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United States Senate special election in New York, 1833

From Wikipedia, the free encyclopedia

The 1833 United States Senate special election in New York was held on January 4, 1833, by the New York State Legislature to elect a U.S. Senator (Class 3) to represent the State of New York in the United States Senate.

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ANNOUNCER: "SUPREME COURT: THE TERM IN REVIEW" A FEDERAL JUDICIAL CENTER PROGRAM FOR JUDGES, STAFF ATTORNEYS, AND LAW CLERKS. NOW FROM OUR STUDIO IN WASHINGTON, D.C., HERE'S JOHN COOKE. HELLO. I'M JOHN COOKE, DEPUTY DIRECTOR OF THE FEDERAL JUDICIAL CENTER. WELCOME TO THIS YEAR'S EDITION OF "SUPREME COURT: THE TERM IN REVIEW," OUR ANNUAL LOOK AT THE COURT'S DECISIONS MOST LIKELY TO AFFECT THE DAY-TO-DAY WORK OF FEDERAL JUDGES. FOR MOST OF THE 2016 TERM, THE COURT OPERATED WITH ONLY 8 JUSTICES UNTIL JUSTICE NEIL GORSUCH WAS SWORN IN ON APRIL 10, 2017, AS THE 101st ASSOCIATE JUSTICE OF THE COURT. DURING THE TERM, THE COURT ISSUED 70 DECISIONS, INCLUDING 9 PER CURIAM DECISIONS. THE COURT DEALT WITH IMPORTANT ISSUES REGARDING THE FIRST AMENDMENT RELIGION CLAUSES THE FIFTH AMENDMENT'S "TAKINGS CLAUSE," EQUAL PROTECTION, AND THE MEANING OF SEVERAL FEDERAL STATUTES. WE'LL DISCUSS THOSE AND MANY OTHER DECISIONS WITH OUR FACULTY. WE'RE AGAIN FORTUNATE TO BE JOINED BY ERWIN CHEMERINSKY, DEAN OF THE UNIVERSITY OF CALIFORNIA BERKELEY SCHOOL OF LAW, EVAN LEE OF THE HASTINGS COLLEGE OF LAW IN SAN FRANCISCO, LAURIE LEVENSON OF LOYOLA LAW SCHOOL IN LOS ANGELES, AND SUZANNA SHERRY OF VANDERBILT UNIVERSITY LAW SCHOOL. BETH WIGGINS, FROM THE CENTER'S RESEARCH DIVISION AND JIM CHANCE, FROM OUR EDUCATION DIVISION WILL BE OUR MODERATORS. IN THE FIRST PART OF THE PROGRAM, WE'LL EXAMINE CASES INVOLVING THE FIRST, FOURTH, FIFTH, AND SIXTH AMENDMENTS, AS WELL AS PATENT LAW AND REDISTRICTING. AFTER A SHORT BREAK, WE'LL LOOK AT DECISIONS ADDRESSING BANKRUPTCY, LIABILITY UNDER "BIVENS," SENTENCING GUIDELINES, FEDERAL JURISDICTION, STANDING, AND THE MEANING OF SEVERAL FEDERAL STATUTES. THE WRITTEN MATERIALS THAT ACCOMPANY THIS PROGRAM AT FJC.DCN INCLUDE AN OUTLINE WITH A SUMMARY OF EACH OF THE DECISIONS THAT WE'LL DISCUSS, ALONG WITH AN APPENDIX WITH SUMMARIES OF THE REMAINING CASES DECIDED BY THE COURT THIS TERM. THE ONLINE OUTLINE ALSO CONTAINS LINKS TO THE FULL OPINIONS. WE'LL BEGIN WITH A LOOK AT AN IMPORTANT FIRST AMENDMENT DECISION. HELLO. I'M BETH WIGGINS. THE FIRST AMENDMENT WAS FRONT AND CENTER THIS TERM WITH IMPORTANT AND FAR-REACHING DECISIONS REGARDING BOTH THE FREE SPEECH AND RELIGION CLAUSES. ONE OF THE MOST ANTICIPATED DECISIONS "TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. V. COMER" WAS A FREE EXERCISE CASE WITH AN INTERESTING MIX OF CONCURRENCES AND DISSENT. THE MISSOURI DEPARTMENT OF NATURAL RESOURCES OFFERED STATE GRANTS TO HELP PUBLIC AND PRIVATE SCHOOLS, NONPROFIT DAY CARE CENTERS, AND OTHER NONPROFIT ENTITIES PURCHASE RUBBER PLAYGROUND SURFACES MADE FROM RECYCLED TIRES. TRINITY LUTHERAN RUNS A PRESCHOOL AND DAY CARE CENTER AT THE CHURCH FOR CHILDREN OF ANY RELIGION OR OF NO RELIGION. THE CHURCH APPLIED FOR MONEY TO RESURFACE ITS PLAYGROUND BUT WAS DENIED BASED ON AN EXPRESS POLICY OF DENYING GRANTS TO ANY APPLICANT OWNED OR CONTROLLED BY A CHURCH, SECT, OR OTHER RELIGIOUS ENTITY. THE DEPARTMENT BELIEVED IT WAS COMPELLED TO FOLLOW THIS POLICY BY ARTICLE I, SECTION VII OF THE MISSOURI CONSTITUTION. THAT SECTION PROVIDES, IN PART, "THAT NO MONEY "SHALL EVER BE TAKEN FROM THE PUBLIC TREASURY, "DIRECTLY OR INDIRECTLY, IN AID OF ANY CHURCH, SECT OR DENOMINATION OF RELIGION..." THE CHURCH SUED THE DEPARTMENT, ALLEGING THAT ITS POLICY VIOLATED THE "FREE EXERCISE CLAUSE" OF THE FIRST AMENDMENT. THE DISTRICT COURT GRANTED THE DEPARTMENT'S MOTION TO DISMISS THE COMPLAINT, AND THE COURT OF APPEALS FOR THE 8th CIRCUIT AFFIRM, BUT THE SUPREME COURT REVERSED THAT DECISION. ERWIN, ON WHAT GROUNDS? IT WAS A 7-2 DECISION, WITH CHIEF JUSTICE ROBERTS WRITING FOR THE COURT. THE COURT SAID IT HAD PREVIOUSLY HELD THAT THE DENIAL OF A GENERALLY AVAILABLE BENEFIT TO RELIGIOUS INSTITUTIONS BURDENS FREE EXERCISE OF RELIGION. THE COURT SAID WHENEVER THE GOVERNMENT DISCRIMINATES AGAINST RELIGIOUS INSTITUTIONS, IT MUST MEET STRICT SCRUTINY. HERE, THE COURT FOUND THAT THE STATE OF MISSOURI FAILED TO MEET STRICT SCRUTINY. THE COURT SAID PROVIDING THIS KIND OF AID WOULD NOT VIOLATE THE "ESTABLISHMENT CLAUSE" OF THE FIRST AMENDMENT. AND THE COURT SAID MISSOURI'S INTEREST IN SKATING AS FAR AWAY AS POSSIBLE FROM THE "ESTABLISHMENT CLAUSE" WASN'T A COMPELLING INTEREST SUFFICIENT TO MEET STRICT SCRUTINY. BETH: OK, SO, THE COURT DISTINGUISHED THIS CASE FROM AN EARLIER CASE THAT THE LOWER COURTS HAD RELIED ON IN RULING AGAINST THE CHURCH. SUZANNA: THAT'S RIGHT. THAT WAS THE 2004 CASE OF "LOCKE V. DAVEY." IN "LOCKE," THE STATE OF WASHINGTON HAD REFUSED TO ALLOW A SCHOLARSHIP STUDENT TO USE STATE FUNDS TO TRAIN FOR THE MINISTRY. AND THE COURT HERE DISTINGUISHED "LOCKE" FROM THIS CASE BY SAYING THAT IN "LOCKE," THE STATE'S DECISION THERE WAS BASED NOT ON DAVEY'S RELIGIOUS CHARACTER, THAT IS, ON WHO HE WAS, BUT ON HIS CHOICE OF PROFESSION-- THAT IS, ON WHAT HE WANTED TO DO. AND HE--THE COURT SAID HERE, THERE WAS NO QUESTION THAT TRINITY LUTHERAN WAS DENIED THE FUNDS BECAUSE OF WHAT THEY WERE-- A CHURCH. THE COURT ALSO SAID-- DISTINGUISHED "LOCKE V. DAVEY" BECAUSE IT INVOLVED TRAINING FOR THE MINISTRY, AND THIS CASE INVOLVED RESURFACING A PLAYGROUND. BETH: BUT THAT WAS ACTUALLY A QUESTION IN THIS CASE, WASN'T IT? WHETHER THE MAJORITY OPINION ACTUALLY WAS LIMITED TO RESURFACING OF THE PLAYGROUND. ERWIN: THAT'S ONE OF THE MOST INTERESTING, AND I THINK FOR THE FUTURE, IMPORTANT ASK TO THE DECISION. CHIEF ROBERTS ADDRESSED THIS IN A FOOTNOTE. IT'S FOOTNOTE 3, AND I THINK IT'S WORTH QUOTING HIS EXACT LANGUAGE, SO IMPORTANT IN SUBSEQUENT LITIGATION. - MM-HMM. - HE SAID, "THIS CASE INVOLVES EXPRESS DISCRIMINATION "BASED ON RELIGIOUS IDENTITY "WITH RESPECT TO PLAYGROUND SURFACING. "WE DO NOT ADDRESS RELIGIOUS USE OF FUNDING OR OTHER FORMS OF DISCRIMINATION." NOW, WHAT'S INTERESTING IS ONLY 3 OTHER JUSTICES JOINED THAT FOOTNOTE-- JUSTICES KENNEDY, ALITO, AND KAGAN. JUSTICES THOMAS AND GORSUCH, WHO ARE OTHERWISE PART OF THE MAJORITY OPINION, POINTEDLY DID NOT JOIN INTO THIS FOOTNOTE. FACT IS THOMAS AND GORSUCH-- EACH WROTE A SEPARATE OPINION SAYING THAT THEY INDICATED THEY'RE QUITE LIKELY TO WANT TO OVERRULE "LOCKE V. DAVEY." SUZANNA: AND JUSTICE SOTOMAYOR WROTE A STRONG DISSENT, WHICH WAS JOINED BY JUSTICE GINSBURG, AND WHICH SHE ACTUALLY DELIVERED FROM THE BENCH. WHAT SHE SAID IS, THIS IS THE FIRST TIME IN THE COURT'S HISTORY THAT THE COURT HAS EVER HELD THAT THE "CONSTITUTION" REQUIRES--NOT JUST ALLOWS-- BUT REQUIRES A STATE TO PROVIDE FUNDS DIRECTLY TO A CHURCH. SHE REVIEWED THE LONG HISTORY OF STATE FUNDING OF RELIGION, POINTED OUT THAT IT ENDED IN 1833, AND THAT 38 OTHER STATES HAVE PROVISIONS IN THEIR CONSTITUTIONS SIMILAR TO THE ONES IN THE MISSOURI CONSTITUTION THAT WAS AT ISSUE. HERE--AND SHE ALSO POINTED OUT THAT THE COURT'S PRECEDENTS HAVE REPEATEDLY WARNED AGAINST-- THAT DIRECT PAYMENTS TO CHURCHES WOULD VIOLATE THE "ESTABLISHMENT CLAUSE." SO, WHAT DO YOU THINK THE IMPLICATIONS, RAMIFICATIONS ARE GONNA BE? SUZANNA: WELL, I THINK WE'VE SUGGESTED A NUMBER OF THINGS, AND THERE MAY BE SOME CHANGES COMING TO THE RELIGION CLAUSES. FIRST, THERE IS