOUSE, AND THE PILLS
CAME BACK NEGATIVE FOR ANY ILLEGAL SUBSTANCE. BUT THE OFFICER CONVINCED
A LAB TECHNICIAN TO LIE AND SAY THAT ONE OF THE PILLS
TESTED POSITIVELY FOR ECSTASY. THE GOVERNMENT
THEN WENT TO COURT AND GOT THE JUDGE
TO ISSUE AN ORDER THAT MANUEL BE DETAINED
IN CUSTODY PENDING A TRIAL FOR POSSESSION
OF ILLEGAL SUBSTANCES. THE ILLINOIS CRIME LAB
DID A DEFINITIVE TEST, AND IT TURNS OUT THESE
REALLY WERE VITAMINS. NONETHELESS, THE STATE DIDN'T
IMMEDIATELY RELEASE MANUEL. ALTOGETHER, HE WAS HELD
IN CUSTODY FOR 48 DAYS BEFORE HE WAS RELEASED. JIM: BUT WHAT WAS THE NATURE--
WHAT WAS THE CHARGE IN MANUEL'S CIVIL CASE
AGAINST THE CITY, LAURIE? LAURIE: WELL, MANUEL
BROUGHT A 1983 ACTION BOTH AGAINST
THE CITY OF JOLIET AND SOME OF THE
INDIVIDUAL OFFICERS SAYING THAT HIS
FOURTH AMENDMENT RIGHTS HAD BEEN VIOLATED
IN 2 WAYS: FIRST, BY ARRESTING HIM
AT THAT INITIAL STOP WITHOUT ANY REASON, AND SECOND, BY DETAINING HIM
IN POLICE CUSTODY FOR 48 DAYS BASED UPON
TOTALLY MADE UP EVIDENCE. JIM: WELL, HOW DID HE FARE
IN THE LOWER COURTS? NOT SO WELL. THE FEDERAL COURT ACTUALLY
DISMISSED THE SUIT AS TIME-BARRED,
BECAUSE HE FILED IT 2 YEARS AFTER HIS
RELEASE FROM CUSTODY. AND BECAUSE IT FOUND THAT
THAT PRETRIAL DETENTION AFTER THE JUDGE HAD
FOUND PROBABLE CAUSE COULD NOT BE THE BASIS
FOR A FOURTH AMENDMENT CLAIM, THE APPELLATE COURT
THEN AFFIRMED. JIM: WHAT DID THE
SUPREME COURT DO, ERWIN? ERWIN: THE SUPREME COURT
HAD 2 ISSUES BEFORE IT. FIRST, IS THERE A CAUSE OF
ACTION UNDER SECTION 1983 IN THE FOURTH AMENDMENT
FOR WRONGFUL DETENTION, ESPECIALLY WHERE A JUDGE
HAS APPROVED THE DETENTION? AND IF SO, SECOND, WHEN DOES
THE STATUTE OF LIMITATIONS BEGIN TO RUN? DOES THE STATUTE
OF LIMITATIONS ACCRUE WHEN THE PERSON IS
TAKEN INTO CUSTODY OR ONLY WHEN THE PERSON
IS RELEASED FROM CUSTODY? THE COURT ADDRESSED ONLY
THE FIRST OF THESE QUESTIONS. THE COURT RULED 6-2 THAT
THERE IS A CAUSE OF ACTION UNDER SECTION 1983
IN THE FOURTH AMENDMENT FOR WRONGFUL DETENTION, EVEN IF A JUDGE HAS
APPROVED DETENTION. BUT AS THE LATTER QUESTION,
THE COURT SAID THAT THE COURT OF APPEALS
HADN'T YET ADDRESSED IT, SO THE SUPREME COURT REMANDED IT
TO THE 7th CIRCUIT. I DO THINK THIS CASE
IS SIGNIFICANT BECAUSE IT'S GONNA PROVIDE
A CONSTITUTIONAL REMEDY FOR PEOPLE LIKE MANUEL WHO ARE HELD IN THIS UNLAWFUL
PRETRIAL DETENTION. THANKS.
IN OUR SECOND CASE, "COUNTY OF LOS ANGELES
V. MENDEZ," THE CIVIL COMPLAINT
COULD ONLY BE BROUGHT UNDER THE FOURTH AMENDMENT
BECAUSE OF THE 9th CIRCUIT'S SO-CALLED "PROVOCATION RULE." UNDER THAT RULE,
IF A POLICE VIOLATION OF THE FOURTH AMENDMENT
LEADS TO A SITUATION WHERE OFFICERS REASONABLY USE
FORCE THAT INFLICTS INJURIES, THEY CAN STILL BE HELD LIABLE
FOR THOSE INJURIES. ERWIN, HOW DID THE PROVOCATION
RULE COME BEFORE THE COURT? THE POLICE HAD AN ARREST
WARRANT FOR SOMEBODY BELIEVED TO BE ARMED
AND DANGEROUS. THEY THOUGHT THAT THE PERSON
WAS HIDING IN A HOUSE. POLICE WENT TO THE HOUSE,
AND THEY DID A SEARCH, EVEN THOUGH THEY DIDN'T HAVE
A SEARCH WARRANT FOR THE HOME. THEY DIDN'T FIND THE PERSON
THEY WERE LOOKING FOR. THERE WAS A SHACK
IN THE BACKYARD WITH REGARD TO THAT HOUSE. THE POLICE WENT TO THE SHACK
AND THEY ENTERED. THEY DIDN'T KNOCK AND ANNOUNCE,
AS THE FOURTH REQUIRES. THEY DIDN'T HAVE
A WARRANT TO ENTER. A MAN AND A WOMAN
IN BED IN THE SHACK. AND THE MAN IN THE BED
PICKED UP A BB GUN THAT LOOKED LIKE A RIFLE. AND THE POLICE IMMEDIATELY SHOT
BOTH THE MAN AND THE WOMAN AND INFLICTED VERY
SERIOUS INJURIES. LAURIE: AND THE FEDERAL
DISTRICT COURT FOUND THAT ALTHOUGH THE USE OF FORCE
WAS DEEMED REASONABLE, IN THE FACE OF WHAT THE OFFICERS
THOUGHT WAS A THREAT BY MENDEZ, WHEN IT APPLIED THE 9th CIRCUIT
PROVOCATION RULE, IT FOUND THAT THE OFFICERS
WERE NONETHELESS LIABLE FOR USING EXCESSIVE FORCE, BECAUSE THIS WHOLE NEED
FOR THE USE OF FORCE CAME BY THEIR INITIAL
FOURTH AMENDMENT VIOLATION, AND THE 9th CIRCUIT
UPHELD THAT RULING. JIM: WHAT DID THE SUPREME COURT
THINK OF THE PROVOCATION RULE? ERWIN: THE SUPREME COURT
REJECTED THE PROVOCATION RULE. THE SUPREME COURT SAID
THERE CANNOT BE LIABILITY FOR EXCESS OF FORCE WHEN THE USE OF FORCE
IS REASONABLE, BUT, THE SUPREME COURT SAID,
THERE CAN BE DAMAGES FOR FOURTH AMENDMENT VIOLATION, IF IT WAS SHOWN THAT THE HARMS
WERE PROXIMATELY CAUSED BY THE FOURTH AMENDMENT
VIOLATION. THE COURT HERE REMANDED THE CASE
TO THE 9th CIRCUIT TO DETERMINE WHETHER OR NOT THE INJURIES SUFFERED
BY MENDEZ AND HIS WIFE COULD BE SHOWN TO BE
PROXIMATELY CAUSED BY THE FOURTH AMENDMENT
VIOLATION. I THINK IT'S IMPORTANT TO NOTE
THE COURT EXPLICITLY SAID IT WASN'T GOING TO
ARTICULATE THE STANDARD FOR PROXIMATE CAUSE. LAURIE: WHAT THE COURT
DID SAY, HOWEVER, TO THE LOWER FEDERAL COURT
IS THAT THEY SHOULD REMEMBER THE PRECEDENT OF
"GRAHAM V. CONNOR," WHICH IS HAVING THE COURTS
LOOK AT THE REASONABLENESS FROM THE TOTALITY
OF CIRCUMSTANCES AND THE PERSPECTIVE OF A
REASONABLE OFFICER ON THE SCENE. THANKS, LAURIE, ERWIN. WE WILL BE RIGHT BACK. THE FIFTH AMENDMENT
TO THE "CONSTITUTION" PROTECTS A NUMBER
OF RIGHTS AND LIBERTIES. THIS TERM, THE COURT
HEARD CASES TESTING A BROAD RANGE OF THOSE. OUR FIRST DECISION,
"SESSIONS V. MORALES-SANTANA" CHALLENGED A PROVISION OF THE
IMMIGRATION AND NATIONALITY ACT, OR INA, FOR A VIOLATION
OF THE FIFTH AMENDMENT'S "DUE PROCESS" CLAUSE. A SECTION OF THE INA
PROVIDES U.S. CITIZENSHIP TO CHILDREN BORN ABROAD
TO AN UNWED U.S. CITIZEN PARENT AND A NON-CITIZEN PARENT IF THE CITIZEN PARENT
LIVED IN THE U.S. FOR A CERTAIN NUMBER OF YEARS
PRIOR TO THE CHILD'S BIRTH. UNDER THE LAW, UNWED
U.S. CITIZEN FATHERS OF FOREIGN-BORN CHILDREN MUST HAVE LIVED IN THE U.S.
FOR 5 YEARS PRIOR TO THE OVERSEAS BIRTH. BUT AN EXCEPTION FOR UNWED
U.S. CITIZEN MOTHERS OF SUCH CHILDREN REQUIRES THAT
THEY MUST HAVE ONLY LIVED IN THE U.S. FOR 1 YEAR
PRIOR TO GIVING BIRTH. MORALES-SANTANA WAS BORN
IN THE DOMINICAN REPUBLIC TO A FATHER WHO HAD
LEFT THE U.S. JUST 20 DAYS SHY OF MEETING
THE LEGAL REQUIREMENT FOR GRANTING HIS SON
U.S. CITIZENSHIP. MORALES-SANTANA
OPPOSED HIS REMOVAL TO THE DOMINICAN REPUBLIC BY ASSERTING THAT
THE DIFFERENT REQUIREMENTS FOR THE CHILDREN OF U.S.
