FedSoc Forums

On April 22, the Supreme Court released its decision in the case of Jones v. Mississippi. By a vote of 6-3, the judgment of the Court of Appeals of Mississippi was affirmed. The case concerns a Mississippi statute that allows imposition of a life without parole sentence, and a defendant who was a juvenile at the time of the commission of the offense. Justice Kavanaugh's majority opinion was joined by the Chief Justice and Justices Alito, Gorsuch, and Barrett. Justice Thomas concurred in the judgment. Justice Sotomayor dissented, joined by Justices Breyer and Kagan. Marc Levin joins us to discuss the decision and its implications.
Featuring:
Marc Levin, Chief Policy Counsel, Council on Criminal Justice and Senior Advisor, Right on Crime


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A biracial Wisconsin couple—Konkanok Rabieba and Richard Freihoefer—is suing the state of Wisconsin over its Minority Grant Program: a state scholarship program which awards education grants to certain minorities but not to others or to whites. Although the plaintiffs’ son is half Thai, he is ineligible to apply for the Program because applications are only accepted from persons who are black, Hispanic, American Indian, or “admitted to the United States after December 31, 1975, and who either is a former citizen of Laos, Vietnam or Cambodia or whose ancestor was or is a citizen of Laos, Vietnam or Cambodia.” Rabieba and Freihoefer allege that administration of the program on this basis unconstitutionally discriminates against non-minorities and minorities not included in the program's defined class on the basis of race and national origin in violation of the Wisconsin state constitution.

Featuring:
-- Rick M. Esenberg, Founder, President, and General Counsel, Wisconsin Institute for Law & Liberty

Johnson & Johnson v. Ingham is a pending petition before the U.S. Supreme Court. It involves many important legal issues, specifically: (1) whether a court must assess if consolidating multiple plaintiffs for a single trial violates Due Process, or whether it can presume that jury instructions always cure both jury confusion and prejudice to the defendant; (2) whether a punitive-damages award violates Due Process when it far exceeds a substantial compensatory-damages award, and whether the ratio of punitive to compensatory damages for jointly and severally liable defendants is calculated by assuming that each defendant will pay the entire compensatory award; and (3) whether the “arise out of or relate to” requirement for specific personal jurisdiction can be met by merely showing a “link” in the chain of causation, as the Court of Appeals of Missouri held, or whether a heightened showing of relatedness is required, as the Ford Motor Company in Ford Motor Co. v. Montana Eighth Judicial District Court has argued.

Attorney John Reeves, who filed an amicus brief for petitioners on behalf of the Missouri Organization of Defense Lawyers, will discuss the case and its implications.

Featuring:
-- John Reeves, Founder and Member, Reeves Law LLC

It is hard to find a discussion of artificial intelligence these days that does not include concerns about Artificial Intelligence (AI) systems' potential bias against racial minorities and other identity groups. Facial recognition, lending, and bail determinations are just a few of the domains in which this issue arises. Laws are being proposed and even enacted to address these concerns. But is this problem properly understood? If it's real, do we need new laws beyond those anti-discrimination laws that already govern human decision makers, hiring exams, and the like?

Unlike some humans, AI models don't have malevolent biases or an intention to discriminate. Are they superior to human decision-making in that sense? Nonetheless, it is well established that AI systems can have a disparate impact on various identity groups. Because AI learns by detecting correlations and other patterns in a real world dataset, are disparate impacts inevitable, short of requiring AI systems to produce proportionate results? Would prohibiting certain kinds of correlations degrade the accuracy of AI models? For example, in a bail determination system, would an AI model which learns that men are more likely to be repeat offenders produce less accurate results if it were prohibited from taking gender into account?

Featuring:
-- Stewart Baker, Partner, Steptoe & Johnson LLP
-- Nicholas Weaver, Researcher, International Computer Science Institute and Lecturer, UC Berkeley
-- Moderator: Curt Levey, President, Committee for Justice

Thirteen years ago, Tarahrick Terry was charged with possession with intent to distribute 3.9 grams of cocaine base otherwise known as crack cocaine. He pled guilty and was sentenced under 21 U.S.C. 842(b)(1)(C) which set a range of 0-30 years. Terry received a sixteen-year term of imprisonment followed by six months of supervised release.
Congress passed comprehensive criminal justice reform twice in the years following: the Fair Sentencing Act (2010) and the First Step Act (2018) which modified the application of the Fair Sentencing Act. Terry appealed his sentence, arguing his offense was a “covered offense” under Section 404 of the First Step Act. The district court denied relief and the Eleventh Circuit affirmed.
On May 4, 2021, the Supreme Court will hear oral argument taking up the question whether Terry’s offense was a “covered offense” under Section 404 under the First Step Act and whether he is entitled to relief.
Featuring:
Vikrant Reddy, Senior Research Fellow, Charles Koch Institute

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Thomas Jefferson High School for Science and Technology, or “TJ,” in Fairfax County, Virginia, is the nation’s top-ranked public high school. It’s also over 70% Asian-American. Until last fall, admission to TJ rested largely on a student’s performance on a race-blind standardized admissions test. Vocally displeased that the demographics of TJ’s student body do not match the demographics of its school district as a whole, the Fairfax County school board recently eliminated the standardized admissions test and instituted a new admissions system which the Plaintiff, Coalition for TJ, believes is designed to achieve the school board’s racial balancing goals. Under the new system, the Coalition for TJ projects that Asian-American enrollment—and only Asian-American enrollment—in the incoming TJ freshman class will drop by over 40%.