THE DISTINGUISHING OF "LOCKE V. DAVEY." AND AS ERWIN SUGGESTED, JUSTICE THOMAS AND JUSTICE GORSUCH MIGHT BE WILLING TO OVERRULE THAT CASE. JUSTICE THOMAS SAID THAT THE COURT'S ENDORSEMENT IN "LOCKE" OF EVEN A MILD FORM OF DISCRIMINATION TROUBLED HIM. AND JUSTICE GORSUCH SUGGESTED THAT THE "LOCKE" DECISION MAY BE INDISTINGUISHABLE FROM THIS CASE, IN WHICH CASE IT'S INCORRECT. I ALSO THINK THAT THE DEBATE OVER FOOTNOTE 3 SUGGESTS A CERTAIN DISARRAY IN THIS AREA. JUSTICE GORSUCH WORRIES THAT IT MAY LEAD SOME TO READ THE DECISION TOO NARROWLY. THAT'S WHY HE DIDN'T WANT TO JOIN IT. AND AS HE SAYS, THE PRINCIPLES OF THE FIRST AMENDMENT "FREE EXERCISE" CLAUSE DO NOT PERMIT DISCRIMINATION AGAINST RELIGIOUS EXERCISE ON THE PLAYGROUND OR ANYWHERE ELSE. ON THE OTHER HAND, JUSTICE BREYER CONCURRED IN THE JUDGMENT ONLY BECAUSE HE SAID HE COULD RELY ON THE PARTICULAR NATURE OF THE PUBLIC BENEFIT HERE, THAT IS THE RESURFACING FUNDS, RATHER THAN ON ANY GENERAL PRINCIPLE OF NONDISCRIMINATION. SO, FOR--PERHAPS FOR HIM, FOOTNOTE 3 DOESN'T GO FAR ENOUGH. I THINK THIS IS GONNA LEAD TO A GREAT DEAL OF LITIGATION. ANYTIME THE GOVERNMENT PROVIDES A BENEFIT TO SECULAR PRIVATE INSTITUTIONS THAT IT DENIES TO RELIGIOUS INSTITUTIONS, THE RELIGIOUS INSTITUTIONS CAN SUE AND SAY THIS IS BURDENING THEIR FREE EXERCISE OF RELIGION. WHAT COURTS ARE GONNA HAVE TO DECIDE IS TO EACH PARTICULAR FORM OF AID, IS IT MORE LIKE "LOCKE V. DAVEY," OR IS IT MORE LIKE "TRINITY LUTHERAN"? I THINK IT'S CLEAR THAT THE GOVERNMENT CAN REFUSE AID IF PROVIDING IT WOULD VIOLATE THE "ESTABLISHMENT CLAUSE" OF THE FIRST AMENDMENT, BUT WHEN AID VIOLATES THE "ESTABLISHMENT CLAUSE" IS ITSELF UNCLEAR. BETH: OK. BEFORE WE LOOK AT OUR NEXT DECISION, I WANT TO MENTION THAT IF YOU HAVE ANY QUESTIONS ABOUT THE OPINIONS WE'RE DISCUSSING, YOU CAN E-MAIL THEM TO US AT THE ADDRESS AT THE BOTTOM OF YOUR SCREEN. WE'RE GOING TO TAKE A COUPLE OF MINUTES AT THE END OF EACH PANEL TO ANSWER ANY QUESTIONS WE GET FROM YOU. ALL RIGHT, LET'S MOVE ON. FREE SPEECH HAD IMPORTANT VICTORIES IN THE SUPREME COURT THIS TERM, AND ALL WERE UNANIMOUS DECISIONS. THE FIRST OF THESE WAS "MATAL V. TAM." THE COURT FOUND THAT SECTION 1052(a) OF THE LANHAM ACT, WHICH PROHIBITS THE REGISTRATION OF TRADEMARKS THAT MAY DISPARAGE OR BRING INTO CONTEMPT OR DISREPUTE ANY PERSON, LIVING OR DEAD, VIOLATED THE "FREE SPEECH CLAUSE" OF THE FIRST AMENDMENT. THIS CASE WAS BROUGHT BY A ROCK BAND OF ASIAN-AMERICAN MUSICIANS WHO WANTED TO TRADEMARK THEIR BAND'S NAME--THE SLANTS. "SLANT," OF COURSE, IS A DEROGATORY TERM DESCRIBING PEOPLE OF ASIAN DESCENT. THE BAND'S MEMBERS SAID THEY WANTED TO RECLAIM THE TERM AND DRAIN IT OF ITS DENIGRATING FORCE. THE PATENT & TRADEMARK OFFICE, OR PTO, DENIED THE BAND'S TRADEMARK APPLICATION UNDER SECTION 1052(a), AND THE LOWER FEDERAL COURTS UPHELD THAT DECISION. I SAID THE DECISION WAS UNANIMOUS, BUT, SUZANNA, IT WASN'T THAT SIMPLE, WAS IT? SUZANNA: NO, IT WASN'T. THE HOLDING WAS UNANIMOUS. 8-0, WITHOUT JUDGE GORSUCH-- JUSTICE GORSUCH'S PARTICIPATION, BUT THERE WERE A NUMBER OF CONCURRENCES AND SOME DISAGREEMENT OVER THE REASONING. DIFFERENT JUSTICES SIGNED ON TO DIFFERENT PARTS OF THE MAJORITY OPINION. JUSTICE ALITO WROTE THE MAJORITY OPINION, AND HE MADE IT ABSOLUTELY CLEAR THAT GOVERNMENT ATTEMPTS TO CENSOR SPEECH, EVEN OFFENSIVE SPEECH, BECAUSE OF ITS VIEWPOINT, WOULD NOT BE TOLERATED. HE SAID IT WAS A BEDROCK FIRST AMENDMENT PRINCIPLE THAT SPEECH MAY NOT BE BANNED ON THE GROUND THAT IT EXPRESSES IDEAS THAT OFFEND. HIS OPINION WENT ON TO REJECT THE GOVERNMENT'S ARGUMENT THAT TRADEMARKS ARE A FORM OF GOVERNMENT SPEECH. THE SLANTS' CHOICE TO USE THAT TERM WAS PRIVATE SPEECH, AND HE SAID THAT IF TRADEMARKS WERE CONSIDERED GOVERNMENT SPEECH, THE GOVERNMENT WOULD BE BABBLING PRODIGIOUSLY AND INCOHERENTLY. JUSTICE ALITO ALSO ADDRESSED OTHER ARGUMENTS THAT THE GOVERNMENT PUT FORWARD. FOR INSTANCE, THE GOVERNMENT SAID, WE SHOULD REGARD THIS AS COMMERCIAL SPEECH, AND GOVERNMENT REGULATION OF COMMERCIAL SPEECH HAS TO MEET A LOWER LEVEL OF SCRUTINY. JUSTICE ALITO SAID EVEN IF WE REGARD THIS AS COMMERCIAL SPEECH, THE REGULATION IS STILL UNCONSTITUTIONAL. HE SAID THE GOVERNMENT CAN'T ENGAGE IN VIEWPOINT DISCRIMINATION WHEN IT REGULATES COMMERCIAL SPEECH. THIS IS VIEWPOINT DISCRIMINATION. THE GOVERNMENT ALSO CLAIMED AN INTEREST IN THE ORDERLY FLOW OF COMMERCE. AND JUSTICE ALITO SAID THIS DOESN'T MEET AN IMMEDIATE SCRUTINY. THIS ISN'T NARROWLY TAILORED TO PREVENT INVIDIOUS DISCRIMINATION. BETH: WELL, WE SAID THERE IS MORE THAN ONE OPINION HERE. ERWIN: JUSTICE KENNEDY HERE WROTE A SEPARATE OPINION, JOINED BY JUSTICES GINSBURG, SOTOMAYOR, AND KAGAN. JUSTICE KENNEDY WANTED TO STRESS THIS REGULATION IS A VIEWPOINT DISCRIMINATION. IF THE BAND HAD CHOSEN A TITLE THAT WAS FAVORABLE TO ASIAN-AMERICANS, THEY COULD HAVE REGISTERED THE TRADEMARK. BUT IT WAS DEROGATORY TO ASIAN-AMERICANS. THEY COULDN'T. AND JUSTICE KENNEDY WANTED TO STRESS THAT VIEWPOINT DISCRIMINATION IS VIRTUALLY NEVER ALLOWED UNDER THE FIRST AMENDMENT BECAUSE IT OPENS THE DOOR TO TOO MUCH GOVERNMENT CENSORSHIP. BETH: SO, WHAT ARE THE IMPLICATIONS FOR THE LOWER FEDERAL COURTS HERE? ERWIN: THIS IS ONE OF THE FIRST INSTANCE IN AMERICAN HISTORY WHERE THE SUPREME COURT HAS EVER FOUND A PROVISION OF TRADEMARK LAW OR ANY INTELLECTUAL PROPERTY LAW TO VIOLATE THE FIRST AMENDMENT. ALL COPYRIGHT AND TRADEMARK LAW IS ABOUT REGULATING SPEECH. I THINK THIS IS GONNA OPEN THE DOOR TO MORE CHALLENGES. FOR INSTANCE, THERE'S A PROVISION IN THE LANHAM ACT THAT PROHIBITS REGISTRATION OR TRADEMARKS IF THEY'RE SCANDALOUS. THAT, TOO, IS GONNA BE SUBJECTED NOW TO A CHALLENGE. BUT MAYBE THE LARGEST SIGNIFICANCE OF THE CASE IS GONNA BE THAT ALL 8 JUSTICES SO EMPHATICALLY SAID THE GOVERNMENT NEVER CAN REGULATE SPEECH JUST BECAUSE IT'S OFFENSIVE, EVEN IF IT'S VERY DEEPLY OFFENSIVE. SUZANNA: I AGREE. I THINK THAT'S VERY IMPORTANT, AND I THINK WE MAY ALSO SEE A MINOR MODIFICATION OF THE DOCTRINE ON COMMERCIAL SPEECH. IF YOU PUT TOGETHER ALL OF THE OPINIONS, IT SEEMS AS IF COMMERCIAL SPEECH WILL BE SUBJECT TO STRICT SCRUTINY, NOT INTERMEDIATE SCRUTINY, IF IT IS BASED ON VIEWPOINT DISCRIMINATION. BETH: OK. LET'S MOVE ON TO OUR NEXT DECISION, "PACKINGHAM V. NORTH CAROLINA." THIS CASE INVOLVED A NORTH CAROLINA LAW THAT MADE IT A FELONY FOR A REGISTERED SEX OFFENDER TO ACCESS A COMMERCIAL SOCIAL NETWORKING WEBSITE, WHERE THE SEX OFFENDER KNOWS THAT THE SITE PERMITS MINOR CHILDREN TO BECOME MEMBERS OR TO CREATE OR MAINTAIN PERSONAL WEB PAGES. PACKINGHAM WAS CONVICTED OF TAKING INDECENT LIBERTIES WITH A MINOR WHEN HE WAS 21 YEARS OLD AND IS A REGISTERED SEX OFFENDER. AFTER GETTING A PARKING TICKET QUASHED BY A JUDGE, PACKINGHAM WENT ON FACEBOOK AND POSTED THE MESSAGE "GOD IS GOOD." HE WAS INDICTED UNDER THE NORTH CAROLINA LAW FOR GOING ON A WEBSITE WERE MINORS CAN BE PRESENT. HE WAS CONVICTED AND GIVEN A SUSPENDED SENTENCE. THE QUESTION BEFORE THE COURT WAS WHETHER THE NORTH CAROLINA LAW VIOLATED THE FIRST AMENDMENT'S "FREE SPEECH" CLAUSE. I'VE ALREADY SAID THIS WAS A WIN FOR FREE EXPRESSION, SO WE KNOW HOW THE COURT CAME DOWN ON THIS QUESTION. ERWIN, WHAT WAS ITS REASONING? ERWIN: THE COURT WAS UNANIMOUS IN RESULT, THOUGH SOMEWHAT DIVIDED IN REASONING, HERE, JUSTICE KENNEDY WROTE FOR A MAJORITY. JUSTICE KENNEDY, IN WRITING FOR THE MAJORITY HERE, TALKED ABOUT HOW THE INTERNET IS SUCH AN IMPORTANT PLACE FOR COMMUNICATION. HE SAID IN ORDER FOR SPEECH TO EXIST, THERE HAS TO BE A PLACE, AND THE