CITIZEN FATHERS AND MOTHERS VIOLATED THE EQUAL PROTECTION
PRINCIPLE IMPLICIT IN THE FIFTH AMENDMENT'S
"DUE PROCESS" CLAUSE. SO, LAURIE,
WHAT DID THE COURT DECIDE? JUSTICE GINSBURG WROTE
FOR A UNANIMOUS COURT AND SAID THAT THE DIFFERENCE
BETWEEN THE TWO STANDARDS ACTUALLY DID VIOLATE
THE "EQUAL PROTECTION" CLAUSE AND WERE BASED UPON OUTDATED
GENDER STEREOTYPES. WHEN YOU HAVE GENDER
DISCRIMINATION, YOU HAVE TO HAVE
A HEIGHTENED SCRUTINY AND COMPELLING INTEREST
BY THE GOVERNMENT. AND IN THIS PARTICULAR CASE,
THEY HAD NOT MET THAT STANDARD. BETH: AND THE REMEDY, EVAN? EVAN: WELL, THAT'S THE PART
THAT DIDN'T WORK SO WELL FOR MORALES-SANTANA. THE COURT AGREED WITH HIM
ABOUT THE UNCONSTITUTIONALITY OF THE DIFFERENTIAL TREATMENT,
BUT IT DISAGREED WITH HIM ON HOW TO RESOLVE
THAT DIFFERENCE. SO, NORMALLY, WHEN AN EXCEPTION
IS IMPROPERLY EXTENDED TO ONE GROUP
AND DENIED TO ANOTHER, THE REMEDY IS TO EXTEND
THE EXCEPTION TO THE EXCLUDED GROUP. BUT HERE, THE COURT SAID
IT'S CLEAR THAT THE ORIGINAL CONGRESS
THAT ENACTED THIS LAW WOULDN'T HAVE WANTED
THAT EXTENSION TO BE MADE. INSTEAD, THAT CONGRESS
WOULD HAVE PREFERRED TO GIVE THE EXCEPTION
TO NOBODY AT ALL. SO UNTIL CONGRESS
ACTS TO THE CONTRARY, THE RULE THAT CURRENTLY
APPLIES TO CITIZEN FATHERS WILL APPLY TO CITIZEN
MOTHERS AS WELL. BETH: OK. FROM DUE PROCESS
NOW TO DOUBLE JEOPARDY. UNDER THAT CLAUSE OF
THE FIFTH AMENDMENT, THE ISSUE PRECLUSION PRINCIPLE MEANS THAT WHEN AN ISSUE
OF ULTIMATE FACT HAS ONCE BEEN DETERMINED
BY A VALID AND FINAL JUDGMENT, THAT ISSUE CANNOT AGAIN BE
LITIGATED BETWEEN THE SAME PARTIES IN ANY FUTURE LAWSUIT. IN "BRAVO-FERNANDEZ
V. UNITED STATES," JUAN BRAVO-FERNANDEZ
PAID A BRIBE TO HECTOR MARTINEZ-MALDONADO,
THEN A SENATOR SERVING THE COMMONWEALTH OF PUERTO RICO. THE BRIBE WAS NOT A CASH PAYMENT
BUT AN ALL-EXPENSES-PAID TRIP TO LAS VEGAS,
INCLUDING A $1,000 SEAT AT A PROFESSIONAL
BOXING MATCH. A FEDERAL GRAND JURY INDICTED
BOTH MEN FOR FEDERAL PROGRAM BRIBERY, CONSPIRACY TO
VIOLATE THE BRIBERY STATUTE, AND TRAVELING IN INTERSTATE
COMMERCE TO FURTHER THE VIOLATIONS OF THE BRIBERY
STATUTE AND VIOLATION OF THE TRAVEL ACT. SO, FOLLOWING A 3-WEEK TRIAL,
THE JURY CONVICTED BOTH MEN OF THE BRIBERY OFFENSE
BUT ACQUITTED THEM OF THE CONSPIRACY AND
TRAVEL ACT CHARGES. THE COURT OF APPEALS FOR
THE 1st CIRCUIT VACATED THE BRIBERY CONVICTION BECAUSE
OF AN ERROR IN HOW THE JURY WAS INSTRUCTED AND REMANDED THE
CASE FOR FURTHER PROCEEDINGS. THE TWO MEN ARGUED THAT THEY
COULD NOT BE RETRIED UNDER THE BRIBERY STATUTE BECAUSE THE
ISSUE PRECLUSION DOCTRINE PROHIBITED IT. SO EVAN, WHAT DO
THE SUPREME COURT THINK OF THEIR ARGUMENT? UH, THE COURT REJECTED IT. THE GOVERNMENT HAD ARGUED
THAT THIS CASE FELL UNDER THE COURT'S EARLIER DECISION
IN "UNITED STATES V. POWELL" WHICH RECOGNIZED
AN EXCEPTION TO THE ISSUE PRECLUSION DOCTRINE WHEN THE JURY
RETURNS VERDICTS THAT ARE IRRECONCILABLY
INCONSISTENT REGARDING WHATEVER ISSUE IS IN QUESTION. IN THIS CASE, THE JURY
HAD CONVICTED THE TWO MEN OF BRIBERY FOR THE TRIP TO
VEGAS BUT ACQUITTED THEM OF THE CONSPIRACY AND
TRAVEL ACT CHARGES WHICH WERE UNCONTESTED. BRAVO-FERNANDEZ
AND MARTINEZ-MALDONADO RESPONDED THAT THEIR CASE
WAS DISTINGUISHABLE FROM "POWELL" BECAUSE THEIR CONVICTION HAD BEEN VACATED
BY THE APPELLATE COURT, AND BEING VACATED COULDN'T BE
INCONSISTENT WITH ANYTHING. BUT THE COURT DISAGREED
WITH THAT AND FOUND "POWELL" CONTROLLING BECAUSE
THE VERDICT WAS VACATED FOR REASONS THAT WERE
UNRELATED TO THE UNDERLYING LOGIC OF THE ISSUE. JUSTICE GINSBURG WROTE THAT
THE BURDEN OF INVOKING THE ISSUE PRECLUSION DOCTRINE
IS ON THE DEFENDANTS. AND WHEN THERE'S NO WAY TO
KNOW WHY THE JURY ACQUITTED ON OTHER COUNTS, THEN THE
BURDEN ISN'T CARRIED. BETH: OK. IN ITS 1963 DECISION
IN "BRADY V. MARYLAND," THE COURT HELD THAT
THE GOVERNMENT VIOLATES THE "CONSTITUTION'S" DUE PROCESS
CLAUSE IF IT WITHHOLDS EVIDENCE THAT IS FAVORABLE TO
THE DEFENSE AND MATERIAL TO THE DEFENDANT'S
GUILT OR PUNISHMENT. IN "TURNER V. UNITED STATES," THE QUESTION WAS WHETHER
EVIDENCE WITHHELD BY THE GOVERNMENT IN A MURDER
TRIAL WAS MATERIAL TO THE DEFENDANT'S GUILT OR
PUNISHMENT UNDER "BRADY." EVAN, CAN YOU TELL
US ABOUT THIS CASE? THIS IS A VERY
FACT-INTENSIVE CASE INVOLVING A BRUTAL MURDER FOR WHICH
A LARGE GROUP OF PEOPLE WERE CONVICTED. THE PRINCIPAL EVIDENCE
OFFERED BY THE GOVERNMENT WAS TESTIMONY FROM TWO OTHER
CO-DEFENDANTS WHO CONFESSED TO THEIR PARTICIPATION IN
EXCHANGE FOR LENIENCY. THE GOVERNMENT PRESENTED
SEVERAL OTHER WITNESSES WHO CORROBORATED VARIOUS ASPECTS
OF THE TESTIMONY, AS WELL AS A VIDEOTAPE OF AN INTERVIEW
WITH ONE OF THE DEFENDANTS IN WHICH HE DESCRIBED IN
DETAIL HOW HE WAS PART OF THE GROUP THAT ASSAULTED
AND MURDERED THE VICTIM. BETH: OK, SO WHERE DOES
THE POSSIBLE "BRADY" MATERIAL COME IN HERE? LAURIE: WELL, BETH,
AFTER THE CONVICTIONS BECAME FINAL, IT EMERGED THAT
THE GOVERNMENT ACTUALLY HAD SEVERAL PIECES OF POSSIBLY
EXCULPATORY EVIDENCE THAT IT DIDN'T DISCLOSE. AND SOME OF IT MIGHT HAVE
ALLOWED THE DEFENDANTS TO ARGUE THAT SOMEONE ELSE,
NOT THIS GROUP, WAS RESPONSIBLE FOR THE HORRIBLE CRIME. THE COURT'S OPINION ACTUALLY
CONCEDES THAT THE EVIDENCE WAS FAVORABLE TO THE DEFENSE,
SO THE ONLY ISSUE IS WHETHER IT WAS MATERIAL. BY THAT, WE MEAN WAS IT
REASONABLY PROBABLE THAT THE DISCLOSURE WOULD HAVE
