FedSoc Forums

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.

• Slack Technologies v. Pirani (April 17) - Securities, Financial Services; Whether, to bring a securities lawsuit alleging misstatements in a registration statement, a plaintiff must plead and show that he bought shares registered under the allegedly misleading statement.
• US ex rel. Schutte v. SuperValu Inc. & United States ex rel. Proctor v. Safeway [Consolidated] (April 18) - Financial Services; Whether and when a defendant’s subjective knowledge about whether its conduct was legal is relevant to whether it “knowingly” submitted false claims for payment to the government or “knowingly” made false statements in support of such claims in violation of the False Claims Act.
• Groff v. Dejoy (April 18) - Labor, Religious Liberties; Whether to overrule the Supreme Court’s 1977 decision in Trans World Airlines v. Hardison, on the accommodations that employers must provide for their employees’ religious practices.
• Counterman v. Colorado (April 19) - Free Speech; To determine whether statements are “true threats” that are not protected by the Constitution, should courts apply an objective test that considers whether a reasonable person would regard the statement as a threat of violence, or instead a subjective test that requires prosecutors to show that the speaker intended to make a threat?
• Lac du Flambeua Band v. Coughlin (April 24) - Tribal Law; Whether the Bankruptcy Code unequivocally expresses Congress’s intent to abrogate the sovereign immunity of Native American tribes.
• Tyler v. Hennepin County (April 26) - Property Rights; Whether the foreclosure on and sale of a home that was worth $25,000 more than the owner owed in taxes violated the Fifth Amendment’s takings clause, which bars the government from taking private property for public use without adequately compensating the property owners.

Featuring:
--Thomas F. Gede, Counsel, Morgan, Lewis & Bockius LLP
--Sharon Fast Gustafson, Principal, Sharon Fast Gustafson, Attorney at Law, PLC
--Brian Hauss, Senior Staff Attorney, Speech, Privacy & Technology Project, ACLU
--Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
--Moderator: Anastasia P. Boden, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute

Geraldine Tyler, a ninety-three-year-old homeowner, owed Hennepin County, Minnesota, nearly $12,700 in delinquent property taxes, plus interest, penalties, and costs. To cover her debt, the County foreclosed on her home and sold it for $40,000. However, the County also kept the surplus $25,000 as profit.

Minnesota, along with thirteen other states, authorize various government agencies to satisfy assorted government debts associated with real property by confiscating all title and equity in an owner’s property. Equity means the value in a piece of property beyond the encumbering debt. No one disputes the government’s ability to forfeit property to cover debts but Ms. Tyler argues the county cannot take the equity in her home.

Tyler asks the United States Supreme Court to rule Hennepin County’s forfeiture of the equity in her home an unconstitutional taking and excessive fine. However, the County argues that Tyler failed to pay her property taxes for five years, she had time to pay those taxes, and therefore the County was not required to refund Tyler any money from forfeiting her house to pay the property taxes.

Nancie Marzulla, who filed an amicus brief with the Atlantic Legal Foundation on behalf of the petitioner’s position, and John Bursch, who filed a petition for a writ of certiorari in Meisner v. Hall asserting the respondent’s position in Tyler joined us to discuss this important case.

Featuring:
--Nancie Marzulla, Partner, Marzulla Law
--John Bursch, Founder, Bursch Law PLLC
--Moderator: Tony Francois, Partner, Briscoe Ivester & Bazel

In Groff v. Dejoy the Court was 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 was 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 was 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.

Groff appealed, and SCOTUS heard oral arguments in the case on April 18, 2023. In this Courthouse Steps webinar where we broke down and analyzed how oral argument went in the case the same day argument occurred.

Featuring:
--Hiram Sasser, Executive General Counsel, First Liberty Institute

Gonzalez v. Trevino involves an alleged retaliatory conspiracy of city officials from Castle Hills, Texas to arrest Sylvia Gonzalez—a 72-year-old councilwoman—for spearheading a nonbinding petition criticizing the city’s manager. Gonzalez acknowledges that there was probable cause for her arrest and appellants asserted a qualified immunity defense. The district court denied Appellants’ motion to dismiss.

On appeal, the Fifth Circuit reversed the district court’s order denying Appellant’s motion to dismiss, finding Appellee failed to establish a violation of her constitutional rights. Notable dissents were issued by Judges Oldham (from the panel opinion) and Ho (from the denial of en banc review). Anya Bidwell and the Institute for Justice have petitioned the Supreme Court for review.

Please join us as Ms. Bidwell discusses qualified immunity, the First Amendment, and the Fifth Circuit’s decision in Gonzalez v. Trevino.

Over the past several years, a debate has erupted within the world of indigent defense: to what degree is it appropriate or indeed vital for public defenders to be involved in political advocacy? Some contend such advocacy is outside the role and responsibility of public defenders, who should instead focus on defending their clients to the best of their ability. Others assert that involvement on social issues that arguably affect their clients is integral to the public defender’s mission and work.

