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Federalism & Separation of Powers Practice Group Podcast

All eyes are on the United States Supreme Court as it prepares to hear oral argument in U.S. v. Texas, which will examine the President's executive actions on immigration. In addition to complex questions about standing and administrative law, the Court has, on its own initiative, added a Take Care Clause question to the argument. Our experts previewed the oral arguments, the major points to be made by both sides, and the stakes.


  • Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law
  • Prof. Kevin R. Johnson, Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies, University of California, Davis, School of Law
SCOTUScast 2-12-16 featuring Scott Broyles

On January 13, 2016, the Supreme Court heard oral argument in Puerto Rico v. Sanchez Valle. Sanchez Valle was charged by Puerto Rico prosecutors with the illegal sale of weapons and ammunition without a license in violation of Puerto Rico law.  While that charge was pending, he was indicted by a federal grand jury for the same offense, based on the same facts, under federal law. He pled guilty to the federal indictment but sought dismissal of the Puerto Rico charges on Double Jeopardy grounds, arguing that Puerto Rico is not a separate sovereign. The Supreme Court of Puerto Rico agreed but the Commonwealth appealed.

The question now before the U.S. Supreme Court is whether the Commonwealth of Puerto Rico and the federal government are separate sovereigns for purposes of the Double Jeopardy Clause of the United States Constitution.

To discuss the case, we have Scott Broyles, who is Professor at Charlotte School of Law.

SCOTUScast featuring Jack Park

On January 12, 2016, the Supreme Court decided Hurst v. Florida. The question before the Court was whether Florida’s death sentencing scheme--which Hurst contends does not require unanimity in the jury death recommendation or in the finding of underlying aggravating factors--violates the Sixth and/or Eighth Amendments in light of the Court’s 2002 decision Ring v. Arizona, which requires that the aggravating factors necessary for imposition of a death sentence be found by a jury.  The Florida Supreme Court upheld Hurst’s death sentence.

By a vote of 8-1, the Supreme Court reversed the judgment of the Florida Supreme Court and remanded the case, holding that Florida’s capital sentencing scheme did violate the Sixth Amendment in light of Ring. Justice Sotomayor’s opinion for the Court was joined by the Chief Justice and Justices Scalia, Kennedy, Thomas, Ginsburg, and Kagan. Justice Breyer filed an opinion concurring in the judgment. Justice Alito filed a dissenting opinion.

To discuss the case, we have Jack Park, who is Of Counsel with Strickland Brockington Lewis LLP.

SCOTUScast 2-11-16 featuring Mark F. Hearne II

On December 8, 2015, the Supreme Court heard oral argument in Harris v. Arizona Independent Redistricting Commission. In 2012, the Arizona Independent Redistricting Commission redrew the map for the state legislative districts based on the results of the 2010 census. Wesley Harris and other individual voters sued the Commission and alleged that the newly redrawn districts were underpopulated in Democratic-leaning districts and over-populated in Republican-leaning ones, and that the Commission had, therefore, violated the Equal Protection Clause of the Fourteenth Amendment. The Commission countered that the population deviations were the result of attempts to comply with the Voting Rights Act. A three-judge district court ruled in favor of the Commission.
There are two questions before the Supreme Court on appeal: (1) Whether the desire to gain partisan advantage for one political party justifies creating over-populated legislative districts that result in the devaluation of individual votes, violating the one-person, one-vote principle; and (2) whether the desire to obtain favorable preclearance review by the Justice Department permits the creation of legislative districts that deviate from the one-person, one-vote principle, and--even if creating unequal districts to obtain preclearance approval was once justified--whether this remains a legitimate justification after the Court’s decision in Shelby County v. Holder.

To discuss the case, we have Mark F. Hearne, II, who is Partner at Arent Fox LLP.

SCOTUScast 2-11-16 featuring Joshua P. Thompson

On December 9, 2015, the Supreme Court heard oral argument in Fisher v. University of Texas at Austin.  This is the second time the case has come before the high court.

Abigail Fisher, a white female, applied for admission to the University of Texas but was denied. Fisher sued the University and argued that the use of race as a consideration in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the University’s admissions process was constitutional, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The case went to the Supreme Court (Fisher I), which held that the appellate court erred in how it applied the strict scrutiny standard, improperly deferring to the University’s good faith in its use of racial classifications. On remand the Fifth Circuit again ruled in favor of the University, deeming its use of race in the admissions process narrowly tailored to a legitimate interest in achieving “the rich diversity that contributes to its academic mission.”

The question in this case is whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher I.

To discuss the case, we have Joshua P. Thompson who is Principal Attorney at Pacific Legal Foundation.

SCOTUScast 2-11-16 featuring Andrew Grossman

On December 8, 2015, the Supreme Court heard oral argument in Evenwel v. Abbott. As required by the Texas Constitution, the Texas legislature reapportioned its senate districts after the publication of the 2010 census, formally adopting an interim plan that had been put in place for the 2012 primaries.  Plaintiffs, who are registered Texas voters, sued the Texas governor and secretary of state, asserting that the redistricting plan violated the one-person, one-vote principle of the Fourteenth Amendment’s Equal Protection Clause, by failing to apportion districts to equalize both total population and voter population.  A three-judge district court ruled in favor of the state officials.

On appeal, the question before the Supreme Court is whether the three-judge district court correctly held that the “one-person, one-vote” principle under the Equal Protection Clause allows States to use total population, and does not require States to use voter population when apportioning state legislative districts.

To discuss the case, we have Andrew Grossman, who is Associate at Baker & Hostetler, and Adjunct Scholar at The Cato Institute.