AFFECTED THE VERDICT? THE SUPREME COURT, WHEN IT
LOOKED AT THIS EVIDENCE SAID, WELL, IN THE CONTEXT OF THE
ENTIRE RECORD, IT'S PROBABLY TOO LITTLE, TOO WEAK TO MEET
THOSE "BRADY" STANDARDS; THAT SOME OF THIS EVIDENCE
WAS CUMULATIVE REGARDING THE GROUP ATTACK, AND THAT ALTHOUGH THE
SUPREME COURT DOES NOT CHANGE THE "BRADY" STANDARD BY THIS
CASE, IN HOLDING THAT THEY DIDN'T MEET THE STANDARD,
IT SUGGESTS THAT IT WILL BE VERY DIFFICULT IN CASES OF
THEORIES OF ALTERNATIVE PERPETRATORS TO PERHAPS MEET
THE STANDARD EVEN WHEN THE EVIDENCE IS POTENTIALLY
EXCULPATORY. THANKS. BEFORE WE MOVE ON TO OUR
FINAL DECISION IN THIS PANEL, JUST A REMINDER TO EMAIL US
ANY QUESTIONS YOU HAVE AT THE ADDRESS AT THE
BOTTOM OF THE SCREEN. OK, OUR FINAL
FIFTH AMENDMENT DECISION INVOLVES THE "TAKINGS CLAUSE" WHICH GUARANTEES THAT
PRIVATE PROPERTY WILL NOT BE TAKEN FOR PUBLIC USE
WITHOUT JUST COMPENSATION. THERE ARE TWO KINDS OF
TAKINGS UNDER THE CLAUSE. THE FIRST IS A DIRECT
APPROPRIATION OF PROPERTY, AND THE SECOND IS CALLED
A REGULATORY TAKING. THE LATTER IS WHEN A GOVERNMENT
REGULATION REDUCES SO MUCH OF THE ECONOMIC
VALUE OF A PROPERTY. THAT IS, IT HAS MADE IT
FOR ALL PRACTICAL PURPOSES WORTHLESS TO THE OWNER. "MURR V. WISCONSIN" WAS
A REGULATORY TAKINGS CASE. HERE THE MURRS HAD BOUGHT
TWO SEPARATE BUT ADJACENT PIECES OF PROPERTY ALONG THE
ST. CROIX RIVER IN THE 1960s. THEY HELD THE LOTS IN SEPARATE
OWNERSHIP AND BUILT A SMALL RESIDENTIAL CABIN
ON ONE OF THEM. WHEN THEY TRANSFERRED THE
LOTS TO THEIR 4 CHILDREN, A LOCAL ORDINANCE MERGED THE
OWNERSHIP OF THE TWO LOTS WITHOUT THE
CHILDREN'S KNOWLEDGE. 10 YEARS LATER, THE MURRS'
CHILDREN DECIDED TO MOVE THE CABIN TO A DIFFERENT PLACE ON
ITS LOT AND SELL THE OTHER LOT TO FINANCE THAT PROJECT. BUT NOW THEY FOUND OUT THE LAW
CONSIDERED THE TWO LOTS TO BE MERGED AND ONLY AVAILABLE FOR
SALE AS ONE PIECE OF PROPERTY. THEY CHALLENGED THE LAW AS
AN UNCONSTITUTIONAL TAKING. EVAN, WHAT WAS THE COURT'S
THINKING ON THIS ISSUE? A 5-3 MAJORITY NOTED
THAT THERE ARE TWO TESTS FOR WHETHER A REGULATORY
TAKING HAS OCCURRED. AS YOU SAID EARLIER,
A REGULATION THAT DENIES ALL ECONOMICALLY BENEFICIAL OR
PRODUCTIVE USE OF THE LAND WILL REQUIRE COMPENSATION. BUT A REGULATION THAT IMPEDES
THE USE OF THE PROPERTY WITHOUT DEPRIVING THE OWNER OF
ALL ECONOMICALLY BENEFICIAL USE WILL STILL CONSTITUTE
A TAKING BASED ON A COMPLEX OF FACTORS, WHICH INCLUDE
THE ECONOMIC IMPACT OF THE REGULATION ON THE
CLAIMANT, THE EXTENT TO WHICH THE REGULATION HAS INTERFERED WITH DISTINCT INVESTMENT-BACKED
EXPECTATIONS, AND THEN THE CHARACTER
OF THE GOVERNMENT ACTION. NOW A CENTRAL DYNAMIC OF THE
COURT'S TAKINGS JURISPRUDENCE IS FLEXIBILITY, THAT IS TO SAY
A RECOGNITION OF THE NEED TO BALANCE TWO COMPETING GOODS. ON THE ONE HAND, THERE IS THE
INDIVIDUAL'S RIGHT TO EXERCISE FREEDOMS THAT ARE AT THE CORE
OF OWNING PRIVATE PROPERTY. ON THE OTHER HAND, THERE'S THE
GOVERNMENT'S POWER TO ADJUST RIGHTS FOR THE PUBLIC GOOD. LAURIE: AND EVAN, AS YOU SAID,
IN STRIKING THIS BALANCE, THE COURT GAVE SOME GUIDANCE
THAT SAID YOU HAVE TO COMPARE THE VALUE TAKEN FROM
THE PROPERTY BY THE REGULATION TO THE VALUE THAT REMAINS
IN THE PROPERTY AS A WHOLE, NOT JUST PART OF THE PROPERTY. AND AGAIN, WE HAVE TO LOOK
AT A NUMBER OF FACTORS. THE COURT POINTED TO HOW WAS
THE LAND TREATED UNDER STATE AND LOCAL LAWS, THE PHYSICAL
CHARACTERISTICS OF THE LAND, AND THE PROSPECTIVE VALUE
OF THE REGULATED LAND. AND THE COURT MUST DETERMINE
WHETHER REASONABLE EXPECTATIONS ABOUT THE PROPERTY OWNERSHIP
WOULD LEAD A LANDOWNER TO ANTICIPATE THAT
HIS PROPERTY WOULD BE TREATED AS ONE PARCEL
OR SEPARATE TRACKS. THE TEST IS AN OBJECTIVE ONE. AND THE SPECIFIC ISSUE IN THIS
CASE IS WHAT IS THE PROPER UNIT OF THE PROPERTY AGAINST
WHICH TO ASSESS THE EFFECT OF THE GOVERNMENT REGULATION? SO I'M SURE THE MOST
IMPORTANT QUESTION TO THE MURRS WAS, DID
THE COURT FIND IT UNCONSTITUTIONAL TAKING? LAURIE: NO, IT DID NOT. IT SAID, IN APPLYING THESE
FACTORS TO THE MURRS' PROPERTY, THE COURT DECIDED
THAT THE LAND SHOULD BE TREATED AS ONE UNIT. IT SAID THAT WAS THE RIGHT
APPROACH BECAUSE, IN WISCONSIN STATE LAW, IT WAS
TREATED AS ONE PARCEL. THAT THE LANDS WERE ACTUALLY
CONTIGUOUS AND TOGETHER HAVE PHYSICAL CHARACTERISTICS OF
A SINGLE LOT; AND, THAT THEIR LOCATION, THE MURRS COULD HAVE
ANTICIPATED THAT THE PUBLIC REGULATION MIGHT HAVE AFFECTED
THEIR USE OF THE PROPERTY. THE COURT ALSO SAID THAT WHILE
THE MURRS COULD NOT SELL THE TWO LOTS DISTINCTIVELY AND
SEPARATELY, THAT THERE WERE BENEFITS IN HAVING IT
TOGETHER BOTH BY THE USE OF THE PROPERTY BEING INTEGRATED
AND BY PRIVACY RIGHTS AS WELL. SO THE BOTTOM LINE IS THAT THE
COURT FOUND THAT THE PROPER DENOMINATOR FOR DETERMINING
THE EFFECT OF THE REGULATION IN THIS CASE WAS THE VALUE
OF THE LOTS TOGETHER. YEAH, THERE WAS A DISSENT HERE
BY THE CHIEF JUSTICE JOINED BY JUSTICES THOMAS AND ALITO. THEY DIDN'T DISAGREE WITH THE
HOLDING IN THE CASE, BUT THEY DID REJECT THE MAJORITY'S
MULTI-FACTOR TEST FOR FINDING A REGULATORY TAKING. AND THEY SAID THEY THOUGHT THAT
THE "TAKINGS CLAUSE" PROTECTS PRIVATE PROPERTY RIGHTS AS STATE
LAW CREATES AND DEFINES THEM. AND THEN THEY WROTE THAT
THE MAJORITY'S NEW DEFINITION OF PRIVATE PROPERTY WAS,
FOR THEM, TOO MALLEABLE AND UNDERMINED THE PROTECTION
OF THE "TAKINGS CLAUSE." BETH: HMM, INTERESTING.
