SCOTUScast

On October 14, 2015, the Supreme Court heard oral argument in Federal Energy Regulatory Commission v. Electric Power Supply Association and EnerNOC v. Electric Power Supply Association. -- These consolidated cases involve the efforts of the Federal Energy Regulatory Commission (FERC) to specify the methodology that operators in the wholesale electricity market use when compensating users for a commitment to reduce their consumption at particular times, a phenomenon known as “demand response.” The U.S. Court of Appeals for the D.C. Circuit determined that FERC lacked statutory authority to impose such a methodology. The Supreme Court agreed to consider the following two questions: (1) Whether FERC reasonably concluded that it has authority under the Federal Power Act to regulate the rules used by operators of wholesale electricity markets to pay for reductions in electricity consumption and to recoup those payments through adjustments to wholesale rates; and (2) Whether the D.C. Circuit erred in holding that the rule issued by FERC is arbitrary and capricious. -- Justice Alito appears to be recused from this case. -- To discuss the case, we have James Coleman, who is assistant professor at the University of Calgary, Faculty of Law and Haskayne School of Business.

On October 6, 2015, the Supreme Court heard oral argument in DIRECTV v. Imburgia. This case involves a class action lawsuit which argues that DIRECTV improperly charged early termination fees to its customers. The question is whether the California Court of Appeal erred by holding that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act. -- To discuss the case, we have Cory Andrews, who is Senior Litigation Counsel at the Washington Legal Foundation.

October 5th will mark the first day of the 2015 Supreme Court term. Thus far, the Court's docket includes major cases involving the death penalty, affirmative action, unions, civil asset forfeiture, and more. -- Notable cases include Campbell-Ewald Company v. Gomez, which concerns pre-certification mootness; Tyson Foods v. Bouaphakeo, which concerns class certification where statistical methods are used to establish liability and damages; Spokeo v. Robins, which concerns Article III standing and statutory damages; Fisher v. University of Texas at Austin, which concerns affirmative action in admissions; Evenwel v. Abbott, which concerns redistricting law; Friedrichs v. California Teachers Association, which concerns teacher unions; and Kansas v. Gleason, Kansas v. Carr, Montgomery v. Louisiana, Foster v. Humphrey, and Hurst v. Florida, which all concern the death penalty. -- In addition to these cases and others, which may include abortion and contraceptive mandate questions, the panelists will discuss the current composition and the future of the Court. -- Featuring: Prof. Gail Heriot, Professor of Law, University of San Diego School of Law; Mr. John Elwood, Partner at Vinson & Elkins; Mr. Neal K. Katyal, Partner at Hogan Lovells; Prof. John F. Stinneford, Professor of Law and Assistant Director, Criminal Justice Center at Levin College of Law, University of Florida; and Mr. Ed Whelan, President of Ethics & Public Policy Center. Moderator: Mr. Adam Liptak, The New York Times.

On June 22, 2015, the Supreme Court decided Kingsley v. Hendrickson. The central question in this case was whether, to prove an excessive force claim brought by a pretrial detainee against several jail officers, the detainee must show that the officers were subjectively aware that their use of force was unreasonable, or simply that the officers’ use of that force was objectively unreasonable. -- In an opinion delivered by Justice Breyer, the Supreme Court held by a vote of 5-4 that the detainee needed to show only that the officers’ use of force was objectively unreasonable. -- Justices Kennedy, Ginsburg, Sotomayor and Kagan joined Justice Breyer’s opinion for the Court. Justice Scalia filed a dissenting opinion in which Chief Justice Roberts and Justice Thomas joined. Justice Alito also filed a dissenting opinion. The judgment of the Seventh Circuit was vacated and the case remanded. -- To discuss the case, we have Joshua A. Skinner, who is an Attorney at Fanning Harper Martinson Brandt & Kutchin, P.C., in Dallas Texas.

On June 18, 2015, the Supreme Court issued its decision in Davis v. Ayala. The issue in this case was whether Ayala was entitled to federal habeas relief because the judge in his capital murder trial, when responding to Ayala’s objection that the prosecution used its peremptory challenges to strike potential jurors based on race, excluded Ayala from the hearing during which the judge considered the prosecution’s explanation for the peremptory challenges. The Ninth Circuit granted Ayala’s petition for habeas relief. -- In an opinion delivered by Justice Alito, the Court reversed the Ninth Circuit by a vote of 5-4 and remanded the case. Any federal constitutional error that may have occurred as a result of the exclusion of Ayala from the hearing, the Supreme Court held, was harmless with respect to all seven prospective jurors who had been stricken. -- Justice Alito’s opinion was joined by the Chief Justice and Justices Thomas, Scalia, and Kennedy. Justices Kennedy and Thomas filed concurring opinions. Justice Sotomayor filed a dissenting opinion, which was joined by Justices Breyer, Kagan, and Ginsburg. -- To discuss the case, we have Ronald Eisenberg, who heads the Law Division of the Philadelphia District Attorney’s Office.