INTERNET IS A UNIQUE MEDIUM. HE SPOKE OF HOW 7 OUT OF 10 AMERICANS ARE ON SOME FORM OF SOCIAL MEDIA. HE SAID THERE'S MORE PEOPLE ON FACEBOOK ACROSS THE WORLD THAN THE TOTAL POPULATION OF NORTH AMERICA. HE SAID EVEN IF THIS IS REGARDED AS A CONTENT NEUTRAL REGULATION OF SPEECH AND SUBJECTED TO INTERMEDIATE SCRUTINY, IT'S STILL UNCONSTITUTIONAL. HE TALKED ABOUT THE TREMENDOUS BREADTH OF THE NORTH CAROLINA LAW. HE SAID THIS WOULD KEEP PACKINGHAM FROM BEING ON AMAZON.COM, OR THE "NEW YORK TIMES," OR "WebMD" BECAUSE ALL OF THESE ARE INTERACTIVE SOCIAL MEDIA. BUT JUSTICE ALITO WROTE A CONCURRENCE. IT WAS JOINED BY THE CHIEF JUSTICE AND JUSTICE THOMAS. HE AGREED WITH THE RESULT OF THE MAJORITY, BUT HE DISAPPROVED OF WHAT HE CALLED THE BROAD LANGUAGE IN JUSTICE KENNEDY'S OPINION. HE SAID IT WAS UNDISCIPLINED DICTA AND LOOSE RHETORIC, AND HE SAID IT FAILED TO RECOGNIZE THE NEED THAT STATES HAVE TO REGULATE SEXUAL PREDATOR BEHAVIOR ONLINE. BETH: WELL, ERWIN, HOW DO YOU THINK JUSTICE... I MEAN, I THINK IT WAS--YEAH, JUSTICE KENNEDY'S OPINION IS GONNA PLAY OUT IN THE LOWER COURTS? I THINK THE GREATEST SIGNIFICANCE OF JUSTICE KENNEDY'S OPINION, IT'S AN EMPHATIC DECLARATION THAT THE INTERNET IS A UNIQUE MEDIUM FOR COMMUNICATION. I THINK THIS MEANS THAT ANY GOVERNMENT REGULATION OF SPEECH OVER THE INTERNET WILL COME TO THE COURT WITH A STRONG PRESUMPTION AGAINST ITS CONSTITUTIONALITY. SUZANNA: THAT'S RIGHT, BUT I THINK THERE ARE SOME OTHER ISSUES THAT MIGHT COME UP AS WELL. JUSTICE KENNEDY EQUATES THE INTERNET WITH PUBLIC SIDEWALKS. SO DOES THAT MEAN THAT THE PUBLIC FORUM DOCTRINE IS GOING TO APPLY IN FULL TO THE--TO ATTEMPTS TO LIMIT ACCESS TO CYBERSPACE? HE ALSO WROTE THAT EVEN CONVICTED CRIMINALS MIGHT RECEIVE LEGITIMATE BENEFITS FROM THE INTERNET. WHAT DOES THAT TELL US ABOUT ACCESS TO THE INTERNET FOR PRISONERS WHO ARE IN JAIL? AND THE OPINION EVEN ADDRESSES AN ISSUE THAT WASN'T BEFORE THE COURT. JUSTICE KENNEDY WROTE THAT IT WAS TROUBLING THAT THE LAW IMPOSES SEVERE RESTRICTIONS ON PERSONS WHO HAVE ALREADY SERVED THEIR SENTENCES. IS HE CALLING INTO QUESTION SEX OFFENDER REGISTRIES OR THE LIMITATIONS ON WHERE SEX OFFENDERS CAN LIVE OR WORK? I DON'T THINK THAT HE MEANT TO RAISE ALL OF THESE ISSUES, BUT THOSE QUESTIONS ARE OUT THERE NOW. BETH: OK. FINALLY, WE WANT TO TALK ABOUT WHAT MIGHT BE THE MOST HIGH-PROFILE RULING THE COURT HANDED DOWN THIS TERM. WE'VE SAVED IT FOR THE END OF THIS PANEL BECAUSE ALTHOUGH IT WAS ARGUED IN PART ON FIRST AMENDMENT GROUNDS, IT IS, IN A REAL SENSE, SUI GENERIS. THE CASES ARE "TRUMP V. INTERNATIONAL REFUGEE ASSISTANCE PROJECT" AND "TRUMP V. HAWAII," BETTER KNOWN AS THE "TRAVEL BAN CASES." LET'S REVIEW SOME HISTORY BEFORE WE DISCUSS WHAT THE COURT DID. ON JANUARY 27th, PRESIDENT TRUMP ISSUED AN EXECUTIVE ORDER THAT SUSPENDED THE U.S. REFUGEE PROGRAM FOR 120 DAYS; CAPPED THE NUMBER OF YEARLY REFUGEES AT 50,000, INSTEAD OF 110,000; AND BARRED IMMIGRANTS FROM 7 DESIGNATED COUNTRIES FOR 90 DAYS. THE 9th CIRCUIT COURT OF APPEALS UPHELD A PRELIMINARY INJUNCTION AGAINST THE ORDER ON THE GROUNDS OF RELIGIOUS DISCRIMINATION. THE PRESIDENT THEN ISSUED A NEW EXECUTIVE ORDER, THE ONE NOW BEFORE THE SUPREME COURT. LIKE THE ORIGINAL ORDER, IT SUSPENDS THE ENTIRE REFUGEE PROGRAM FOR 120 DAYS AND CAPS THE TOTAL NUMBER OF REFUGEES ADMITTED TO THE U.S. THIS YEAR TO 50,000, DOWN FROM 110,000. IT ALSO BARS IMMIGRANTS FROM SUDAN, SYRIA, IRAN, LIBYA, SOMALIA, AND YEMEN FOR 90 DAYS. THE FIRST EXECUTIVE ORDER, OR E.O., ALSO INCLUDED IRAQ, BUT THE SECOND DOES NOT. HOWEVER, THE SECOND E.O. DOES NOT EXCLUDE PEOPLE WHO HAVE THE LAWFUL RIGHT TO BE IN THE U.S., SUCH AS THOSE WITH VISAS OR THOSE HOLDING GREEN CARDS. THE 4th CIRCUIT COURT OF APPEALS AFFIRMED IN AN INJUNCTION AGAINST THE SECOND EXECUTIVE ORDER, CONCLUDING THAT IT WAS BASED ON IMPERMISSIBLE RELIGIOUS ANIMUS. SOON THEREAFTER, THE 9th CIRCUIT AFFIRMED A LOWER COURT INJUNCTION THAT ALSO KEPT THIS E.O. FROM GOING INTO EFFECT. THE 9th CIRCUIT, THOUGH, RULED ON STATUTORY GROUNDS, SAYING THAT THE DISCRIMINATION BASED ON NATIONALITY WAS UNJUSTIFIED AND VIOLATED FEDERAL LAW. THE UNITED STATES GOVERNMENT ASKED FOR A STAY OF THESE INJUNCTIONS AND ALSO ASKED FOR THE SUPREME COURT TO GRANT REVIEW. SO, ERWIN, WHAT DID THE SUPREME COURT DO? THE SUPREME COURT GRANTED REVIEW IN BOTH OF THESE CASES AND PUT THEM ON THE ORAL ARGUMENT CALENDAR FOR OCTOBER 2017. THE COURT ALSO PARTIALLY LIFTED THE INJUNCTION TO ALLOW THE TRAVEL BAN, IN PART, TO GO INTO EFFECT. THE SUPREME COURT SAID THOSE WHO DO NOT HAVE A BONA FIDE RELATIONSHIP WITH INDIVIDUALS OR INSTITUTIONS IN THE UNITED STATES WILL STILL BE COVERED BY THE TRAVEL BAN, AND THE TRAVEL BAN CAN GO INTO EFFECT AS TO THEM. BUT THOSE WHO DO HAVE A BONA FIDE RELATIONSHIP WITH THE UNITED STATES, THE INJUNCTION WILL REMAIN IN EFFECT AS A TRAVEL BAN, AND THEY WILL CONTINUE TO BE ABLE TO COME TO THE UNITED STATES. AND THE COURT SAID A BONA FIDE RELATIONSHIP IS A SITUATION WHERE THERE'S A FORMAL, DOCUMENTED RELATIONSHIP THAT'S CREATED IN THE ORDINARY COURSE. IT CAN'T BE A RELATIONSHIP THAT'S CREATED FOR PURPOSE OF CIRCUMVENTING THE TRAVEL BAN. WHAT THE COURT SAID THAT IT WAS DOING HERE WAS BALANCING THE EQUITIES IN ORDER TO COME TO THIS CONCLUSION. SUZANNA: THERE'S A NUMBER OF INTERESTING ASPECTS TO THIS CASE. FIRST, OF COURSE, THE TRADITIONAL CONSIDERATION IN DECIDING WHETHER TO ISSUE AN INJUNCTION OR A STAY IS WHETHER THE PARTY SEEKING IT IS LIKELY TO PREVAIL ON THE MERITS. AND, IN FACT, 3 JUSTICES-- JUSTICES ALITO, THOMAS, AND GORSUCH-- DISSENTED, IN PART, BECAUSE THEY THOUGHT THE GOVERNMENT WAS LIKELY TO PREVAIL ON THE MERITS, AND THEREFORE THE STAY SHOULD HAVE BEEN ISSUED IN FULL AND NOT JUST PARTLY. BUT THE MAJORITY SAID NOTHING ABOUT THE MERITS OR ABOUT WHETHER THE GOVERNMENT WAS LIKELY TO PREVAIL, WHICH MEANS WE DON'T HAVE VERY MUCH INFORMATION ON HOW THE COURT--WHAT THE COURT THINKS OF THE MERITS OR HOW THEY MIGHT DECIDE THIS CASE OR ON WHAT GROUNDS. ALSO, THE COURT NEVER INDICATED EXACTLY WHAT RIGHTS OR INTERESTS WERE AT STAKE FOR THOSE WHO WERE CHALLENGING THE BAN. INSTEAD, AS ERWIN SAID, THE COURT SPOKE OF THE EQUITIES AND THE RELATIVE BURDENS ON THE PARTIES. TWO DAYS AFTER THE SUPREME COURT HANDED DOWN THIS ORDER ON WEDNESDAY, JUNE 28th, THE TRUMP ADMINISTRATION ISSUED GUIDELINES TO EMBASSIES AS TO HOW IT WAS GONNA DEFINE A BONA FIDE RELATIONSHIP TO INDIVIDUALS OR INSTITUTIONS IN THE UNITED STATES. AND IT'S WORTH LOOKING TO THE CATEGORIES AS THE TRUMP ADMINISTRATION DEFINED THEM. THEY SAID THEY WOULD FIND A BONA FIDE RELATIONSHIP FOR PARENTS OR PARENTS-IN-LAW; SPOUSES; CHILDREN; ADULT SONS-IN-LAW AND DAUGHTERS-IN-LAW; SIBLINGS, WHOLE OR HALF; AND STEP RELATIONSHIPS. BUT THEY SAID THERE'S NOT A BONA FIDE RELATIONSHIP FOR GRANDPARENTS AND GRANDCHILDREN AUNTS, UNCLES, NIECES AND NEPHEWS, BROTHERS- AND SISTER-IN-LAWS, FIANCEES, OR OTHER EXTENDED FAMILY. AFTER THAT, THE TRUMP ADMINISTRATION ISSUED A CLARIFICATION AND SAID IT WOULD FIND THAT FIANCEES WERE IN A BONA FIDE RELATIONSHIP. ON JULY 13th, A FEDERAL DISTRICT COURT IN HAWAII SAID THAT THE TRUMP ADMINISTRATION HAD TOO NARROWLY INTERPRETED THE SUPREME COURT OPINION. THE HAWAII DISTRICT COURT SAID, FOR INSTANCE, THAT GRANDPARENTS AND AUNTS AND UNCLES ARE IN A BONA FIDE RELATIONSHIP. I HAVE TO SAY, AS A GRANDPARENT, I STRONGLY AGREE WITH HAWAII COURT HERE. [LAUGHTER] SUZANNA: I THINK THERE'S STILL GONNA BE A LOT OF LITIGATION ABOUT THE GUIDANCE, THE PRINCIPLES THAT THE TRUMP ADMINISTRATION