THANKS, EVAN. THANKS, LAURIE. JIM WILL BE RIGHT BACK WITH
EVAN AND LAURIE IN A MINUTE TO LOOK AT OUR SIXTH
AMENDMENT DECISIONS. THE RIGHTS OF TRIAL
BY AN IMPARTIAL JURY IN AN OPEN COURT WITH THE
ASSISTANCE OF COUNSEL ARE AMONG THE MOST IMPORTANT
SAFEGUARDS OF INDIVIDUAL LIBERTY PROVIDED BY
THE "CONSTITUTION." AND THIS TERM, THE COURT HEARD
A NUMBER OF CASES ADDRESSING THESE GUARANTEES FOUND IN
THE SIXTH AMENDMENT. IN THE FIRST CASE,
"PENA-RODRIGUEZ V. COLORADO," THE COURT REVISITED
AN ISSUE IT HAS SPOKEN TO AT LEAST TWICE BEFORE. WHEN CAN JURY DELIBERATIONS BE
OPEN TO PUBLIC SCRUTINY AFTER A VERDICT HAS BEEN REACHED? PENA-RODRIGUEZ WAS CONVICTED
OF SEXUAL ASSAULT ON TWO TEENAGE GIRLS. AFTER THE VERDICT WAS
ANNOUNCED, TWO OF THE JURORS VOLUNTARILY TOLD DEFENSE
COUNSEL THAT ANOTHER JUROR HAD MADE DEROGATORY COMMENTS ABOUT
PENA-RODRIGUEZ BASED ON HIS MEXICAN HERITAGE. THE ALLEGEDLY OFFENDING JUROR
WAS REPORTED TO HAVE SAID THAT IN HIS EXPERIENCE AS A FORMER
LAW ENFORCEMENT OFFICER, MEXICAN MEN WERE RAISED TO
BELIEVE THEY COULD DO WHATEVER THEY WANTED WITH WOMEN
AND THAT 9 TIMES OUT OF 10 WHEN CHARGED WITH SEXUAL
ASSAULT THEY WERE GUILTY. THE COLORADO STATE TRIAL JUDGE
DENIED THE DEFENSE'S MOTION FOR A NEW TRIAL UNDER COLORADO
RULE 606(b) WHICH GENERALLY PROHIBITS A JUROR FROM
TESTIFYING AS TO ANY STATEMENT MADE DURING DELIBERATIONS. LAURIE, WHAT WAS THE SUPREME
COURT'S RESPONSE TO THIS? LAURIE: JIM, FIRST
LET ME SAY THAT THIS RULE THAT JURORS CANNOT LATER TESTIFY
ABOUT WHAT WENT ON DURING DELIBERATIONS IS REALLY
NOT UNIQUE TO COLORADO. MOST STATES HAVE
A RULE LIKE THIS. IN FACT, THE FEDERAL
RULES OF EVIDENCE HAVE A RULE LIKE THIS. AND IT'S REFERRED TO AS
THE "NO IMPEACHMENT RULE." IT'S ACTUALLY CONSIDERED
AN IMPORTANT PROTECTION FOR THE JURY SYSTEM. AND, AS YOU MENTIONED,
THE SUPREME COURT HAS TWICE REJECTED ATTEMPTS TO FIND
EXCEPTIONS--FIRST IN 1987, IN THE "TANNER" CASE, WHERE YOU
HAD A GROUP OF DRUNK JURORS DURING THE DELIBERATION,
AND THEN, AGAIN, IN 19-- 2014, I SHOULD SAY,
IN "WARGER V. SHAUERS," WHERE IT REJECTED
A PROPOSED EXCEPTION FOR JURORS LYING DURING VOIR DIRE. BUT HERE, THE SUPREME COURT
THEN FOUND WHEN A JUROR MAKES A CLEAR STATEMENT THAT HE OR
SHE IS USING RACIAL STEREOTYPE OR ANIMUS TO CONVICT
A CRIMINAL DEFENDANT, THEN THE SIXTH AMENDMENT REQUIRES THAT
THE "NO IMPEACHMENT RULE" GIVE WAY TO THE DEFENDANT'S
RIGHT TO A FAIR TRIAL. SO THIS IS A REALLY IMPORTANT
DECISION IN OPENING UP JURY DELIBERATIONS TO
SCRUTINY IN NEW WAYS. EVAN: YEAH, THE COURT SAID THAT
TO QUALIFY FOR THIS EXCEPTION, THE RACIALLY DISCRIMINATORY
STATEMENT MUST TEND TO SHOW THAT IT WAS A SIGNIFICANT
MOTIVATING FACTOR IN THE JURORS' VOTE TO
CONVICT, AND WHETHER THAT THRESHOLD SHOWING HAS BEEN
MADE IS GOING TO BE VESTED IN THE SOUND DISCRETION
OF THE TRIAL COURT BASED ON, YOU KNOW,
THE CIRCUMSTANCES AS THEY'RE PRESENTED
IN THAT CASE. AND THOSE CIRCUMSTANCES
INCLUDE THE CONTENT AND TIMING OF THE ALLEGED STATEMENTS
AND THE RELIABILITY OF THE PROFFERED EVIDENCE. THE COURT STRESSED THAT IT'S
THE SYSTEMIC QUALITY OF RACE DISCRIMINATION THAT MAKES THIS
EXTRAORDINARY, AND NOTABLY THE DECISION DOESN'T ADDRESS WHAT
PROCEDURES A COURT MUST FOLLOW WHEN CONFRONTED WITH A MOTION
FOR A NEW TRIAL BASED ON JUROR TESTIMONY OF RACIAL BIAS,
NOR DID THE MAJORITY DECIDE WHAT QUANTUM OF RACE
DISCRIMINATION EVIDENCE IS NECESSARY TO SET
A VERDICT ASIDE. AND I THINK ONE
OF THE BIGGEST QUESTIONS HERE IS,
WHAT OTHER KINDS OF DISCRIMINATION MIGHT BE
COVERED BY THIS RULING? WILL GENDER DISCRIMINATION
QUALIFY, WHAT TYPE
OF ETHNICITY CHALLENGES? WHAT ABOUT SEXUAL ORIENTATION? THOSE QUESTIONS
AREN'T ANSWERED YET. OUR NEXT DECISION
ALSO INVOLVED THE JURY IN A CRIMINAL TRIAL, BUT THIS
TIME THE QUESTION WAS WHETHER IT WAS A VIOLATION OF
THE RIGHT TO A PUBLIC TRIAL IF THE JUDGE CLOSED THE COURTROOM
TO THE PUBLIC DURING VOIR DIRE BECAUSE THERE WAS ONLY ENOUGH
ROOM FOR THE JURY VENIRE. THIS WAS "WEAVER
V. MASSACHUSETTS." DURING VOIR DIRE FOR 16-YEAR-
OLD KENTEL WEAVER'S MURDER TRIAL, THE POTENTIAL JURY
POOL WAS SO LARGE THAT NOT ALL OF THEM COULD FIT IN
AN OPEN COURTROOM. SO THE TRIAL JUDGE EXCLUDED
EVERYBODY BUT THE JURY POOL FROM THE COURTROOM,
INCLUDING WEAVER'S MOTHER AND HIS MINISTER. THIS HAPPENED BEFORE
THE SUPREME COURT DECIDED "PRESLEY V. GEORGIA"
IN 2010, RULING THAT THE RIGHT
TO A PUBLIC TRIAL ALSO EXTENDS TO
JURY SELECTION. BUT WEAVER'S LAWYER DIDN'T
OBJECT TO THE EXCLUSION DURING JURY SELECTION AND DID NOT
DISCUSS THE MATTER WITH WEAVER. THE STATE PRESENTED A STRONG
CASE OF WEAVER'S GUILT, THE JURY CONVICTED HIM. WEAVER FILED A MOTION FOR
A NEW TRIAL ARGUING THAT HIS TRIAL ATTORNEY HAD PROVIDED
INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT
TO THE COURTROOM CLOSURE. THE TRIAL COURT AGREED THAT
THERE HAD BEEN A VIOLATION OF WEAVER'S RIGHT TO A PUBLIC
TRIAL AND DETERMINED THAT DEFENSE COUNSEL HAD FAILED TO
OBJECT BECAUSE OF INCOMPETENCE, INEFFICIENCY,
OR INATTENTION. ON THE OTHER HAND, THE COURT
FOUND WEAVER HAD NOT PRESENTED ANY EVIDENCE OR A LEGAL
ARGUMENT ESTABLISHING PREJUDICE BECAUSE OF HIS
LAWYER'S POOR PERFORMANCE AND HELD, FOR THAT REASON,
THAT WEAVER WAS NOT ENTITLED TO A NEW TRIAL. BUT THERE WAS A PROCEDURAL
QUESTION AT THE HEART OF THIS, WASN'T THERE, EVAN? EVAN: THAT'S RIGHT. THE DENIAL OF AN OPEN TRIAL IS WHAT'S CALLED
A STRUCTURAL ERROR, WHICH MEANS THAT IT AFFECTS
THE FUNDAMENTAL FRAMEWORK IN WHICH THE TRIAL PROCEEDS
RATHER THAN SIMPLY BEING AN ISOLATED ERROR
IN THE TRIAL PROCESS. GENERALLY, WITH STRUCTURAL
ERRORS, THE DEFENDANT DOESN'T HAVE TO PROVE THAT THE CASE
WAS PREJUDICED IN ORDER TO GET RELIEF. BUT THERE'S A DISAGREEMENT
AMONG FEDERAL CIRCUIT COURTS AND SOME STATE COURTS OF LAST
RESORT WHETHER THE DEFENDANT HAS TO DEMONSTRATE PREJUDICE
WHEN THE STRUCTURAL ERROR IS NEITHER PRESERVED NOR RAISED
ON DIRECT REVIEW BUT IS INSTEAD RAISED LATER IN
A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL. SO THE JUSTICES GRANTED
CERTIORARI IN WEAVER TO RESOLVE THAT DISAGREEMENT,
BUT ONLY IN THE CONTEXT OF TRIAL COUNSEL'S FAILURE
TO OBJECT TO THE CLOSURE OF THE COURTROOM
DURING VOIR DIRE. JIM: AND, LAURIE,
WHAT DID THE JUSTICES DECIDE? LAURIE: WELL, THEY SAID
THAT ALTHOUGH THE RIGHT TO A PUBLIC TRIAL IS
STRUCTURAL, IT IS ALSO SUBJECT TO SOME EXCEPTIONS. AND VIOLATION OF THAT RIGHT
DOES NOT AUTOMATICALLY LEAD TO A FUNDAMENTALLY UNFAIR TRIAL
AND AUTOMATIC REVERSAL. IT CALLED IT A
STRUCTURAL ERROR BECAUSE OF THE DIFFICULTY OF ASSESSING
THE EFFECT OF THIS ERROR AND BECAUSE THE RIGHT ACTUALLY
PROTECTS SOME INTERESTS THAT DON'T BELONG TO THE DEFENDANT. BUT THE COURT SAID FAILING
TO RAISE THE ERROR EARLIER DEPRIVED THE TRIAL COURT OF
THE RIGHT AND ABILITY TO CURE THE VIOLATION OR EXPLAIN
THE REASONS FOR THE CLOSURE. YEAH. WHEN THE OBJECTION IS
RAISED LATER ON IN A CLAIM OF INEFFECTIVE ASSISTANCE OF
COUNSEL DURING COLLATERAL ATTACK, THE PETITIONER HAS TO
SHOW THAT THE ERROR LIKELY INFLUENCED THE OUTCOME OF THE
TRIAL OR THAT IT RENDERED THE TRIAL FUNDAMENTALLY UNFAIR. THE MAJORITY FOUND THAT
NEITHER OF THOSE WAS SATISFIED WITH RESPECT TO WEAVER. TWO MORE DECISIONS
DEALING WITH INEFFECTIVE ASSISTANCE OF COUNSEL. FIRST, "BUCK V. DAVIS." DUANE BUCK, AN AFRICAN-AMERICAN,
WAS CONVICTED OF CAPITAL MURDER
BY A TEXAS JURY. UNDER TEXAS LAW, THE JURY
COULD IMPOSE THE DEATH SENTENCE ONLY IF IT FOUND THAT