Represented by Pacific Legal Foundation, last month the Coalition for TJ filed a lawsuit in the U.S. District Court for the Eastern District of Virginia alleging that the school district’s new admission policy amounts to racial balancing in violation of the Equal Protection Clause of the Fourteenth Amendment. Against a backdrop of perceived increased anti-Asian bias and concerns over equity in admissions in secondary and higher education, Coalition for TJ v. Brabrand offers the chance to discuss whether school districts are attempting to racially balance public schools and why the facts of the Coalition for TJ case make it a particularly good vehicle for a strategic challenge.



Featuring:

Erin Wilcox, Attorney, Pacific Legal Foundation


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On April 28, 2021, the Supreme Court will hear oral argument in the case of PennEast Pipeline LLC v. New Jersey. In this case, the Court will address the conflict between state sovereign immunity secured to the states by the Eleventh Amendment and the Federal Natural Gas Act which authorizes certain private actors to exercise Federal eminent domain power.
In this case, PennEast Pipeline used the Act to take forty-two New Jersey properties in order to build a pipeline. New Jersey fought the taking, arguing that PennEast was not appropriately authorized under the Act and even if the authorization were appropriate, sovereign immunity applied.
The District Court sided with PennEast, finding the exercise of eminent domain was authorized. The Third Circuit disagreed, holding that even though the authorization under the Act was appropriate, the Act does not abrogate state sovereign immunity. The Supreme Court takes up the question whether the Natural Gas Act does delegate federal eminent domain power and if so, whether that delegation removes Eleventh Amendment state sovereign immunity.
Featuring:
Hon. Paul D. Clement, Partner, Kirkland & Ellis LLP
Moderator: Roger J. Marzulla, Partner, Marzulla Law

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On April 22, 2021, the U.S. Supreme Court decided Carr v. Saul. Writing for the unanimous Court and in reversing the lower court, Justice Sonia Sotomayor explained that principles of issue exhaustion do not require Social Security disability claimants to argue at the agency level that the administrative law judges hearing their disability claims were unconstitutionally appointed. Justice Thomas filed an opinion concurring in part and concurring in the judgment, in which Justices Gorsuch and Barrett joined. Justice Breyer filed an opinion concurring in part and concurring in the judgment.
Thomas Berry, who filed an amicus brief on behalf of petitioners, joins us to discuss the ruling and its implications
Featuring:
Thomas Berry, Research Fellow, Robert A. Levy Center for Constitutional Studies, Cato Institute; Managing Editor, Cato Supreme Court Review

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On April 28, 2021, the Supreme Court will hear oral argument in Mahanoy Area School District v. B.L., which presents the question whether, under Tinker v. Des Moines Indep. Comm. Sch. Dist., public high schools may discipline students for off-campus speech. B.L. was a high-school sophomore who had tried out unsuccessfully for the varsity cheerleading team, but was selected for the J.V. team instead. Upset, she Snapchatted a photo of herself raising her middle fingers and captioned the photo "F*** school f*** softball f*** cheer f*** everything." The school determined that her Snapchat violated school rules, and removed her from the J.V. team. Her parents sued on her behalf, claiming that the removal violated her First Amendment rights. Both the District Court and the Third Circuit ruled in B.L.'s favor.
Joining us to discuss is Professor Michael Dimino, Professor of Law at Widener University Commonwealth Law School.

Featuring:
Michael Dimino, Professor of Law, Widener University


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On April 27, 2021, the Supreme Court will hear oral argument in the case of U.S. v. Palomar-Santiago. Defendant Palomar-Santiago lost his permanent resident status in 1991 after a California felony DUI conviction. He was deported and subsequently reentered the country without authorization.
In the meantime, the Ninth Circuit held that felony DUI was not a crime of violence necessitating the deportation of a permanent resident-defendant. Now Palomar-Santiago challenges his current 8 U.S.C. 1326 illegal reentry indictment using Ninth Circuit precedent that his initial removal was fundamentally unfair since the crime underlying his deportation was improperly categorized.
The District Court agreed with Palomar-Santiago and the Ninth Circuit affirmed without addressing the merits of the government’s argument: that the Ninth Circuit's decision redefining felony DUI was wrongly decided.
The Supreme Court will address the question whether a defendant who was removed from the United States is automatically entitled to a defense of invalid removal where the crime underlying his removal is no longer a qualifying removal offense within his circuit.
Featuring:
Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.