HAS PUT OUT BEYOND JUST WHAT HAWAII HAS DONE. I THINK THERE'S ALSO ANOTHER INTERESTING ISSUE TO WATCH, AND THAT IS WHEN THE COURT GRANTED "CERT," THEY ORDERED THE PARTIES TO ADDRESS THE QUESTION WHETHER THE TRAVEL--WHETHER THE CHALLENGES TO THE TRAVEL BAN HAD BECOME MOOT ON JUNE 14th, 90 DAYS AFTER THE ISSUANCE OF A 90-DAY TRAVEL BAN. I THINK THAT THERE'S ALSO A QUESTION OF WHETHER IT MIGHT BECOME MOOT LATER THAN THAT. THE SECOND EXECUTIVE ORDER REQUIRES THE GOVERNMENT TO REVIEW ITS PROCEDURES AND THE PROCEDURES OF FOREIGN COUNTRIES TO DETERMINE WHETHER THE IMMIGRATION POLICIES ARE WORKING WELL, AND THE FOREIGN GOVERNMENTS ARE SUPPOSED TO RESPOND. ALL OF THAT, INCLUDING THE RESPONSE, IS SUPPOSED TO TAKE PLACE WITHIN 50 DAYS. AND, OF COURSE, 50 DAYS IS BEFORE THE COURT IS GOING TO HEAR IT IN ORAL ARGUMENT. SO THAT MIGHT BECOME MOOT AS WELL. BETH: SO, DEFINITELY LOTS OF QUESTIONS, PROBABLY LOTS OF LITIGATION. WE'RE GONNA HAVE TO WAIT AND SEE. I THINK WE HAVE ONE QUESTION. - WE HAVE A QUESTION-- - YEAH. FROM ONE OF OUR VIEWERS CONCERNING PACKINGHAM. AND THE QUESTION IS, "HOW WOULD THE CASE "AFFECT A PROHIBITION AGAINST ACCESSING THE INTERNET FOR A CIVILLY COMMITTED SEXUALLY VIOLENT PREDATOR?" ANYONE WANT TO TAKE THAT? SUZANNA: I THINK AS ERWIN POINTED OUT, THAT WILL STILL COME WITH A PRESUMPTION OF UNCONSTITUTIONALITY. AND THE QUESTION WILL BE WHETHER THE STATE CAN SHOW THAT THERE IS A COMPELLING INTEREST. AND I THINK A CIVILLY-- AN ACTUALLY CIVILLY COMMITTED SEXUAL PREDATOR, AS OPPOSED TO SOMEONE WHO IS SIMPLY ON THE SEXUAL OFFENDERS LIST-- OR A REGISTRY-- I THINK THAT THE GOVERNMENT MIGHT HAVE AN EASIER TIME SHOWING A COMPELLING INTEREST. ERWIN: I AGREE WITH SUZANNA. IF SOMEBODY IS ACTUALLY CIVILLY COMMITTED, THEN THERE'S A SUBSTANTIAL RESTRICTION OF LIBERTY, AND THEY'RE IN ESSENCE TREATED LIKE PRISONERS, AND THE GOVERNMENT'S GONNA BE ABLE TO RESTRICT ACCESS TO THE INTERNET, MUCH MORE THAN THOSE IN THE GENERAL POPULATION. ALSO, I THINK IT'S IMPORTANT TO EMPHASIZE THAT I THINK EVERY ONE OF THE JUSTICES WHO PARTICIPATED IN THE CASE SAID A STATE CAN KEEP THOSE WHO ARE REGISTERED SEX OFFENDERS THAT ARE IN CONTACT TO MINORS OVER THE INTERNET. THE PROBLEM WITH NORTH CAROLINA LAW, IT'S SO MUCH BROADER THAN THAT. THANKS, ERWIN, AND THANKS, SUZANNA. WE WILL BE LOOKING AT OPINIONS ADDRESSING THE FOURTH AMENDMENT NEXT. HELLO. I'M JIM CHANCE. IN AN UNUSUAL COINCIDENCE, ALL OF THE FOURTH AMENDMENT CASES THIS TERM CAME TO THE COURT IN THE CONTEXT OF CIVIL CASES SEEKING MONEY DAMAGES. WE LOOK AT 2 OF THEM. IN "MANUEL V. CITY OF JOLIET," ELIJAH MANUEL BROUGHT A CLAIM BASED ON THE FOURTH AMENDMENT TO CONTEST THE LEGALITY OF HIS PRETRIAL CONFINEMENT. ERWIN, WHAT WERE THE FACTS IN THAT CASE? ERWIN: ELIJAH MANUEL WAS A PASSENGER IN A CAR BEING DRIVEN BY HIS BROTHER. THE POLICE STOPPED THE CAR FOR MAKING A TURN WITHOUT A SIGNAL. THE OFFICER ORDERED MANUEL AND HIS BROTHER OUT OF THE CAR. THE OFFICER OBSERVED THAT MANUEL HAD A VIAL THAT CONTAINED PILLS. THE OFFICER ASKED MANUEL WHAT WAS IN THE VIAL. MANUEL SAID VITAMINS. THE OFFICER FELT HE HAD HEARD THAT ONE BEFORE. HE THOUGHT THAT IT WAS ECSTASY THAT WAS IN THE VIAL. HE DID A QUICK FIELD TEST THAT CAME BACK NEGATIVE. NONETHELESS, HE ARRESTED MANUEL, BELIEVING THEY WERE ILLEGAL DRUGS. A TEST WAS DONE AT THE STATION HOUSE, AND THE PILLS CAME BACK NEGATIVE FOR ANY ILLEGAL SUBSTANCE. BUT THE OFFICER CONVINCED A LAB TECHNICIAN TO LIE AND SAY THAT ONE OF THE PILLS TESTED POSITIVELY FOR ECSTASY. THE GOVERNMENT THEN WENT TO COURT AND GOT THE JUDGE TO ISSUE AN ORDER THAT MANUEL BE DETAINED IN CUSTODY PENDING A TRIAL FOR POSSESSION OF ILLEGAL SUBSTANCES. THE ILLINOIS CRIME LAB DID A DEFINITIVE TEST, AND IT TURNS OUT THESE REALLY WERE VITAMINS. NONETHELESS, THE STATE DIDN'T IMMEDIATELY RELEASE MANUEL. ALTOGETHER, HE WAS HELD IN CUSTODY FOR 48 DAYS BEFORE HE WAS RELEASED. JIM: BUT WHAT WAS THE NATURE-- WHAT WAS THE CHARGE IN MANUEL'S CIVIL CASE AGAINST THE CITY, LAURIE? LAURIE: WELL, MANUEL BROUGHT A 1983 ACTION BOTH AGAINST THE CITY OF JOLIET AND SOME OF THE INDIVIDUAL OFFICERS SAYING THAT HIS FOURTH AMENDMENT RIGHTS HAD BEEN VIOLATED IN 2 WAYS: FIRST, BY ARRESTING HIM AT THAT INITIAL STOP WITHOUT ANY REASON, AND SECOND, BY DETAINING HIM IN POLICE CUSTODY FOR 48 DAYS BASED UPON TOTALLY MADE UP EVIDENCE. JIM: WELL, HOW DID HE FARE IN THE LOWER COURTS? NOT SO WELL. THE FEDERAL COURT ACTUALLY DISMISSED THE SUIT AS TIME-BARRED, BECAUSE HE FILED IT 2 YEARS AFTER HIS RELEASE FROM CUSTODY. AND BECAUSE IT FOUND THAT THAT PRETRIAL DETENTION AFTER THE JUDGE HAD FOUND PROBABLE CAUSE COULD NOT BE THE BASIS FOR A FOURTH AMENDMENT CLAIM, THE APPELLATE COURT THEN AFFIRMED. JIM: WHAT DID THE SUPREME COURT DO, ERWIN? ERWIN: THE SUPREME COURT HAD 2 ISSUES BEFORE IT. FIRST, IS THERE A CAUSE OF ACTION UNDER SECTION 1983 IN THE FOURTH AMENDMENT FOR WRONGFUL DETENTION, ESPECIALLY WHERE A JUDGE HAS APPROVED THE DETENTION? AND IF SO, SECOND, WHEN DOES THE STATUTE OF LIMITATIONS BEGIN TO RUN? DOES THE STATUTE OF LIMITATIONS ACCRUE WHEN THE PERSON IS TAKEN INTO CUSTODY OR ONLY WHEN THE PERSON IS RELEASED FROM CUSTODY? THE COURT ADDRESSED ONLY THE FIRST OF THESE QUESTIONS. THE COURT RULED 6-2 THAT THERE IS A CAUSE OF ACTION UNDER SECTION 1983 IN THE FOURTH AMENDMENT FOR WRONGFUL DETENTION, EVEN IF A JUDGE HAS APPROVED DETENTION. BUT AS THE LATTER QUESTION, THE COURT SAID THAT THE COURT OF APPEALS HADN'T YET ADDRESSED IT, SO THE SUPREME COURT REMANDED IT TO THE 7th CIRCUIT. I DO THINK THIS CASE IS SIGNIFICANT BECAUSE IT'S GONNA PROVIDE A CONSTITUTIONAL REMEDY FOR PEOPLE LIKE MANUEL WHO ARE HELD IN THIS UNLAWFUL PRETRIAL DETENTION. THANKS. IN OUR SECOND CASE, "COUNTY OF LOS ANGELES V. MENDEZ," THE CIVIL COMPLAINT COULD ONLY BE BROUGHT UNDER THE FOURTH AMENDMENT BECAUSE OF THE 9th CIRCUIT'S SO-CALLED "PROVOCATION RULE." UNDER THAT RULE, IF A POLICE VIOLATION OF THE FOURTH AMENDMENT LEADS TO A SITUATION WHERE OFFICERS REASONABLY USE FORCE THAT INFLICTS INJURIES, THEY CAN STILL BE HELD LIABLE FOR THOSE INJURIES. ERWIN, HOW DID THE PROVOCATION RULE COME BEFORE THE COURT? THE POLICE HAD AN ARREST WARRANT FOR SOMEBODY BELIEVED TO BE ARMED AND DANGEROUS. THEY THOUGHT THAT THE PERSON WAS HIDING IN A HOUSE. POLICE WENT TO THE HOUSE, AND THEY DID A SEARCH, EVEN THOUGH THEY DIDN'T HAVE A SEARCH WARRANT FOR THE HOME. THEY DIDN'T FIND THE PERSON THEY WERE LOOKING FOR. THERE WAS A SHACK IN THE BACKYARD WITH REGARD TO THAT HOUSE. THE POLICE WENT TO THE SHACK AND THEY ENTERED. THEY DIDN'T KNOCK AND ANNOUNCE, AS THE FOURTH REQUIRES. THEY DIDN'T HAVE A WARRANT TO ENTER. A MAN AND A WOMAN IN BED IN THE SHACK. AND THE MAN IN THE BED PICKED UP A BB GUN THAT LOOKED LIKE A RIFLE. AND THE POLICE IMMEDIATELY SHOT BOTH THE MAN AND THE WOMAN AND INFLICTED VERY SERIOUS INJURIES. LAURIE: AND THE FEDERAL DISTRICT COURT FOUND THAT ALTHOUGH THE USE OF FORCE WAS DEEMED REASONABLE, IN THE FACE OF WHAT THE OFFICERS THOUGHT WAS A THREAT BY MENDEZ, WHEN IT APPLIED THE 9th CIRCUIT PROVOCATION RULE, IT FOUND THAT THE OFFICERS WERE NONETHELESS LIABLE FOR USING EXCESSIVE FORCE, BECAUSE THIS WHOLE NEED FOR THE USE OF FORCE CAME BY THEIR INITIAL FOURTH AMENDMENT VIOLATION, AND THE 9th CIRCUIT UPHELD THAT RULING. JIM: WHAT DID THE SUPREME COURT THINK OF THE PROVOCATION RULE? ERWIN: THE SUPREME COURT REJECTED THE PROVOCATION RULE. THE SUPREME COURT SAID THERE CANNOT BE LIABILITY FOR EXCESS OF FORCE WHEN THE USE OF FORCE IS REASONABLE, BUT, THE SUPREME COURT SAID, THERE