BUCK WAS LIKELY TO COMMIT ACTS OF VIOLENCE IN THE FUTURE. BUCK'S ATTORNEY CALLED
DR. WALTER QUIJANO, A COURT-APPOINTED
PSYCHOLOGIST, TO TESTIFY AS TO THAT QUESTION BASED ON A REPORT
DR. QUIJANO HAD WRITTEN AFTER EXAMINING BUCK. QUIJANO'S REPORT SAID THAT
BUCK WAS UNLIKELY TO POSE A DANGER IN PRISON, BUT ALSO
THAT BLACKS POSE AN INCREASED PROBABILITY OF VIOLENCE. EVAN, WAS THERE A PROCEDURAL
ISSUE IN THIS ONE? THERE WAS. IN DENYING A CERTIFICATE
OF APPEALABILITY TO BUCK, THE FIFTH CIRCUIT HAD HELD
THAT HE FAILED TO SHOW EXTRAORDINARY CIRCUMSTANCES. CHIEF JUSTICE ROBERTS, WRITING
FOR THE MAJORITY, HELD THAT THAT WAS REVERSIBLE ERROR
BECAUSE THE COURT OF APPEALS HAD EXCEEDED THE PROPER SCOPE
OF REVIEW FOR GRANTING THE CERTIFICATE OF APPEALABILITY. THE PROPER QUESTION,
WROTE CHIEF JUSTICE ROBERTS, WAS LIMITED TO WHETHER
THE DISTRICT COURT'S DENIAL OF RELIEF WAS DEBATABLE. REACHING THE EXTRAORDINARY
CONSEQUENCES INQUIRY EFFECTIVELY CONSTITUTED
A DECISION ON THE MERITS. AND SINCE THE COURT OF APPEALS
HAD EFFECTIVELY REACHED THE MERITS, THE SUPREME COURT
FOUND IT PROPER TO REACH THE MERITS AS WELL. JIM: AND WHEN IT DID THAT? LAURIE: WELL,
THE SUPREME COURT-- A MAJORITY HELD THAT
BUCK'S LAWYER HAD PROVIDED INEFFECTIVE ASSISTANCE OF
COUNSEL; THAT NO REASONABLE LAWYER DEFENDING A BLACK
PERSON WOULD, IN A PENALTY PHASE OF THAT TRIAL, CALL AN
EXPERT WHO WOULD PROPOSE TO TESTIFY THAT BLACK PEOPLE
ARE MORE DANGEROUS THAN THE GENERAL POPULATION. THE COURT ALSO FOUND PREJUDICE
IN THAT THIS TESTIMONY APPEALED TO A POWERFUL RACIAL
STEREOTYPE THAT BLACK PEOPLE ARE MORE VIOLENT. AND FOR THAT REASON, THE SUPREME
COURT REJECTED THE DISTRICT COURT'S CONCLUSION THAT
THE MENTION OF RACE DURING THE PENALTY PHASE WAS
SOMEHOW DE MINIMIS. AS THE CHIEF JUSTICE WROTE,
SOME TOXINS CAN BE DEADLY EVEN IN SMALL DOSES. THE COURT IN ERICK DAVILA'S
MURDER TRIAL PROPOSED A JURY INSTRUCTION TO WHICH
THE DEFENSE COUNSEL OBJECTED. THE COURT GAVE THE INSTRUCTION
ANYWAY AND THE JURY CAME BACK WITH A GUILTY VERDICT. ON APPEAL, DAVILA'S APPELLATE
LAWYER FAILED TO CHALLENGE THE COURT'S INSTRUCTION. LATER, DURING STATE HABEAS
PROCEEDINGS, DAVILA'S NEW LAWYER FAILED TO CHALLENGE
EITHER THE JURY INSTRUCTION OR THE FIRST APPELLATE LAWYER'S
FAILURE TO CHALLENGE THE INSTRUCTION ON DIRECT APPEAL. THESE WERE THE FACTS
IN OUR NEXT DECISION, "DAVILA V. DAVIS." EVAN, WHAT WAS THE QUESTION
BEFORE THE SUPREME COURT IN THIS ONE? WELL, TO GET TO THAT, WE FIRST
HAVE TO REVIEW SOME PRECEDENT. GENERALLY, A FEDERAL HABEAS
COURT REVIEWING A STATE COURT CONVICTION WILL NOT CONSIDER
CLAIMS THAT THE STATE COURT REFUSED TO HEAR BASED ON
AN ADEQUATE AND INDEPENDENT STATE PROCEDURAL GROUND. A STATE PRISONER CAN OVERCOME
THAT HURDLE IF HE OR SHE CAN ESTABLISH CAUSE TO EXCUSE
THE PROCEDURAL DEFAULT AND DEMONSTRATE THAT HE OR SHE
SUFFERED ACTUAL PREJUDICE FROM THE ALLEGED ERROR. BUT AN ATTORNEY ERROR DOESN'T
QUALIFY AS CAUSE TO EXCUSE A PROCEDURAL ERROR UNLESS
THE ERROR AMOUNTED TO CONSTITUTIONALLY INEFFECTIVE
ASSISTANCE OF COUNSEL. THE COURT RULED IN 1991
IN "COLEMAN V. THOMPSON" THAT BECAUSE
A PRISONER DOES NOT HAVE A CONSTITUTIONAL RIGHT
TO COUNSEL IN STATE POST-CONVICTION
PROCEEDINGS, INEFFECTIVE ASSISTANCE IN THOSE PROCEEDINGS DOESN'T
QUALIFY AS CAUSE TO EXCUSE A PROCEDURAL DEFAULT. BUT THE COURT LATER ANNOUNCED
A NARROW EXCEPTION TO THE "COLEMAN RULE." INEFFECTIVE ASSISTANCE
BY A PRISONER'S STATE POST-CONVICTION COUNSEL IS CAUSE TO OVERCOME
THE PROCEDURAL DEFAULT WHERE THE STATE
EFFECTIVELY REQUIRES A DEFENDANT TO BRING THAT
CLAIM FOR THE FIRST TIME IN STATE POST-CONVICTION
PROCEEDINGS RATHER THAN ON DIRECT APPEAL. SO THE QUESTION HERE,
IN "DAVILA V. DAVIS" WAS WHETHER THE COURT
SHOULD EXTEND THAT EXCEPTION TO ALLOW FEDERAL COURTS
TO CONSIDER INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL. UH, SO DID IT EXTEND
THE EXCEPTION, LAURIE? LAURIE: UH, NO, JIM.
IT DID NOT. THE MAJORITY REASONED THAT
THE RIGHT TO TRIAL COUNSEL IS REALLY THE KEY AND THAT THE
EFFECTIVENESS OF THAT COUNSEL CANNOT REALLY BE
ASSESSED UNTIL AFTER THE TRIAL IN THE POST-CONVICTION
PROCEEDINGS. IF POST-CONVICTION COUNSEL
DOESN'T RAISE THAT ISSUE, IT'S NOT GONNA GET REVIEWED. BUT THE 5-4 MAJORITY DID NOT
SEE CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL OF
APPELLATE COUNSEL AS POSING THE SAME RISK BECAUSE AT LEAST
ONE COURT--THE TRIAL COURT-- WILL HAVE CONSIDERED THE CLAIM
ASSUMING IT WAS PRESERVED ERROR. THE MAJORITY WAS ALSO AFRAID,
I THINK, OF OPENING THE FLOODGATES TO DEFAULT CLAIMS
OF APPELLATE INEFFECTIVE ASSISTANCE OF COUNSEL
WHERE IT THINKS THAT ONLY AN INFINITESIMALLY SMALL
NUMBER OF THOSE CASES WOULD ACTUALLY BE MERITORIOUS. JIM: THANKS. OUR FINAL DECISION
IS "McWILLIAMS V. DUNN." IT ADDRESSES WHAT KIND
OF MENTAL HEALTH EXPERT ASSISTANCE A STATE MUST GIVE
TO AN INDIGENT DEFENDANT. THIS WAS ESSENTIALLY THE SAME
QUESTION BEFORE THE COURT IN 1985, WHEN IT DECIDED
"AKE V. OKLAHOMA." ONE MONTH AFTER THE COURT
REACHED ITS DECISION IN "AKE," THE STATE OF ALABAMA CHARGED
McWILLIAMS WITH MURDER, SEEKING THE DEATH PENALTY. DEFENSE COUNSEL MADE
A PRETRIAL MOTION FOR A PSYCHIATRIC EVALUATION,
INCLUDING MENTAL CONDITIONS THAT WERE RELEVANT TO FINDING
MITIGATING CIRCUMSTANCES FOR THE PURPOSE OF SENTENCING
IN THIS CAPITAL CASE. DURING THE SENTENCING PHASE,
McWILLIAMS PRESENTED EVIDENCE OF MENTAL ILLNESS AND
MULTIPLE HEAD INJURIES. A PROSECUTION EXPERT SAID THERE
WAS NO EVIDENCE OF PSYCHOSIS. DEFENSE COUNSEL SUBPOENAED
MENTAL HEALTH RECORDS FROM THE STATE PRISON WHICH DID NOT
ARRIVE IN TIME FOR THE HEARING. THE JURY RECOMMENDED DEATH. AFTER THE HEARING, THE TRIAL
COURT GRANTED McWILLIAMS' MOTION FOR NEUROLOGICAL EXAMS. DR. GOFF, A NEUROPSYCHOLOGIST
EMPLOYED BY THE STATE DEPARTMENT OF MENTAL HEALTH,
EXAMINED McWILLIAMS AND FILED HIS REPORT TWO DAYS BEFORE
THE JUDICIAL HEARING. THE DAY BEFORE THE HEARING,
DEFENSE COUNSEL RECEIVED MORE RECORDS SHOWING THAT McWILLIAMS
WAS ON ANTI-PSYCHOTIC DRUGS. COUNSEL ASKED THE JUDGE FOR MORE
TIME TO GET AN EXPERT OPINION TO EVALUATE THE NEW MATERIAL,
BUT WAS GIVEN ONLY UNTIL 2 P.M. THAT AFTERNOON. THE COURT FOUND McWILLIAMS
WAS FEIGNING MENTAL ILLNESS AND SENTENCED HIM TO DEATH. THE QUESTION WAS WHETHER
McWILLIAMS RECEIVED THE HELP HE WAS ENTITLED TO UNDER
THE COURT'S DECISION IN "AKE." LAURIE, WHAT DID THE
SUPREME COURT DECIDE? THE MAJORITY FOUND THAT
THE TRIAL COURT'S RULING VIOLATED CLEARLY ESTABLISHED
FEDERAL LAW UNDER "AKE." THE DEFENDANT WAS,
1--INDIGENT, AND 2--HAD A MENTAL CONDITION
THAT WAS SERIOUSLY IN QUESTION. THE EASIEST WAY FOR A LOWER
COURT TO COMPLY WITH "AKE" IS TO PROVIDE THE DEFENSE WITH
A QUALIFIED EXPERT RETAINED SPECIFICALLY TO HELP
THE DEFENSE TEAM. BUT THE SUPREME COURT ACTUALLY
HELD OFF ON WHETHER THAT WAS REQUIRED SINCE McWILLIAMS
DIDN'T EVEN GET THE BASIC HELP THAT IS REQUIRED BY "AKE." EVAN: YEAH, SO JUST TO ECHO WHAT LAURIE SAID A LITTLE BIT,
THE COURT RULED THAT THE MINIMUM REQUIREMENT
HERE IS THAT AN INDIGENT CRIMINAL DEFENDANT RAISING
THESE KINDS OF ISSUES SHOULD GET A MENTAL HEALTH EXPERT
WHO'S AVAILABLE TO THE DEFENSE AND IS INDEPENDENT
OF THE PROSECUTION. THIS IS AN EXPERT WHO HAS
TO PROVIDE MORE THAN JUST AN EXAMINATION. HE OR SHE HAS TO BE AVAILABLE
TO ASSIST IN THE EVALUATION OF EVIDENCE, AND HAS
TO BE ABLE TO ASSIST IN THE PREPARATION AND
PRESENTATION OF THE DEFENSE. JIM: AND THERE WAS A DISSENT
IN THIS CASE, WASN'T THERE? LAURIE: YES, THERE WAS.