In this Teleforum former public defenders discussed these questions on the role of public defenders in political advocacy.

Feauring:
--Maud Maron, Interim Executive Director, Foundation Against Intolerance and Racism
--Tiffany Roberts, Public Policy Director, Southern Center for Human Rights
--[Moderator] Matthew Cavedon, Robert Pool Fellow in Law and Religion & Senior Lecturer in Law, Emory University School of Law

On November 4, 2022, the Supreme Court granted cert in Amgen Inc. v. Sanofi, a patent infringement case that involves the application of the statutory enablement requirement of Section 112 of the patent laws to what is referred to as a "genus claim" as it applies in the context of pharmaceutical applications. The two patents in dispute relate to antibody drugs that reduce low-density lipoprotein (“LDL”) cholesterol.

The Court heard oral arguments in the case on March 27, 2023. Specifically at issue was "whether enablement is governed by the statutory requirement that the specifications teach those skilled in the art to 'make and use' the claimed invention, or whether it must instead enable those skilled in the art 'to reach the full scope of claimed embodiments' without undue experimentation—i.e., to cumulatively identify and make all or nearly all embodiments of the invention without substantial 'time and effort.'"

Robert Rando, an intellectual property attorney who filed an amicus brief in the case, joined us to break down the arguments.

Featuring:
--Robert J. Rando, Partner, Greenspoon Marder LLP

As Indonesia, Somalia, Niger, and Mauritania may be next to join the Abraham Accords, what interests unify these countries on Accord agreement? What will be the impact of Saudi Arabia’s alignment with Iran? What are the balance of power dynamics for the Iran-concerned Accord countries of Israel, Bahrain, UAE? What binds signatories to the Accords as regional political pressures mount?

Discussants will assess the impact of the normalization of relationships they have evolved in the two and a half years since Accords were negotiated. Cultural shifts are already reported after two years of active Accords with Hebrew frequently spoken on the streets of Dubai. Trade has flourished. Flights and overflights are routine. But the United States’ role has shifted for a variety of reasons. Is America’s leadership critical to salutary Accord developments?

Featuring:
--David P. Goldman, President, Macrostrategy LLC
--Hon. Brian Hook, Founder, Latitude, LLC
--Prof. Bernard Haykel, Professor of Near Eastern Studies & Director of the Institute for Transregional Study of the Contemporary Middle East, Princeton University
--Moderator: Prof. Jamil Jaffer, Adjunct Professor, NSI Founder, and Director, National Security Law & Policy Program, Antonin Scalia Law School, George Mason University

In this two-for-one Teleforum, we covered two cases with questions concerning criminal law and procedure that are set to be argued before the Court.

On March 28, 2023, the Supreme Court heard oral argument in Smith v. United States. Two issues were presented to the Court by this case.

• One, whether, when there are multiple charges associated with a trial, lack of venue as to one count requires vacatur of the convictions for other counts?
• Two, what is the proper remedy when someone is tried in an improper venue? Is the government’s failure to prove venue equal to an acquittal barring re-prosecution of the offense, or can the government may re-try the defendant for the same offense in a different venue?

The next day, the Supreme Court heard oral argument in Samia v. United States. In it, 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.

In this recorded webinar, we broke down and analyzed how oral argument went before the Court in these two cases, united by the Court before which they are set to be argued and the fact they pose questions of proper procedure in criminal cases.

Featuring:
--Robert McBride, Partner-in-Charge, Northern Kentucky, Taft Stettinius & Hollister LLP

In Jack Daniel’s Properties, Inc. v. VIP Products LLC, the Supreme Court is considering "Whether humorous use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims; and (2) whether humorous use of another’s mark as one’s own on a commercial product is “noncommercial” and thus bars as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act."

Following oral arguments in the case, IP expert Adam Mathews joined us to break down the case and answer audience questions.

Featuring:
--Adam Mathews, State Representative, Ohio, and Attorney, Ashbrook Byrne Kresge

Although a right to trial is enshrined in the American Constitution, practically the nation’s criminal justice system now resolves almost all cases through plea bargaining. This has raised many questions, including whether innocent people are effectively coerced into pleading guilty, whether similarly situated defendants are treated equally, and whether there is enough transparency to evaluate the system’s effectiveness and correct injustices.
In February 2023, a task force assembled by the Criminal Law Section of the American Bar Association released a report that made numerous recommendations for changing current policy and practice on plea bargaining. Amid a system struggling with COVID-era backlogs and rates of serious crimes that largely remain above 2019 levels, are there ways to bolster the effective availability of the right to trial without jeopardizing public safety or requiring an unrealistic increase in system capacity?

Featuring:
--Clark Niely, Senior Vice President for Legal Studies, Cato Institute
--Kent Volkmer, Pinal County Attorney, Pinal County, Arizona
--[Moderator] Marc Levin, Chief Policy Counsel, Council on Criminal Justice