CAN BE DAMAGES FOR FOURTH AMENDMENT VIOLATION, IF IT WAS SHOWN THAT THE HARMS WERE PROXIMATELY CAUSED BY THE FOURTH AMENDMENT VIOLATION. THE COURT HERE REMANDED THE CASE TO THE 9th CIRCUIT TO DETERMINE WHETHER OR NOT THE INJURIES SUFFERED BY MENDEZ AND HIS WIFE COULD BE SHOWN TO BE PROXIMATELY CAUSED BY THE FOURTH AMENDMENT VIOLATION. I THINK IT'S IMPORTANT TO NOTE THE COURT EXPLICITLY SAID IT WASN'T GOING TO ARTICULATE THE STANDARD FOR PROXIMATE CAUSE. LAURIE: WHAT THE COURT DID SAY, HOWEVER, TO THE LOWER FEDERAL COURT IS THAT THEY SHOULD REMEMBER THE PRECEDENT OF "GRAHAM V. CONNOR," WHICH IS HAVING THE COURTS LOOK AT THE REASONABLENESS FROM THE TOTALITY OF CIRCUMSTANCES AND THE PERSPECTIVE OF A REASONABLE OFFICER ON THE SCENE. THANKS, LAURIE, ERWIN. WE WILL BE RIGHT BACK. THE FIFTH AMENDMENT TO THE "CONSTITUTION" PROTECTS A NUMBER OF RIGHTS AND LIBERTIES. THIS TERM, THE COURT HEARD CASES TESTING A BROAD RANGE OF THOSE. OUR FIRST DECISION, "SESSIONS V. MORALES-SANTANA" CHALLENGED A PROVISION OF THE IMMIGRATION AND NATIONALITY ACT, OR INA, FOR A VIOLATION OF THE FIFTH AMENDMENT'S "DUE PROCESS" CLAUSE. A SECTION OF THE INA PROVIDES U.S. CITIZENSHIP TO CHILDREN BORN ABROAD TO AN UNWED U.S. CITIZEN PARENT AND A NON-CITIZEN PARENT IF THE CITIZEN PARENT LIVED IN THE U.S. FOR A CERTAIN NUMBER OF YEARS PRIOR TO THE CHILD'S BIRTH. UNDER THE LAW, UNWED U.S. CITIZEN FATHERS OF FOREIGN-BORN CHILDREN MUST HAVE LIVED IN THE U.S. FOR 5 YEARS PRIOR TO THE OVERSEAS BIRTH. BUT AN EXCEPTION FOR UNWED U.S. CITIZEN MOTHERS OF SUCH CHILDREN REQUIRES THAT THEY MUST HAVE ONLY LIVED IN THE U.S. FOR 1 YEAR PRIOR TO GIVING BIRTH. MORALES-SANTANA WAS BORN IN THE DOMINICAN REPUBLIC TO A FATHER WHO HAD LEFT THE U.S. JUST 20 DAYS SHY OF MEETING THE LEGAL REQUIREMENT FOR GRANTING HIS SON U.S. CITIZENSHIP. MORALES-SANTANA OPPOSED HIS REMOVAL TO THE DOMINICAN REPUBLIC BY ASSERTING THAT THE DIFFERENT REQUIREMENTS FOR THE CHILDREN OF U.S. CITIZEN FATHERS AND MOTHERS VIOLATED THE EQUAL PROTECTION PRINCIPLE IMPLICIT IN THE FIFTH AMENDMENT'S "DUE PROCESS" CLAUSE. SO, LAURIE, WHAT DID THE COURT DECIDE? JUSTICE GINSBURG WROTE FOR A UNANIMOUS COURT AND SAID THAT THE DIFFERENCE BETWEEN THE TWO STANDARDS ACTUALLY DID VIOLATE THE "EQUAL PROTECTION" CLAUSE AND WERE BASED UPON OUTDATED GENDER STEREOTYPES. WHEN YOU HAVE GENDER DISCRIMINATION, YOU HAVE TO HAVE A HEIGHTENED SCRUTINY AND COMPELLING INTEREST BY THE GOVERNMENT. AND IN THIS PARTICULAR CASE, THEY HAD NOT MET THAT STANDARD. BETH: AND THE REMEDY, EVAN? EVAN: WELL, THAT'S THE PART THAT DIDN'T WORK SO WELL FOR MORALES-SANTANA. THE COURT AGREED WITH HIM ABOUT THE UNCONSTITUTIONALITY OF THE DIFFERENTIAL TREATMENT, BUT IT DISAGREED WITH HIM ON HOW TO RESOLVE THAT DIFFERENCE. SO, NORMALLY, WHEN AN EXCEPTION IS IMPROPERLY EXTENDED TO ONE GROUP AND DENIED TO ANOTHER, THE REMEDY IS TO EXTEND THE EXCEPTION TO THE EXCLUDED GROUP. BUT HERE, THE COURT SAID IT'S CLEAR THAT THE ORIGINAL CONGRESS THAT ENACTED THIS LAW WOULDN'T HAVE WANTED THAT EXTENSION TO BE MADE. INSTEAD, THAT CONGRESS WOULD HAVE PREFERRED TO GIVE THE EXCEPTION TO NOBODY AT ALL. SO UNTIL CONGRESS ACTS TO THE CONTRARY, THE RULE THAT CURRENTLY APPLIES TO CITIZEN FATHERS WILL APPLY TO CITIZEN MOTHERS AS WELL. BETH: OK. FROM DUE PROCESS NOW TO DOUBLE JEOPARDY. UNDER THAT CLAUSE OF THE FIFTH AMENDMENT, THE ISSUE PRECLUSION PRINCIPLE MEANS THAT WHEN AN ISSUE OF ULTIMATE FACT HAS ONCE BEEN DETERMINED BY A VALID AND FINAL JUDGMENT, THAT ISSUE CANNOT AGAIN BE LITIGATED BETWEEN THE SAME PARTIES IN ANY FUTURE LAWSUIT. IN "BRAVO-FERNANDEZ V. UNITED STATES," JUAN BRAVO-FERNANDEZ PAID A BRIBE TO HECTOR MARTINEZ-MALDONADO, THEN A SENATOR SERVING THE COMMONWEALTH OF PUERTO RICO. THE BRIBE WAS NOT A CASH PAYMENT BUT AN ALL-EXPENSES-PAID TRIP TO LAS VEGAS, INCLUDING A $1,000 SEAT AT A PROFESSIONAL BOXING MATCH. A FEDERAL GRAND JURY INDICTED BOTH MEN FOR FEDERAL PROGRAM BRIBERY, CONSPIRACY TO VIOLATE THE BRIBERY STATUTE, AND TRAVELING IN INTERSTATE COMMERCE TO FURTHER THE VIOLATIONS OF THE BRIBERY STATUTE AND VIOLATION OF THE TRAVEL ACT. SO, FOLLOWING A 3-WEEK TRIAL, THE JURY CONVICTED BOTH MEN OF THE BRIBERY OFFENSE BUT ACQUITTED THEM OF THE CONSPIRACY AND TRAVEL ACT CHARGES. THE COURT OF APPEALS FOR THE 1st CIRCUIT VACATED THE BRIBERY CONVICTION BECAUSE OF AN ERROR IN HOW THE JURY WAS INSTRUCTED AND REMANDED THE CASE FOR FURTHER PROCEEDINGS. THE TWO MEN ARGUED THAT THEY COULD NOT BE RETRIED UNDER THE BRIBERY STATUTE BECAUSE THE ISSUE PRECLUSION DOCTRINE PROHIBITED IT. SO EVAN, WHAT DO THE SUPREME COURT THINK OF THEIR ARGUMENT? UH, THE COURT REJECTED IT. THE GOVERNMENT HAD ARGUED THAT THIS CASE FELL UNDER THE COURT'S EARLIER DECISION IN "UNITED STATES V. POWELL" WHICH RECOGNIZED AN EXCEPTION TO THE ISSUE PRECLUSION DOCTRINE WHEN THE JURY RETURNS VERDICTS THAT ARE IRRECONCILABLY INCONSISTENT REGARDING WHATEVER ISSUE IS IN QUESTION. IN THIS CASE, THE JURY HAD CONVICTED THE TWO MEN OF BRIBERY FOR THE TRIP TO VEGAS BUT ACQUITTED THEM OF THE CONSPIRACY AND TRAVEL ACT CHARGES WHICH WERE UNCONTESTED. BRAVO-FERNANDEZ AND MARTINEZ-MALDONADO RESPONDED THAT THEIR CASE WAS DISTINGUISHABLE FROM "POWELL" BECAUSE THEIR CONVICTION HAD BEEN VACATED BY THE APPELLATE COURT, AND BEING VACATED COULDN'T BE INCONSISTENT WITH ANYTHING. BUT THE COURT DISAGREED WITH THAT AND FOUND "POWELL" CONTROLLING BECAUSE THE VERDICT WAS VACATED FOR REASONS THAT WERE UNRELATED TO THE UNDERLYING LOGIC OF THE ISSUE. JUSTICE GINSBURG WROTE THAT THE BURDEN OF INVOKING THE ISSUE PRECLUSION DOCTRINE IS ON THE DEFENDANTS. AND WHEN THERE'S NO WAY TO KNOW WHY THE JURY ACQUITTED ON OTHER COUNTS, THEN THE BURDEN ISN'T CARRIED. BETH: OK. IN ITS 1963 DECISION IN "BRADY V. MARYLAND," THE COURT HELD THAT THE GOVERNMENT VIOLATES THE "CONSTITUTION'S" DUE PROCESS CLAUSE IF IT WITHHOLDS EVIDENCE THAT IS FAVORABLE TO THE DEFENSE AND MATERIAL TO THE DEFENDANT'S GUILT OR PUNISHMENT. IN "TURNER V. UNITED STATES," THE QUESTION WAS WHETHER EVIDENCE WITHHELD BY THE GOVERNMENT IN A MURDER TRIAL WAS MATERIAL TO THE DEFENDANT'S GUILT OR PUNISHMENT UNDER "BRADY." EVAN, CAN YOU TELL US ABOUT THIS CASE? THIS IS A VERY FACT-INTENSIVE CASE INVOLVING A BRUTAL MURDER FOR WHICH A LARGE GROUP OF PEOPLE WERE CONVICTED. THE PRINCIPAL EVIDENCE OFFERED BY THE GOVERNMENT WAS TESTIMONY FROM TWO OTHER CO-DEFENDANTS WHO CONFESSED TO THEIR PARTICIPATION IN EXCHANGE FOR LENIENCY. THE GOVERNMENT PRESENTED SEVERAL OTHER WITNESSES WHO CORROBORATED VARIOUS ASPECTS OF THE TESTIMONY, AS WELL AS A VIDEOTAPE OF AN INTERVIEW WITH ONE OF THE DEFENDANTS IN WHICH HE DESCRIBED IN DETAIL HOW HE WAS PART OF THE GROUP THAT ASSAULTED AND MURDERED THE VICTIM. BETH: OK, SO WHERE DOES THE POSSIBLE "BRADY" MATERIAL COME IN HERE? LAURIE: WELL, BETH, AFTER THE CONVICTIONS BECAME FINAL, IT EMERGED THAT THE GOVERNMENT ACTUALLY HAD SEVERAL PIECES OF POSSIBLY EXCULPATORY EVIDENCE THAT IT DIDN'T DISCLOSE. AND SOME OF IT MIGHT HAVE ALLOWED THE DEFENDANTS TO ARGUE THAT SOMEONE ELSE, NOT THIS GROUP, WAS RESPONSIBLE FOR THE HORRIBLE CRIME. THE COURT'S OPINION ACTUALLY CONCEDES THAT THE EVIDENCE WAS FAVORABLE TO THE DEFENSE, SO THE ONLY ISSUE IS WHETHER IT WAS MATERIAL. BY THAT, WE MEAN WAS IT REASONABLY PROBABLE THAT THE DISCLOSURE WOULD HAVE AFFECTED THE VERDICT? THE SUPREME COURT, WHEN IT LOOKED AT THIS EVIDENCE SAID, WELL, IN THE CONTEXT OF THE ENTIRE RECORD, IT'S PROBABLY TOO LITTLE, TOO WEAK TO MEET THOSE "BRADY" STANDARDS; THAT SOME OF THIS EVIDENCE WAS CUMULATIVE REGARDING THE