JUSTICE ALITO WROTE A DISSENT. HE WAS JOINED BY THE CHIEF
JUSTICE AND JUSTICES THOMAS AND GORSUCH. AND THEY SAID THAT "AKE"
DID NOT CLEARLY ESTABLISH THAT THE DEFENDANT IS ENTITLED TO
AN EXPERT WHO IS A MEMBER OF THE DEFENSE TEAM, ONLY THAT
HE'S ENTITLED TO SOME TYPE OF EXPERT APPOINTED BY THE
COURT, AND A NEUTRAL EXPERT SHOULD BE ENOUGH. THANKS. BETH: WE DO HAVE A QUESTION,
EVAN AND LAURIE. IT CONCERNS "DAVILA V. DAVIS,"
AND IT'S THIS. IT'S A BIT LONG,
SO I'M GONNA READ IT. IT'S "WHERE A STATE PRISONER
DEFAULTS HIS RECORD-BASED CLAIM "IN STATE COURT BY
NOT RAISING IT ON APPEAL, "UNDER THE PROCEDURAL DEFAULT
DOCTRINE, CAN 'DAVILA' BE READ "TO MEAN THAT A PRO SE PRISONER
CANNOT USE INEFFECTIVE "ASSISTANCE OF APPELLATE COUNSEL
AS A CAUSE FOR FAILING TO EXHAUST THE
CLAIM OR APPEAL?" EVAN: WELL, I MEAN, UNLESS
I'M MISSING SOMETHING IN THAT, I THINK IT DOES MEAN THAT.
I THINK-- LAURIE: I THINK IT SOUNDS
VERY MUCH LIKE THE CASE - THAT "DAVILA" WAS DECIDING.
- YEAH. NOW, YOU KNOW, INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIMS MIGHT COVER BOTH TRIAL COUNSEL OR AN APPELLATE COUNSEL,
SO THERE MAY BE SOMETHING ELSE - GOING ON HERE.
- YEAH. BUT THIS SOUNDS LIKE
JUST CLAIMING INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL MAY ACTUALLY - FORFEIT THE CLAIM.
- I AGREE. BETH: MM-HMM. RACE IS ALWAYS A CHARGED
TOPIC WHEN IT COMES BEFORE THE COURT. AND THIS TERM, IT AROSE AGAIN
IN THE CONTEXT OF VOTING. WE LOOK AT THAT NEXT. THIS TERM, THE COURT
DECIDED TWO CASES DEALING WITH THE ROLE OF RACE
IN DRAWING ELECTORAL DISTRICTS. WHETHER RACE CAN BE USED
TO DRAW THESE DISTRICTS IS STRAIGHTFORWARD IN CONCEPT BUT
IT'S COMPLICATED IN PRACTICE. THAT IS, DRAWING DISTRICTS
TO MAXIMIZE SAFE SEATS FOR THE POLITICAL PARTY THAT
CONTROLS THE LEGISLATURE, SO-CALLED POLITICAL
GERRYMANDERING, HAS NOT BEEN DECLARED UNCONSTITUTIONAL. RACIAL GERRYMANDERING
IS UNCONSTITUTIONAL. ERWIN, CAN YOU GIVE US SOME OF
THE CONTEXT BEHIND THIS ISSUE THAT MAKES IT SO COMPLICATED,
AS WELL AS THE TWO DECISIONS - SO COMPLICATED?
- SURE. IN THE EARLY 1990s,
IN CASES LIKE "SHAW V. RENO" AND "MILLER V. JOHNSON," THE SUPREME COURT SAID
IF THE GOVERNMENT USES RACE AS THE PREDOMINANT FACTOR
IN DISTRICTING INCLUDING TO BENEFIT MINORITIES, IT
MUST MEET STRICT SCRUTINY. ITS ACTION IS NECESSARY
TO ACHIEVE A COMPELLING GOVERNMENT PURPOSE. BUT IN "EASLEY
V. CROMARTIE" IN 2001, THE COURT SAID IF RACE
IS USED AS A PROXY FOR POLITICAL PARTIES,
IT'S THEN PERMISSIBLE. THAT CASE CAME FROM
NORTH CAROLINA. AFRICAN-AMERICANS
OVERWHELMINGLY VOTE DEMOCRATIC IN NORTH CAROLINA, AND THE
COURT SAID THE STATE COULD LOOK AT RACE FOR PURPOSE
OF PARTISAN GERRYMANDERING. BUT THAT THEN MEANT FOR THE
LAST 15 YEARS, COURTS HAVE BEEN CONFRONTED WITH SEEMINGLY
AN UNANSWERABLE QUESTION: IS IT RACE OR IS IT PARTY WHEN
INEVITABLY THEY'RE INTERLINKED? BETH: SO, SUZANNA, WAS THAT
THE STRUGGLE IN THIS CASE? SUZANNA: IT WAS THE
DIRECT QUESTION IN ONE OF THE CASES WE'RE GOING TO
DISCUSS AND THE BACKGROUND ISSUE IN THE OTHER. THE BACKGROUND CASE WAS "BETHUNE-HILL V. VIRGINIA
BOARD OF ELECTIONS," WHICH WAS ACTUALLY A PRETTY
STRAIGHTFORWARD MISAPPLICATION OF SUPREME COURT PRECEDENT. ACCORDING TO THE SUPREME COURT,
THE DISTRICT COURT JUST GOT IT WRONG IN THIS CASE. THE VIRGINIA LEGISLATURE HAD
CREATED 12 DISTRICTS WITH THE GOAL THAT EACH OF THOSE
DISTRICTS WOULD HAVE A BLACK VOTING AGE POPULATION
OF AT LEAST 55%. NOW, THE LOWER COURT FOUND
THAT RACE DID PREDOMINATE IN THE DRAWING OF ONE ELECTION
DISTRICT, BUT THAT IT WAS CONSTITUTIONAL BECAUSE THE
LEGISLATURE HAD GOOD REASON TO BELIEVE THAT IT WAS MEETING
A COMPELLING INTEREST IN COMPLYING WITH THE VOTING
RIGHTS, THE FEDERAL VOTING RIGHTS ACT. AS FOR THE OTHER 11 DISTRICTS,
THE DISTRICT COURT HELD THAT RACE DID NOT PREDOMINATE
IN DRAWING THE DISTRICTS BECAUSE THE DISTRICTS DID NOT
CONFLICT WITH TRADITIONAL NON-RACIAL PRINCIPLES
FOR DRAWING DISTRICTS. BETH: SO WHAT DID
THE SUPREME COURT DECIDE? SUZANNA: THE SUPREME COURT
REVERSED THE DISTRICT COURT AND REMANDED THE CASE BACK. THE COURT HELD THAT THE
QUESTION OF WHETHER RACE WAS THE PREDOMINANT CONSIDERATION
IN DRAWING DISTRICT LINES DOES NOT DEPEND AT ALL ON
WHETHER THOSE LINES DO OR DO NOT CONFLICT WITH
TRADITIONAL NON-RACIAL LINE-DRAWING PRINCIPLES. IF RACE IS THE PREDOMINANT
PURPOSE IN REDRAWING THE DISTRICT, THE GOVERNMENT
HAS TO MEET STRICT SCRUTINY REGARDLESS OF WHETHER
THERE'S A CONFLICT BETWEEN THE DISTRICTS THAT WERE DRAWN
AND TRADITIONAL PRINCIPLES OF DRAWING DISTRICT LINES. JUSTICE KENNEDY SAID
HERE THAT IT WAS CLEAR THAT RACE WAS THE
PREDOMINANT PURPOSE IN DRAWING THESE ELECTION LINES. AS SUZANNA POINTED OUT,
THE GOAL OF THE LEGISLATURE WAS TO CREATE DISTRICTS
WITH A 55% AFRICAN-AMERICAN POPULATION. BUT THE COURT DID NOT
DECIDE WHETHER THIS VIOLATED THE "CONSTITUTION." THE COURT REMANDED THE CASE BACK
TO THE 3-JUDGE FEDERAL COURT TO SEE WHETHER
STRICT SCRUTINY WAS MET. SUZANNA: ALTHOUGH THE COURT
DIDN'T MAKE ANY NEW LAW HERE, IT WAS JUST APPLYING
THE PRINCIPLES OF "SHAW AND MILLER
V. JOHNSON," AS ERWIN POINTED OUT. I THINK IT'S WORTH NOTING,
BECAUSE IT DOES POINT OUT THE UNDERLYING COMPLEXITY
OF THIS STANDARD, THAT IN THE DISCUSSION,
THE COURT WROTE THAT CONFLICT WITH TRADITIONAL REDISTRICTING
PRINCIPLES IS GOOD EVIDENCE OF PREDOMINANCE
OF RACIAL INTENT. AND, IN FACT,
IT MAY BE IMPOSSIBLE TO PROVE PREDOMINANCE WITHOUT A
CONFLICT WITH TRADITIONAL REDISTRICTING PRINCIPLES. AND, AS THE COURT SAID,