On June 29, 2015, the Supreme Court issued its decision in Michigan v. Environmental Protection Agency. The question in this case is whether the Environmental Protection Agency (EPA) acted unreasonably when it did not consider the costs of compliance in determining whether it was appropriate to regulate hazardous air pollutants emitted by electric utilities. -- In an opinion delivered by Justice Scalia, the Court held by a vote of 5-4 that the EPA acted unreasonably when it treated the costs of compliance as irrelevant. The judgment of the D.C. Circuit was reversed and the case remanded. -- Chief Justice Roberts, as well as Justices Kennedy, Thomas, and Alito joined the opinion of the Court. Justice Thomas filed a concurring opinion. Justice Kagan filed a dissenting opinion, which justices Ginsburg, Breyer, and Sotomayor joined. -- To discuss the case, we have Andrew Grossman, who is an associate at the law firm BakerHostetler.

On June 29, 2015, the Supreme Court issued its decision in Glossip v. Gross. This case concerned three questions. The first was whether it is constitutional for a state to execute an inmate by administering a three-drug protocol in which a) there is some scientific agreement that the first drug does not sufficiently relieve pain or consistently render a person in a deep state of unconsciousness, and b) there is a substantial risk that administration of the second and third drugs would cause significant pain to a still-conscious prisoner. The second question was whether the plurality stay standard of Baze v. Rees is applicable when states are using a different execution protocol than the one involved in Baze v. Rees. The third question was whether, if a state's protocol for lethal injection will violate the Eighth Amendment, the legal duty to propose a different drug falls upon the prisoner. -- In an opinion written by Justice Alito, the Court held by a vote of 5-4 that the prisoners failed to establish a likelihood of success on the merits of their claim that the administration of midazolam as the first drug in a three drug execution protocol violates the Eighth Amendment. The Court also held that to prevail on an Eighth Amendment method-of-execution claim, the prisoner is required to prove that the protocol creates a "demonstrated risk" of severe pain and that the risk is substantial relative to available alternatives. -- Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas joined the opinion of the Court. Justice Scalia filed a concurring opinion which Justice Thomas joined. Justice Thomas filed a concurring opinion which Justice Scalia joined. Justice Breyer filed a dissenting opinion, which Justices Ginsburg, Breyer and Kagan joined. The judgment of the Tenth Circuit was affirmed. -- To discuss the case, we have Kent S. Scheidegger, who is Legal Director & General Counsel at the Criminal Justice Legal Foundation.

On June 26, 2015, the Supreme Court decided Obergefell v. Hodges. This highly anticipated case concerned two questions. The first is whether states are required by the Fourteenth Amendment to grant marriage licenses to same-sex couples. The second question is whether states are required by the Fourteenth Amendment to recognize the marriages of same-sex couples who were lawfully married in a different state. -- In a 5-4 opinion delivered by Justice Kennedy, the Supreme Court held that States are required by the Fourteenth Amendment to grant marriage licenses to same-sex couples. On the second question, the Supreme Court held that States are required by the Fourteenth Amendment to recognize the marriages of same-sex couples lawfully married out-of-state. -- Justices Ginsburg, Breyer, Sotomayor, and Kagan joined the opinion of the Court. Chief Justice Roberts filed a dissenting opinion which Justices Scalia and Thomas joined. Justice Scalia filed a dissenting opinion, which Justice Thomas joined. Justice Thomas filed a dissenting opinion, which Justice Scalia joined. Justice Alito filed a dissenting opinion which Justices Scalia and Thomas joined. The judgment of the Sixth Circuit was reversed. -- To discuss the case, we have John Eastman, who is the Henry Salvatori Professor of Law & Community Service at Chapman University Fowler School of Law and Ilya Shapiro, who is Senior Fellow in Constitutional Studies at the Cato Institute.

On June 25, 2015, the Supreme Court issued its decision in King v. Burwell. The question in this highly anticipated case is whether the Affordable Care Act authorizes the Internal Revenue Service to offer tax credit subsidies for individuals purchasing health insurance through federal exchanges. -- In an opinion delivered by the Chief Justice, the Court held by a vote of 6-3 that the tax credit subsidies authorized by section 36B of the Affordable Care Act for individuals purchasing health insurance through state exchanges are also available to individuals in states that have a federal exchange. The judgment of the Fourth Circuit was affirmed. -- Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan joined the opinion of the Court. Justice Scalia filed a dissenting opinion which Justices Thomas and Alito joined. -- To discuss the case, we have Prof. Josh Blackman, who is an Assistant Professor of Law at the South Texas College of Law and Prof. Jonathan Adler who is the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law.

On June 18, 2015, the Supreme Court decided Ohio v. Clark. This case involved two questions regarding the Sixth Amendment’s Confrontation Clause: (1) whether an individual’s obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause. The Supreme Court of Ohio rejected Clark’s challenge to his conviction on these grounds. -- The United States Supreme Court reversed the judgment of the Supreme Court of Ohio by a vote of 9-0 and remanded the case. In an opinion delivered by Justice Alito and joined by the Chief Justice and Justices Breyer, Kennedy, Sotomayor, and Kagan, the Court held that because neither the child nor his teachers had the primary purpose of assisting in Clark’s prosecution, the child’s statements did not implicate the Confrontation Clause and therefore were admissible at trial. Justice Scalia, joined by Justice Ginsburg, filed an opinion concurring in the judgment. Justice Thomas also filed an opinion concurring in the judgment. -- To discuss the case, we have Prof. Michael O’Shea, who is a Professor of Law at the Oklahoma City University School of Law.