GROUP ATTACK, AND THAT ALTHOUGH THE SUPREME COURT DOES NOT CHANGE THE "BRADY" STANDARD BY THIS CASE, IN HOLDING THAT THEY DIDN'T MEET THE STANDARD, IT SUGGESTS THAT IT WILL BE VERY DIFFICULT IN CASES OF THEORIES OF ALTERNATIVE PERPETRATORS TO PERHAPS MEET THE STANDARD EVEN WHEN THE EVIDENCE IS POTENTIALLY EXCULPATORY. THANKS. BEFORE WE MOVE ON TO OUR FINAL DECISION IN THIS PANEL, JUST A REMINDER TO EMAIL US ANY QUESTIONS YOU HAVE AT THE ADDRESS AT THE BOTTOM OF THE SCREEN. OK, OUR FINAL FIFTH AMENDMENT DECISION INVOLVES THE "TAKINGS CLAUSE" WHICH GUARANTEES THAT PRIVATE PROPERTY WILL NOT BE TAKEN FOR PUBLIC USE WITHOUT JUST COMPENSATION. THERE ARE TWO KINDS OF TAKINGS UNDER THE CLAUSE. THE FIRST IS A DIRECT APPROPRIATION OF PROPERTY, AND THE SECOND IS CALLED A REGULATORY TAKING. THE LATTER IS WHEN A GOVERNMENT REGULATION REDUCES SO MUCH OF THE ECONOMIC VALUE OF A PROPERTY. THAT IS, IT HAS MADE IT FOR ALL PRACTICAL PURPOSES WORTHLESS TO THE OWNER. "MURR V. WISCONSIN" WAS A REGULATORY TAKINGS CASE. HERE THE MURRS HAD BOUGHT TWO SEPARATE BUT ADJACENT PIECES OF PROPERTY ALONG THE ST. CROIX RIVER IN THE 1960s. THEY HELD THE LOTS IN SEPARATE OWNERSHIP AND BUILT A SMALL RESIDENTIAL CABIN ON ONE OF THEM. WHEN THEY TRANSFERRED THE LOTS TO THEIR 4 CHILDREN, A LOCAL ORDINANCE MERGED THE OWNERSHIP OF THE TWO LOTS WITHOUT THE CHILDREN'S KNOWLEDGE. 10 YEARS LATER, THE MURRS' CHILDREN DECIDED TO MOVE THE CABIN TO A DIFFERENT PLACE ON ITS LOT AND SELL THE OTHER LOT TO FINANCE THAT PROJECT. BUT NOW THEY FOUND OUT THE LAW CONSIDERED THE TWO LOTS TO BE MERGED AND ONLY AVAILABLE FOR SALE AS ONE PIECE OF PROPERTY. THEY CHALLENGED THE LAW AS AN UNCONSTITUTIONAL TAKING. EVAN, WHAT WAS THE COURT'S THINKING ON THIS ISSUE? A 5-3 MAJORITY NOTED THAT THERE ARE TWO TESTS FOR WHETHER A REGULATORY TAKING HAS OCCURRED. AS YOU SAID EARLIER, A REGULATION THAT DENIES ALL ECONOMICALLY BENEFICIAL OR PRODUCTIVE USE OF THE LAND WILL REQUIRE COMPENSATION. BUT A REGULATION THAT IMPEDES THE USE OF THE PROPERTY WITHOUT DEPRIVING THE OWNER OF ALL ECONOMICALLY BENEFICIAL USE WILL STILL CONSTITUTE A TAKING BASED ON A COMPLEX OF FACTORS, WHICH INCLUDE THE ECONOMIC IMPACT OF THE REGULATION ON THE CLAIMANT, THE EXTENT TO WHICH THE REGULATION HAS INTERFERED WITH DISTINCT INVESTMENT-BACKED EXPECTATIONS, AND THEN THE CHARACTER OF THE GOVERNMENT ACTION. NOW A CENTRAL DYNAMIC OF THE COURT'S TAKINGS JURISPRUDENCE IS FLEXIBILITY, THAT IS TO SAY A RECOGNITION OF THE NEED TO BALANCE TWO COMPETING GOODS. ON THE ONE HAND, THERE IS THE INDIVIDUAL'S RIGHT TO EXERCISE FREEDOMS THAT ARE AT THE CORE OF OWNING PRIVATE PROPERTY. ON THE OTHER HAND, THERE'S THE GOVERNMENT'S POWER TO ADJUST RIGHTS FOR THE PUBLIC GOOD. LAURIE: AND EVAN, AS YOU SAID, IN STRIKING THIS BALANCE, THE COURT GAVE SOME GUIDANCE THAT SAID YOU HAVE TO COMPARE THE VALUE TAKEN FROM THE PROPERTY BY THE REGULATION TO THE VALUE THAT REMAINS IN THE PROPERTY AS A WHOLE, NOT JUST PART OF THE PROPERTY. AND AGAIN, WE HAVE TO LOOK AT A NUMBER OF FACTORS. THE COURT POINTED TO HOW WAS THE LAND TREATED UNDER STATE AND LOCAL LAWS, THE PHYSICAL CHARACTERISTICS OF THE LAND, AND THE PROSPECTIVE VALUE OF THE REGULATED LAND. AND THE COURT MUST DETERMINE WHETHER REASONABLE EXPECTATIONS ABOUT THE PROPERTY OWNERSHIP WOULD LEAD A LANDOWNER TO ANTICIPATE THAT HIS PROPERTY WOULD BE TREATED AS ONE PARCEL OR SEPARATE TRACKS. THE TEST IS AN OBJECTIVE ONE. AND THE SPECIFIC ISSUE IN THIS CASE IS WHAT IS THE PROPER UNIT OF THE PROPERTY AGAINST WHICH TO ASSESS THE EFFECT OF THE GOVERNMENT REGULATION? SO I'M SURE THE MOST IMPORTANT QUESTION TO THE MURRS WAS, DID THE COURT FIND IT UNCONSTITUTIONAL TAKING? LAURIE: NO, IT DID NOT. IT SAID, IN APPLYING THESE FACTORS TO THE MURRS' PROPERTY, THE COURT DECIDED THAT THE LAND SHOULD BE TREATED AS ONE UNIT. IT SAID THAT WAS THE RIGHT APPROACH BECAUSE, IN WISCONSIN STATE LAW, IT WAS TREATED AS ONE PARCEL. THAT THE LANDS WERE ACTUALLY CONTIGUOUS AND TOGETHER HAVE PHYSICAL CHARACTERISTICS OF A SINGLE LOT; AND, THAT THEIR LOCATION, THE MURRS COULD HAVE ANTICIPATED THAT THE PUBLIC REGULATION MIGHT HAVE AFFECTED THEIR USE OF THE PROPERTY. THE COURT ALSO SAID THAT WHILE THE MURRS COULD NOT SELL THE TWO LOTS DISTINCTIVELY AND SEPARATELY, THAT THERE WERE BENEFITS IN HAVING IT TOGETHER BOTH BY THE USE OF THE PROPERTY BEING INTEGRATED AND BY PRIVACY RIGHTS AS WELL. SO THE BOTTOM LINE IS THAT THE COURT FOUND THAT THE PROPER DENOMINATOR FOR DETERMINING THE EFFECT OF THE REGULATION IN THIS CASE WAS THE VALUE OF THE LOTS TOGETHER. YEAH, THERE WAS A DISSENT HERE BY THE CHIEF JUSTICE JOINED BY JUSTICES THOMAS AND ALITO. THEY DIDN'T DISAGREE WITH THE HOLDING IN THE CASE, BUT THEY DID REJECT THE MAJORITY'S MULTI-FACTOR TEST FOR FINDING A REGULATORY TAKING. AND THEY SAID THEY THOUGHT THAT THE "TAKINGS CLAUSE" PROTECTS PRIVATE PROPERTY RIGHTS AS STATE LAW CREATES AND DEFINES THEM. AND THEN THEY WROTE THAT THE MAJORITY'S NEW DEFINITION OF PRIVATE PROPERTY WAS, FOR THEM, TOO MALLEABLE AND UNDERMINED THE PROTECTION OF THE "TAKINGS CLAUSE." BETH: HMM, INTERESTING. THANKS, EVAN. THANKS, LAURIE. JIM WILL BE RIGHT BACK WITH EVAN AND LAURIE IN A MINUTE TO LOOK AT OUR SIXTH AMENDMENT DECISIONS. THE RIGHTS OF TRIAL BY AN IMPARTIAL JURY IN AN OPEN COURT WITH THE ASSISTANCE OF COUNSEL ARE AMONG THE MOST IMPORTANT SAFEGUARDS OF INDIVIDUAL LIBERTY PROVIDED BY THE "CONSTITUTION." AND THIS TERM, THE COURT HEARD A NUMBER OF CASES ADDRESSING THESE GUARANTEES FOUND IN THE SIXTH AMENDMENT. IN THE FIRST CASE, "PENA-RODRIGUEZ V. COLORADO," THE COURT REVISITED AN ISSUE IT HAS SPOKEN TO AT LEAST TWICE BEFORE. WHEN CAN JURY DELIBERATIONS BE OPEN TO PUBLIC SCRUTINY AFTER A VERDICT HAS BEEN REACHED? PENA-RODRIGUEZ WAS CONVICTED OF SEXUAL ASSAULT ON TWO TEENAGE GIRLS. AFTER THE VERDICT WAS ANNOUNCED, TWO OF THE JURORS VOLUNTARILY TOLD DEFENSE COUNSEL THAT ANOTHER JUROR HAD MADE DEROGATORY COMMENTS ABOUT PENA-RODRIGUEZ BASED ON HIS MEXICAN HERITAGE. THE ALLEGEDLY OFFENDING JUROR WAS REPORTED TO HAVE SAID THAT IN HIS EXPERIENCE AS A FORMER LAW ENFORCEMENT OFFICER, MEXICAN MEN WERE RAISED TO BELIEVE THEY COULD DO WHATEVER THEY WANTED WITH WOMEN AND THAT 9 TIMES OUT OF 10 WHEN CHARGED WITH SEXUAL ASSAULT THEY WERE GUILTY. THE COLORADO STATE TRIAL JUDGE DENIED THE DEFENSE'S MOTION FOR A NEW TRIAL UNDER COLORADO RULE 606(b) WHICH GENERALLY PROHIBITS A JUROR FROM TESTIFYING AS TO ANY STATEMENT MADE DURING DELIBERATIONS. LAURIE, WHAT WAS THE SUPREME COURT'S RESPONSE TO THIS? LAURIE: JIM, FIRST LET ME SAY THAT THIS RULE THAT JURORS CANNOT LATER TESTIFY ABOUT WHAT WENT ON DURING DELIBERATIONS IS REALLY NOT UNIQUE TO COLORADO. MOST STATES HAVE A RULE LIKE THIS. IN FACT, THE FEDERAL RULES OF EVIDENCE HAVE A RULE LIKE THIS. AND IT'S REFERRED TO AS THE "NO IMPEACHMENT RULE." IT'S ACTUALLY CONSIDERED AN IMPORTANT PROTECTION FOR THE JURY SYSTEM. AND, AS YOU MENTIONED, THE SUPREME COURT HAS TWICE REJECTED ATTEMPTS TO FIND EXCEPTIONS--FIRST IN 1987, IN THE "TANNER" CASE, WHERE YOU HAD A GROUP OF DRUNK JURORS DURING THE DELIBERATION, AND THEN, AGAIN, IN 19-- 2014, I SHOULD SAY, IN "WARGER V. SHAUERS," WHERE IT REJECTED A PROPOSED EXCEPTION FOR JURORS LYING DURING VOIR DIRE. BUT HERE, THE SUPREME COURT THEN FOUND WHEN A JUROR MAKES A CLEAR STATEMENT THAT HE OR SHE IS USING RACIAL STEREOTYPE OR ANIMUS TO CONVICT A CRIMINAL DEFENDANT, THEN THE SIXTH AMENDMENT REQUIRES THAT THE "NO IMPEACHMENT RULE" GIVE WAY TO THE DEFENDANT'S RIGHT TO A FAIR TRIAL. SO THIS IS A REALLY IMPORTANT