THE COURT ITSELF HAS NEVER FOUND PREDOMINANCE
WITHOUT, IN FACT, A CONFLICT WITH TRADITIONAL
PRINCIPLES OF REDISTRICTING. OK. LET'S GO TO
OUR NEXT DECISION. THE OTHER DECISION,
"COOPER V. HARRIS," AS SUZANNA SAID,
DEALS DIRECTLY WITH THE QUESTION OF HOW TO DECIDE IF
RACE WAS A PREDOMINANT FACTOR IN DRAWING ELECTION DISTRICTS. AND, IF IT WAS, WHETHER
THE CHALLENGER'S XIV AMENDMENT EQUAL PROTECTION
RIGHTS WERE VIOLATED. HERE, THE NORTH CAROLINA
LEGISLATURE REDREW TWO CONGRESSIONAL DISTRICTS,
DISTRICTS 1 AND 12. NEITHER DISTRICT HAD A
MAJORITY OF MINORITY VOTERS PRIOR TO THE 2010 CENSUS,
BUT BOTH DISTRICTS HAD ELECTED MINORITY CANDIDATES. WHEN THE LEGISLATURE REDREW
THE DISTRICTS, IT ADDED MANY MORE MINORITY VOTERS INTO THEM
MAKING THEM MAJORITY-MINORITY. SUZANNA, HOW DID NORTH CAROLINA
DEFEND ITS ACTIONS? IT DEFENDED ON TWO GROUNDS
ALTERNATIVELY. FIRST, IT ARGUED THAT EVEN
IF RACE WAS THE PREDOMINANT MOTIVE FOR DRAWING THE
DISTRICTS, IT WAS NARROWLY TAILORED TO COMPLY WITH
THE VOTING RIGHTS ACT, AND THEREFORE, THERE WAS A
COMPELLING GOVERNMENT INTEREST MEETING STRICT SCRUTINY. BUT ALTERNATIVELY, NORTH
CAROLINA ARGUED THAT RACE WASN'T THE PREDOMINANT
CONSIDERATION. THE PREDOMINANT CONSIDERATION
WAS POLITICS. THE LEGISLATURE, IT SAID,
WAS ENGAGED IN POLITICAL GERRYMANDERING--PACKING THE
DISTRICTS WITH DEMOCRATS-- NOT RACIAL GERRYMANDERING--
PACKING THE DISTRICTS WITH AFRICAN-AMERICANS. AND THE DISTRICT COURT REJECTED
BOTH OF THOSE ARGUMENTS. SO, ERWIN, WHAT DID
THE SUPREME COURT SAY? ERWIN: THE SUPREME COURT
HELD THAT THE USE OF RACE IN DRAWING THESE ELECTION
DISTRICTS VIOLATED EQUAL PROTECTION. AS THE DISTRICT WON, THE COURT
SAID IT WAS UNCONTESTED THAT RACE WAS THE
PREDOMINANT PURPOSE. AS SUZANNA POINTED OUT,
NORTH CAROLINA TRIED TO ARGUE THAT IT USED RACE TO AVOID
VIOLATING THE VOTING RIGHTS ACT. BUT THE COURT SAID IT WOULD
ASSUME THAT COMPLIANCE WITH THE VOTING RIGHTS ACT
WAS A COMPELLING INTEREST, BUT THAT IT WOULD BE GOOD REASON
TO BELIEVE THAT WITHOUT THE USE OF RACE, THERE WOULD BE
A VIOLATION OF THE VOTING RIGHTS ACT. AND THE COURT SAID HERE THERE'S
NO REASON TO BELIEVE THERE'D BE A VIOLATION OF THE
VOTING RIGHTS ACT HAD RACE NOT BEEN USED IN DISTRICTING. I THINK WHAT THE COURT SAID
IS EVEN MORE IMPORTANT AS TO THE OTHER DISTRICT,
DISTRICT 12. THERE, THE COURT SAID IT HAD
TO DEFER TO THE FACT-FINDING OF THE DISTRICT COURT
THAT RACE WAS THE PREDOMINANT PURPOSE. THE COURT SAID IT HAD NO
REASON TO BELIEVE THAT THE DISTRICT COURT DETERMINATION
HERE WAS CLEARLY ERRONEOUS. AND THEN JUSTICE KAGAN SAID IT
DOESN'T MATTER WHY RACE IS USED. IF RACE IS THE PREDOMINANT
PURPOSE, STRICT SCRUTINY HAS TO BE MET. HER LANGUAGE HERE, I THINK,
IS IMPORTANT. IT'S FOUND IN A FOOTNOTE,
AND I'D QUOTE IT. SHE SAYS, "THE SORTING OF
VOTERS ON THE GROUND OF THEIR "RACE REMAINS SUSPECT EVEN IF
RACE IS MEANT TO FUNCTION AS A PROXY FOR OTHER (INCLUDING
POLITICAL) CONSIDERATIONS." I THINK THIS SAYS IT NO
LONGER MATTERS WHETHER IT'S RACE OR PARTY. WHEN RACE IS THE PREDOMINANT
PURPOSE, STRICT SCRUTINY MUST BE MET. SUZANNA: I AGREE IN PART. IT'S CLEARLY THE MOST IMPORTANT
PART OF THE DECISION, AND I THINK IT WILL MAKE IT
EASIER TO CHALLENGE DISTRICTS WHERE--INVOLVING THE USE
OF RACE AS A PROXY FOR POLITICAL GERRYMANDERING. BUT GIVEN THAT RACE AND
POLITICS DO TRACK EACH OTHER IN MANY PLACES, I THINK
THERE'S STILL SOME QUESTIONS. FOR EXAMPLE, WHAT IF THE
LEGISLATURE SAYS FROM THE VERY BEGINNING, RATHER THAN AFTER
THE FACT AS IT DID HERE, THAT IT'S ENGAGED IN PARTISAN
POLITICAL GERRYMANDERING? IN OTHER WORDS, IT STATES
UPFRONT THAT IT'S TRYING TO KEEP AS MANY DEMOCRATS AS
POSSIBLE IN AS FEW DISTRICTS AS POSSIBLE. NOW THAT'S STILL LIKELY TO
HAVE THE EFFECT OF PACKING AFRICAN-AMERICANS
INTO A FEW DISTRICTS. BUT AT LEAST, UNDER THIS
DECISION, IT SEEMS TO BE CONSTITUTIONAL UNLESS
THE CHALLENGERS CAN SHOW, CAN PROVE THAT IT WAS RACE,
NOT POLITICS THAT AFFECTED THE DRAWING OF THE DISTRICTS. AND, IN FACT, AFTER THIS
DISTRICTING PLAN WAS REJECTED, NORTH CAROLINA PASSED A NEW
ONE IN WHICH THE LEGISLATURE SAID EXPLICITLY THIS IS
POLITICAL GERRYMANDERING, NOT RACIAL GERRYMANDERING,
AND THE DISTRICT COURT HELD IT TO BE A POLITICAL QUESTION. BETH: OK, SO WHAT DO YOU THINK
THE BOTTOM LINE IS GONNA BE OF THESE TWO DECISIONS FOR THE
LOWER COURTS WHO ARE GONNA HAVE TO APPLY THEM? ERWIN: FIRST, IF RACE IS
THE PREDOMINANT FACTOR IN DRAWING ELECTION DISTRICTS,
THE GOVERNMENT MUST MEET STRICT SCRUTINY. SECOND, THE COURT CONTINUES TO
ASSUME THAT COMPLYING WITH THE VOTING RIGHTS ACT IS A
COMPELLING INTEREST THAT NEEDS STRICT SCRUTINY. BUT THE GOVERNMENT HAS TO HAVE
A GOOD REASON TO BELIEVE THAT UNLESS IT CONSIDERED RACE, WE
VIOLATED THE VOTING RIGHTS ACT. AND THIRD, NO LONGER IS THERE
TO BE AN INQUIRY AS TO WHETHER IT'S ABOUT RACE OR PARTY. WHEN RACE IS THE PREDOMINANT
PURPOSE, STRICT SCRUTINY IS THE TEST. SUZANNA: I THINK THE
LAST ONE IS A LITTLE MORE COMPLICATED, AS I SUGGESTED,
BUT YOU'RE ABSOLUTELY RIGHT. THOSE ARE THE TAKEAWAY POINTS. BETH: OK. THANK YOU. OUR NEXT PANEL IS GOING TO
TAKE A LOOK AT SOME PATENT LAW DECISIONS. AND AFTER THAT, WE'RE GOING TO
TAKE A 5-MINUTE BREAK BEFORE TACKLING THE
SECOND HALF OF OUR PROGRAM. THE SUPREME COURT
ISSUED A RECORD 6 PATENT LAW OPINIONS THIS TERM. SOME OF THE DECISIONS
MADE SIGNIFICANT CHANGES IN LONGSTANDING PRACTICES,
IN PARTICULAR WITH RESPECT TO VENUE. WE WANT TO TELL YOU
