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FACULTY DIVISION

Practice Groups Podcast

During the month of July, the Federalist Society will be celebrating Liberty Month. Our campaign is dedicated to public education and media awareness of the many pressing legal issues that affect the freedom of Americans. The Liberty Month program will include a daily spadea (half-page) insert in the Washington Times. Each insert will feature articles that discuss a specific court case or legal principle. To help kick-off liberty month, we welcomed Senator Mike Lee, who spoke about American Exceptionalism.

  • Hon. Michael S. Lee, United States Senate
Civil Rights Practice Group Podcast

On June 25, the Supreme Court issued a 5-4 decision that the Wall Street Journal has characterized as a "Disastrous Misreading of the Fair Housing Act," ruling that disparate-impact claims are cognizable under the Fair Housing Act. The consensus of court-watchers predicted an opposite holding. Is the Court’s decision a broad endorsement of the government’s use of disparate impact theory? Our experts discussed the implications of the decision.

  • William Consovoy, Partner, Consovoy McCarthy PLLC
  • Ralph W. Kasarda, Staff Attorney, Pacific Legal Foundation
SCOTUScast 7-1-15

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.

SCOTUScast 7-1-15 featuring Andrew Grossman

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.

Criminal Law & Procedure Practice Group Podcast

On June 29, with a contentious 5-4 decision in which numerous dissents and concurrences were read from the bench, the Supreme Court upheld the state of Oklahoma’s lethal injection procedure. Our expert discussed the opinion and its impact going forward.

  • Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation
Environmental Law & Property Rights Practice Group Podcast

On June 29, the U.S. Supreme Court limited the power of the EPA. Under the Clean Air Act, the EPA can regulate, as a stationary source of emissions, power plants only if EPA concludes that "regulation is appropriate and necessary." The Court, in a split decision, held that the EPA acted unreasonably when it deemed cost of the regulations irrelevant when it decided to regulate power plants. But what does that mean for the EPA? Will the decision have an impact for other regulatory agencies?

  • Andrew Grossman, Associate, Baker & Hostetler, and Adjunct Scholar, The Cato Institute