DECISION IN OPENING UP JURY DELIBERATIONS TO SCRUTINY IN NEW WAYS. EVAN: YEAH, THE COURT SAID THAT TO QUALIFY FOR THIS EXCEPTION, THE RACIALLY DISCRIMINATORY STATEMENT MUST TEND TO SHOW THAT IT WAS A SIGNIFICANT MOTIVATING FACTOR IN THE JURORS' VOTE TO CONVICT, AND WHETHER THAT THRESHOLD SHOWING HAS BEEN MADE IS GOING TO BE VESTED IN THE SOUND DISCRETION OF THE TRIAL COURT BASED ON, YOU KNOW, THE CIRCUMSTANCES AS THEY'RE PRESENTED IN THAT CASE. AND THOSE CIRCUMSTANCES INCLUDE THE CONTENT AND TIMING OF THE ALLEGED STATEMENTS AND THE RELIABILITY OF THE PROFFERED EVIDENCE. THE COURT STRESSED THAT IT'S THE SYSTEMIC QUALITY OF RACE DISCRIMINATION THAT MAKES THIS EXTRAORDINARY, AND NOTABLY THE DECISION DOESN'T ADDRESS WHAT PROCEDURES A COURT MUST FOLLOW WHEN CONFRONTED WITH A MOTION FOR A NEW TRIAL BASED ON JUROR TESTIMONY OF RACIAL BIAS, NOR DID THE MAJORITY DECIDE WHAT QUANTUM OF RACE DISCRIMINATION EVIDENCE IS NECESSARY TO SET A VERDICT ASIDE. AND I THINK ONE OF THE BIGGEST QUESTIONS HERE IS, WHAT OTHER KINDS OF DISCRIMINATION MIGHT BE COVERED BY THIS RULING? WILL GENDER DISCRIMINATION QUALIFY, WHAT TYPE OF ETHNICITY CHALLENGES? WHAT ABOUT SEXUAL ORIENTATION? THOSE QUESTIONS AREN'T ANSWERED YET. OUR NEXT DECISION ALSO INVOLVED THE JURY IN A CRIMINAL TRIAL, BUT THIS TIME THE QUESTION WAS WHETHER IT WAS A VIOLATION OF THE RIGHT TO A PUBLIC TRIAL IF THE JUDGE CLOSED THE COURTROOM TO THE PUBLIC DURING VOIR DIRE BECAUSE THERE WAS ONLY ENOUGH ROOM FOR THE JURY VENIRE. THIS WAS "WEAVER V. MASSACHUSETTS." DURING VOIR DIRE FOR 16-YEAR- OLD KENTEL WEAVER'S MURDER TRIAL, THE POTENTIAL JURY POOL WAS SO LARGE THAT NOT ALL OF THEM COULD FIT IN AN OPEN COURTROOM. SO THE TRIAL JUDGE EXCLUDED EVERYBODY BUT THE JURY POOL FROM THE COURTROOM, INCLUDING WEAVER'S MOTHER AND HIS MINISTER. THIS HAPPENED BEFORE THE SUPREME COURT DECIDED "PRESLEY V. GEORGIA" IN 2010, RULING THAT THE RIGHT TO A PUBLIC TRIAL ALSO EXTENDS TO JURY SELECTION. BUT WEAVER'S LAWYER DIDN'T OBJECT TO THE EXCLUSION DURING JURY SELECTION AND DID NOT DISCUSS THE MATTER WITH WEAVER. THE STATE PRESENTED A STRONG CASE OF WEAVER'S GUILT, THE JURY CONVICTED HIM. WEAVER FILED A MOTION FOR A NEW TRIAL ARGUING THAT HIS TRIAL ATTORNEY HAD PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO THE COURTROOM CLOSURE. THE TRIAL COURT AGREED THAT THERE HAD BEEN A VIOLATION OF WEAVER'S RIGHT TO A PUBLIC TRIAL AND DETERMINED THAT DEFENSE COUNSEL HAD FAILED TO OBJECT BECAUSE OF INCOMPETENCE, INEFFICIENCY, OR INATTENTION. ON THE OTHER HAND, THE COURT FOUND WEAVER HAD NOT PRESENTED ANY EVIDENCE OR A LEGAL ARGUMENT ESTABLISHING PREJUDICE BECAUSE OF HIS LAWYER'S POOR PERFORMANCE AND HELD, FOR THAT REASON, THAT WEAVER WAS NOT ENTITLED TO A NEW TRIAL. BUT THERE WAS A PROCEDURAL QUESTION AT THE HEART OF THIS, WASN'T THERE, EVAN? EVAN: THAT'S RIGHT. THE DENIAL OF AN OPEN TRIAL IS WHAT'S CALLED A STRUCTURAL ERROR, WHICH MEANS THAT IT AFFECTS THE FUNDAMENTAL FRAMEWORK IN WHICH THE TRIAL PROCEEDS RATHER THAN SIMPLY BEING AN ISOLATED ERROR IN THE TRIAL PROCESS. GENERALLY, WITH STRUCTURAL ERRORS, THE DEFENDANT DOESN'T HAVE TO PROVE THAT THE CASE WAS PREJUDICED IN ORDER TO GET RELIEF. BUT THERE'S A DISAGREEMENT AMONG FEDERAL CIRCUIT COURTS AND SOME STATE COURTS OF LAST RESORT WHETHER THE DEFENDANT HAS TO DEMONSTRATE PREJUDICE WHEN THE STRUCTURAL ERROR IS NEITHER PRESERVED NOR RAISED ON DIRECT REVIEW BUT IS INSTEAD RAISED LATER IN A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL. SO THE JUSTICES GRANTED CERTIORARI IN WEAVER TO RESOLVE THAT DISAGREEMENT, BUT ONLY IN THE CONTEXT OF TRIAL COUNSEL'S FAILURE TO OBJECT TO THE CLOSURE OF THE COURTROOM DURING VOIR DIRE. JIM: AND, LAURIE, WHAT DID THE JUSTICES DECIDE? LAURIE: WELL, THEY SAID THAT ALTHOUGH THE RIGHT TO A PUBLIC TRIAL IS STRUCTURAL, IT IS ALSO SUBJECT TO SOME EXCEPTIONS. AND VIOLATION OF THAT RIGHT DOES NOT AUTOMATICALLY LEAD TO A FUNDAMENTALLY UNFAIR TRIAL AND AUTOMATIC REVERSAL. IT CALLED IT A STRUCTURAL ERROR BECAUSE OF THE DIFFICULTY OF ASSESSING THE EFFECT OF THIS ERROR AND BECAUSE THE RIGHT ACTUALLY PROTECTS SOME INTERESTS THAT DON'T BELONG TO THE DEFENDANT. BUT THE COURT SAID FAILING TO RAISE THE ERROR EARLIER DEPRIVED THE TRIAL COURT OF THE RIGHT AND ABILITY TO CURE THE VIOLATION OR EXPLAIN THE REASONS FOR THE CLOSURE. YEAH. WHEN THE OBJECTION IS RAISED LATER ON IN A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL DURING COLLATERAL ATTACK, THE PETITIONER HAS TO SHOW THAT THE ERROR LIKELY INFLUENCED THE OUTCOME OF THE TRIAL OR THAT IT RENDERED THE TRIAL FUNDAMENTALLY UNFAIR. THE MAJORITY FOUND THAT NEITHER OF THOSE WAS SATISFIED WITH RESPECT TO WEAVER. TWO MORE DECISIONS DEALING WITH INEFFECTIVE ASSISTANCE OF COUNSEL. FIRST, "BUCK V. DAVIS." DUANE BUCK, AN AFRICAN-AMERICAN, WAS CONVICTED OF CAPITAL MURDER BY A TEXAS JURY. UNDER TEXAS LAW, THE JURY COULD IMPOSE THE DEATH SENTENCE ONLY IF IT FOUND THAT BUCK WAS LIKELY TO COMMIT ACTS OF VIOLENCE IN THE FUTURE. BUCK'S ATTORNEY CALLED DR. WALTER QUIJANO, A COURT-APPOINTED PSYCHOLOGIST, TO TESTIFY AS TO THAT QUESTION BASED ON A REPORT DR. QUIJANO HAD WRITTEN AFTER EXAMINING BUCK. QUIJANO'S REPORT SAID THAT BUCK WAS UNLIKELY TO POSE A DANGER IN PRISON, BUT ALSO THAT BLACKS POSE AN INCREASED PROBABILITY OF VIOLENCE. EVAN, WAS THERE A PROCEDURAL ISSUE IN THIS ONE? THERE WAS. IN DENYING A CERTIFICATE OF APPEALABILITY TO BUCK, THE FIFTH CIRCUIT HAD HELD THAT HE FAILED TO SHOW EXTRAORDINARY CIRCUMSTANCES. CHIEF JUSTICE ROBERTS, WRITING FOR THE MAJORITY, HELD THAT THAT WAS REVERSIBLE ERROR BECAUSE THE COURT OF APPEALS HAD EXCEEDED THE PROPER SCOPE OF REVIEW FOR GRANTING THE CERTIFICATE OF APPEALABILITY. THE PROPER QUESTION, WROTE CHIEF JUSTICE ROBERTS, WAS LIMITED TO WHETHER THE DISTRICT COURT'S DENIAL OF RELIEF WAS DEBATABLE. REACHING THE EXTRAORDINARY CONSEQUENCES INQUIRY EFFECTIVELY CONSTITUTED A DECISION ON THE MERITS. AND SINCE THE COURT OF APPEALS HAD EFFECTIVELY REACHED THE MERITS, THE SUPREME COURT FOUND IT PROPER TO REACH THE MERITS AS WELL. JIM: AND WHEN IT DID THAT? LAURIE: WELL, THE SUPREME COURT-- A MAJORITY HELD THAT BUCK'S LAWYER HAD PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL; THAT NO REASONABLE LAWYER DEFENDING A BLACK PERSON WOULD, IN A PENALTY PHASE OF THAT TRIAL, CALL AN EXPERT WHO WOULD PROPOSE TO TESTIFY THAT BLACK PEOPLE ARE MORE DANGEROUS THAN THE GENERAL POPULATION. THE COURT ALSO FOUND PREJUDICE IN THAT THIS TESTIMONY APPEALED TO A POWERFUL RACIAL STEREOTYPE THAT BLACK PEOPLE ARE MORE VIOLENT. AND FOR THAT REASON, THE SUPREME COURT REJECTED THE DISTRICT COURT'S CONCLUSION THAT THE MENTION OF RACE DURING THE PENALTY PHASE WAS SOMEHOW DE MINIMIS. AS THE CHIEF JUSTICE WROTE, SOME TOXINS CAN BE DEADLY EVEN IN SMALL DOSES. THE COURT IN ERICK DAVILA'S MURDER TRIAL PROPOSED A JURY INSTRUCTION TO WHICH THE DEFENSE COUNSEL OBJECTED. THE COURT GAVE THE INSTRUCTION ANYWAY AND THE JURY CAME BACK WITH A GUILTY VERDICT. ON APPEAL, DAVILA'S APPELLATE LAWYER FAILED TO CHALLENGE THE COURT'S INSTRUCTION. LATER, DURING STATE HABEAS PROCEEDINGS, DAVILA'S NEW LAWYER FAILED TO CHALLENGE EITHER THE JURY INSTRUCTION OR THE FIRST APPELLATE LAWYER'S FAILURE TO CHALLENGE THE INSTRUCTION ON DIRECT APPEAL. THESE WERE THE FACTS IN OUR NEXT DECISION, "DAVILA V. DAVIS." EVAN, WHAT WAS THE QUESTION BEFORE THE SUPREME COURT IN THIS ONE? WELL, TO GET TO THAT, WE FIRST HAVE TO REVIEW SOME PRECEDENT. GENERALLY, A FEDERAL HABEAS COURT REVIEWING A STATE COURT CONVICTION WILL NOT CONSIDER CLAIMS