ABOUT 3 OF THEM. THE FIRST OF THESE IS
"TC HEARTLAND V. KRAFT FOODS." VENUE FOR PATENT INFRINGEMENT
CASES IS GOVERNED BY 28 U.S.C. SECTION 1400(b). THAT STATUTE STATES THAT
PATENT INFRINGEMENT SUITS CAN BE BROUGHT IN THE DISTRICT
WHERE THE DEFENDANT RESIDES OR WHERE THE DEFENDANT HAS
COMMITTED ACTS OF INFRINGEMENT AND HAS A REGULAR AND
ESTABLISHED PLACE OF BUSINESS. IN 1957, THE SUPREME COURT HELD
IN "FOURCO GLASS" CASE THAT FOR PURPOSES OF PATENT
INFRINGEMENT, A DOMESTIC CORPORATION RESIDES ONLY
IN THE STATE WHERE IT IS INCORPORATED. MORE THAN 25 YEARS AGO,
THE FEDERAL CIRCUIT HELD THAT "FOURCO GLASS" HAD BEEN MODIFIED
BY AMENDMENTS MADE TO THE GENERAL VENUE STATUTE. THOSE AMENDMENTS PROVIDED THAT
A DEFENDANT RESIDES IN ANY DISTRICT WHERE IT'S SUBJECT
TO PERSONAL JURISDICTION. IN "TC HEARTLAND," THE COURT
THIS TERM REVERSED AN EARLIER FEDERAL CIRCUIT TO THAT EFFECT
AND HELD THAT "FOURCO GLASS" REMAINED GOOD LAW. THE HOLDING APPLIES ONLY
TO DOMESTIC CORPORATIONS, THOUGH FOREIGN FIRMS ARE SUBJECT
TO VENUE IN ANY JUDICIAL DISTRICT WHERE PERSONAL
JURISDICTION IS FOUND. BUT ANOTHER TWIST IS THAT
SECTION 1400(b) HAS A SECOND CLAUSE THAT WAS NOT AT ISSUE
IN "TC HEARTLAND" THAT PROVIDES FOR VENUE WHERE A DEFENDANT
HAS A REGULAR AND ESTABLISHED PLACE OF BUSINESS AND HAS
COMMITTED ACTS OF INFRINGEMENT. THIS CLAUSE HAD BECOME STALE
UNDER FEDERAL CIRCUIT DECISIONS OVER THE YEARS,
BUT IT MAY SOON BE THE MOST LITIGATED STATUTORY LANGUAGE
CONCERNING VENUE, AS PARTIES TO THESE SUITS TRY TO MAINTAIN
CASES IN THEIR FAVORITE COURTS. OUR SECOND DECISION INVOLVED
THE COURT IN THE SO-CALLED "SMARTPHONE PATENT WARS." A LITTLE BACKGROUND FIRST. DESIGN PATENTS ARE SUBJECT
TO SPECIAL DAMAGES STATUTE UNDER WHICH AN INFRINGER IS
LIABLE FOR HIS TOTAL PROFIT WITH RESPECT TO AN ARTICLE
OF MANUFACTURE TO WHICH THE DESIGN IS APPLIED. THIS IS A DISGORGEMENT REMEDY
THAT IS SUPPOSED TO STRIP AWAY THE INFRINGER'S
ILL-GOTTEN GAINS. BETH: WELL, APPLE OBTAINED
SEVERAL DESIGN PATENTS ON THE iPHONE, ONE OF
WHICH COVERED A RECTANGULAR FRONT FACE WITH
ROUNDED CORNERS. SAMSUNG WAS FOUND TO INFRINGE
THAT PATENT AND WAS HELD LIABLE FOR $399 MILLION-- IN OTHER WORDS,
ITS ENTIRE PROFIT FROM THE SALES OF ITS
INFRINGING SMARTPHONE. IN REACHING THAT DECISION,
THE LOWER COURTS REJECTED SAMSUNG'S ARGUMENT THAT THE
PROFITS AWARDED SHOULD HAVE BEEN LIMITED TO THE INFRINGING
ARTICLE OF MANUFACTURE, FOR EXAMPLE, THE SCREEN
OR THE CASE OF THE iPHONE. THE LOWER COURTS UPHELD A
TRADITIONAL INTERPRETATION OF 35 U.S.C. SECTION 289 THAT
THE ENTIRE INFRINGING SAMSUNG PHONE WAS THE ONLY PERMISSIBLE
ARTICLE OF MANUFACTURE BECAUSE THE CONSUMERS
CANNOT BUY THE SMARTPHONE IN INDIVIDUAL COMPONENTS. JIM: BUT IN
"SAMSUNG V. APPLE," THE SUPREME COURT
REVERSED THAT DECISION AND HELD THAT THE TERM ARTICLE
OF MANUFACTURE IS BROAD ENOUGH TO ENCOMPASS BOTH THE PRODUCT
SOLD TO A CONSUMER AS WELL AS A COMPONENT OF THAT PRODUCT. HOWEVER, THE COURT DIDN'T
EXPLAIN EITHER HOW A JUDGE OR JURY MIGHT GO ABOUT DECIDING
WHETHER PROFITS APPLY TO THE PRODUCT AS A WHOLE,
OR INSTEAD, TO AN INDIVIDUAL COMPONENT, OR WHETHER IN THIS
CASE THE PROFIT SHOULD BE APPLIED TO THE ENTIRE
SAMSUNG SMARTPHONE OR ONLY TO INDIVIDUAL COMPONENTS. THE COURT SAID THE PROBLEM WAS
INADEQUATE BRIEFING AND THEY REMANDED THE CASE. OUR THIRD AND FINAL DECISION,
"SANDOZ V. AMGEN," INVOLVED A CHANGE IN
WHAT HAS BECOME TO BE KNOWN INFORMALLY AS
THE PATENT DANCE. THE COURT WAS ASKED TO
CONSIDER NEW LEGISLATION DEALING WITH A NEW CLASS OF
MEDICATIONS CALLED BIOLOGICS. CONGRESS WAS CONCERNED
THAT LOW-COST SUBSTITUTES FOR BRAND-NAME BIOLOGICS WERE NOT BEING INTRODUCED
WHEN THE PATENTS ON THE ORIGINAL
PHARMACEUTICALS EXPIRED. SO IT ENACTED THE
BIOLOGICS PRICE COMPETITION AND INNOVATIONS ACT TO BALANCE
THE NEED TO PROMOTE NEW DRUGS AND ALSO ENCOURAGE LOW-COST
BIOSIMILAR MEDICINES. ONE OF THE FEATURES OF THE
NEW LAW IS AN ELABORATE SERIES OF INTERACTIONS BETWEEN
A BRAND-NAME BIOLOGICS MANUFACTURER AND A WOULD-BE
BIOSIMILAR COMPETITOR. THE STATUTE CALLS FOR THE TWO
COMPANIES TO SHARE INFORMATION ABOUT THE BIOSIMILAR PRODUCT
AND ANY PATENTS THAT MIGHT COVER THE PRODUCT. THIS EXCHANGE IS THE PATENT
DANCE AND WAS EXTENDED-- IT WAS INTENDED TO ALLOW THE
TWO ENTITIES TO ASSESS THE PATENT LANDSCAPE BEFORE THE
FDA APPROVES A BIOSIMILAR. JIM: THERE WERE TWO ISSUES
IN "SANDOZ V. AMGEN." THE FIRST WAS WHETHER SANDOZ
FILED AN FDA APPLICATION TO MARKET A BIOSIMILAR TO AMGEN'S
BIOLOGIC DRUG, AMGEN WAS ENTITLED TO OBTAIN
SANDOZ'S APPLICATION. THE LOWER COURT HELD THAT
AMGEN COULD NOT GET A FEDERAL INJUNCTION TO FORCE SANDOZ
TO TURN OVER THE APPLICATION, BUT THE SUPREME COURT LEFT
OPEN THE QUESTION WHETHER AN INJUNCTION WAS
POSSIBLE UNDER STATE LAW. NOW, THE SECOND ISSUE WAS
WHETHER SANDOZ PROVIDED AMGEN WITH PROPER NOTICE OF ITS
INTENT TO MARKET A BIOSIMILAR. THE BIOLOGICS ACT REQUIRES
COMPANIES SEEKING TO MARKET A BIOSIMILAR TO PROVIDE NOTICE
TO THE FIRST COMPANY "NOT LATER "THAN 180 DAYS BEFORE THE
DATE OF THE FIRST COMMERCIAL MARKETING OF THE [BIOSIMILAR]
PRODUCT THAT WAS LICENSED [BY THE FDA.]" THE SUPREME COURT REVERSED THE
FEDERAL CIRCUIT ON THIS ISSUE AND HELD THAT "THE APPLICANT
MAY PROVIDE NOTICE EITHER BEFORE OR AFTER
RECEIVING FDA APPROVAL." WE'RE GOING TO TAKE
A 5-MINUTE BREAK NOW, AND THEN WE'LL BE BACK WITH
A LOOK AT SOME BANKRUPTCY DECISIONS, ANSWER ANY
QUESTIONS YOU HAVE, AND THE SECOND HALF
OF OUR PROGRAM.