THAT THE STATE COURT REFUSED TO HEAR BASED ON AN ADEQUATE AND INDEPENDENT STATE PROCEDURAL GROUND. A STATE PRISONER CAN OVERCOME THAT HURDLE IF HE OR SHE CAN ESTABLISH CAUSE TO EXCUSE THE PROCEDURAL DEFAULT AND DEMONSTRATE THAT HE OR SHE SUFFERED ACTUAL PREJUDICE FROM THE ALLEGED ERROR. BUT AN ATTORNEY ERROR DOESN'T QUALIFY AS CAUSE TO EXCUSE A PROCEDURAL ERROR UNLESS THE ERROR AMOUNTED TO CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF COUNSEL. THE COURT RULED IN 1991 IN "COLEMAN V. THOMPSON" THAT BECAUSE A PRISONER DOES NOT HAVE A CONSTITUTIONAL RIGHT TO COUNSEL IN STATE POST-CONVICTION PROCEEDINGS, INEFFECTIVE ASSISTANCE IN THOSE PROCEEDINGS DOESN'T QUALIFY AS CAUSE TO EXCUSE A PROCEDURAL DEFAULT. BUT THE COURT LATER ANNOUNCED A NARROW EXCEPTION TO THE "COLEMAN RULE." INEFFECTIVE ASSISTANCE BY A PRISONER'S STATE POST-CONVICTION COUNSEL IS CAUSE TO OVERCOME THE PROCEDURAL DEFAULT WHERE THE STATE EFFECTIVELY REQUIRES A DEFENDANT TO BRING THAT CLAIM FOR THE FIRST TIME IN STATE POST-CONVICTION PROCEEDINGS RATHER THAN ON DIRECT APPEAL. SO THE QUESTION HERE, IN "DAVILA V. DAVIS" WAS WHETHER THE COURT SHOULD EXTEND THAT EXCEPTION TO ALLOW FEDERAL COURTS TO CONSIDER INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. UH, SO DID IT EXTEND THE EXCEPTION, LAURIE? LAURIE: UH, NO, JIM. IT DID NOT. THE MAJORITY REASONED THAT THE RIGHT TO TRIAL COUNSEL IS REALLY THE KEY AND THAT THE EFFECTIVENESS OF THAT COUNSEL CANNOT REALLY BE ASSESSED UNTIL AFTER THE TRIAL IN THE POST-CONVICTION PROCEEDINGS. IF POST-CONVICTION COUNSEL DOESN'T RAISE THAT ISSUE, IT'S NOT GONNA GET REVIEWED. BUT THE 5-4 MAJORITY DID NOT SEE CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL OF APPELLATE COUNSEL AS POSING THE SAME RISK BECAUSE AT LEAST ONE COURT--THE TRIAL COURT-- WILL HAVE CONSIDERED THE CLAIM ASSUMING IT WAS PRESERVED ERROR. THE MAJORITY WAS ALSO AFRAID, I THINK, OF OPENING THE FLOODGATES TO DEFAULT CLAIMS OF APPELLATE INEFFECTIVE ASSISTANCE OF COUNSEL WHERE IT THINKS THAT ONLY AN INFINITESIMALLY SMALL NUMBER OF THOSE CASES WOULD ACTUALLY BE MERITORIOUS. JIM: THANKS. OUR FINAL DECISION IS "McWILLIAMS V. DUNN." IT ADDRESSES WHAT KIND OF MENTAL HEALTH EXPERT ASSISTANCE A STATE MUST GIVE TO AN INDIGENT DEFENDANT. THIS WAS ESSENTIALLY THE SAME QUESTION BEFORE THE COURT IN 1985, WHEN IT DECIDED "AKE V. OKLAHOMA." ONE MONTH AFTER THE COURT REACHED ITS DECISION IN "AKE," THE STATE OF ALABAMA CHARGED McWILLIAMS WITH MURDER, SEEKING THE DEATH PENALTY. DEFENSE COUNSEL MADE A PRETRIAL MOTION FOR A PSYCHIATRIC EVALUATION, INCLUDING MENTAL CONDITIONS THAT WERE RELEVANT TO FINDING MITIGATING CIRCUMSTANCES FOR THE PURPOSE OF SENTENCING IN THIS CAPITAL CASE. DURING THE SENTENCING PHASE, McWILLIAMS PRESENTED EVIDENCE OF MENTAL ILLNESS AND MULTIPLE HEAD INJURIES. A PROSECUTION EXPERT SAID THERE WAS NO EVIDENCE OF PSYCHOSIS. DEFENSE COUNSEL SUBPOENAED MENTAL HEALTH RECORDS FROM THE STATE PRISON WHICH DID NOT ARRIVE IN TIME FOR THE HEARING. THE JURY RECOMMENDED DEATH. AFTER THE HEARING, THE TRIAL COURT GRANTED McWILLIAMS' MOTION FOR NEUROLOGICAL EXAMS. DR. GOFF, A NEUROPSYCHOLOGIST EMPLOYED BY THE STATE DEPARTMENT OF MENTAL HEALTH, EXAMINED McWILLIAMS AND FILED HIS REPORT TWO DAYS BEFORE THE JUDICIAL HEARING. THE DAY BEFORE THE HEARING, DEFENSE COUNSEL RECEIVED MORE RECORDS SHOWING THAT McWILLIAMS WAS ON ANTI-PSYCHOTIC DRUGS. COUNSEL ASKED THE JUDGE FOR MORE TIME TO GET AN EXPERT OPINION TO EVALUATE THE NEW MATERIAL, BUT WAS GIVEN ONLY UNTIL 2 P.M. THAT AFTERNOON. THE COURT FOUND McWILLIAMS WAS FEIGNING MENTAL ILLNESS AND SENTENCED HIM TO DEATH. THE QUESTION WAS WHETHER McWILLIAMS RECEIVED THE HELP HE WAS ENTITLED TO UNDER THE COURT'S DECISION IN "AKE." LAURIE, WHAT DID THE SUPREME COURT DECIDE? THE MAJORITY FOUND THAT THE TRIAL COURT'S RULING VIOLATED CLEARLY ESTABLISHED FEDERAL LAW UNDER "AKE." THE DEFENDANT WAS, 1--INDIGENT, AND 2--HAD A MENTAL CONDITION THAT WAS SERIOUSLY IN QUESTION. THE EASIEST WAY FOR A LOWER COURT TO COMPLY WITH "AKE" IS TO PROVIDE THE DEFENSE WITH A QUALIFIED EXPERT RETAINED SPECIFICALLY TO HELP THE DEFENSE TEAM. BUT THE SUPREME COURT ACTUALLY HELD OFF ON WHETHER THAT WAS REQUIRED SINCE McWILLIAMS DIDN'T EVEN GET THE BASIC HELP THAT IS REQUIRED BY "AKE." EVAN: YEAH, SO JUST TO ECHO WHAT LAURIE SAID A LITTLE BIT, THE COURT RULED THAT THE MINIMUM REQUIREMENT HERE IS THAT AN INDIGENT CRIMINAL DEFENDANT RAISING THESE KINDS OF ISSUES SHOULD GET A MENTAL HEALTH EXPERT WHO'S AVAILABLE TO THE DEFENSE AND IS INDEPENDENT OF THE PROSECUTION. THIS IS AN EXPERT WHO HAS TO PROVIDE MORE THAN JUST AN EXAMINATION. HE OR SHE HAS TO BE AVAILABLE TO ASSIST IN THE EVALUATION OF EVIDENCE, AND HAS TO BE ABLE TO ASSIST IN THE PREPARATION AND PRESENTATION OF THE DEFENSE. JIM: AND THERE WAS A DISSENT IN THIS CASE, WASN'T THERE? LAURIE: YES, THERE WAS. JUSTICE ALITO WROTE A DISSENT. HE WAS JOINED BY THE CHIEF JUSTICE AND JUSTICES THOMAS AND GORSUCH. AND THEY SAID THAT "AKE" DID NOT CLEARLY ESTABLISH THAT THE DEFENDANT IS ENTITLED TO AN EXPERT WHO IS A MEMBER OF THE DEFENSE TEAM, ONLY THAT HE'S ENTITLED TO SOME TYPE OF EXPERT APPOINTED BY THE COURT, AND A NEUTRAL EXPERT SHOULD BE ENOUGH. THANKS. BETH: WE DO HAVE A QUESTION, EVAN AND LAURIE. IT CONCERNS "DAVILA V. DAVIS," AND IT'S THIS. IT'S A BIT LONG, SO I'M GONNA READ IT. IT'S "WHERE A STATE PRISONER DEFAULTS HIS RECORD-BASED CLAIM "IN STATE COURT BY NOT RAISING IT ON APPEAL, "UNDER THE PROCEDURAL DEFAULT DOCTRINE, CAN 'DAVILA' BE READ "TO MEAN THAT A PRO SE PRISONER CANNOT USE INEFFECTIVE "ASSISTANCE OF APPELLATE COUNSEL AS A CAUSE FOR FAILING TO EXHAUST THE CLAIM OR APPEAL?" EVAN: WELL, I MEAN, UNLESS I'M MISSING SOMETHING IN THAT, I THINK IT DOES MEAN THAT. I THINK-- LAURIE: I THINK IT SOUNDS VERY MUCH LIKE THE CASE - THAT "DAVILA" WAS DECIDING. - YEAH. NOW, YOU KNOW, INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS MIGHT COVER BOTH TRIAL COUNSEL OR AN APPELLATE COUNSEL, SO THERE MAY BE SOMETHING ELSE - GOING ON HERE. - YEAH. BUT THIS SOUNDS LIKE JUST CLAIMING INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL MAY ACTUALLY - FORFEIT THE CLAIM. - I AGREE. BETH: MM-HMM. RACE IS ALWAYS A CHARGED TOPIC WHEN IT COMES BEFORE THE COURT. AND THIS TERM, IT AROSE AGAIN IN THE CONTEXT OF VOTING. WE LOOK AT THAT NEXT. THIS TERM, THE COURT DECIDED TWO CASES DEALING WITH THE ROLE OF RACE IN DRAWING ELECTORAL DISTRICTS. WHETHER RACE CAN BE USED TO DRAW THESE DISTRICTS IS STRAIGHTFORWARD IN CONCEPT BUT IT'S COMPLICATED IN PRACTICE. THAT IS, DRAWING DISTRICTS TO MAXIMIZE SAFE SEATS FOR THE POLITICAL PARTY THAT CONTROLS THE LEGISLATURE, SO-CALLED POLITICAL GERRYMANDERING, HAS NOT BEEN DECLARED UNCONSTITUTIONAL. RACIAL GERRYMANDERING IS UNCONSTITUTIONAL. ERWIN, CAN YOU GIVE US SOME OF THE CONTEXT BEHIND THIS ISSUE THAT MAKES IT SO COMPLICATED, AS WELL AS THE TWO DECISIONS - SO COMPLICATED? - SURE. IN THE EARLY 1990s, IN CASES LIKE "SHAW V. RENO" AND "MILLER V. JOHNSON," THE SUPREME COURT SAID IF THE GOVERNMENT USES RACE AS THE PREDOMINANT FACTOR IN DISTRICTING INCLUDING TO BENEFIT MINORITIES, IT MUST MEET STRICT SCRUTINY. ITS ACTION IS NECESSARY TO ACHIEVE A COMPELLING GOVERNMENT PURPOSE. BUT IN "EASLEY V. CROMARTIE" IN 2001, THE COURT SAID IF RACE IS USED AS A PROXY FOR POLITICAL PARTIES, IT'S THEN PERMISSIBLE. THAT CASE CAME FROM NORTH CAROLINA. AFRICAN-AMERICANS OVERWHELMINGLY VOTE DEMOCRATIC IN NORTH CAROLINA, AND THE COURT SAID THE STATE COULD LOOK AT RACE FOR PURPOSE OF PARTISAN GERRYMANDERING. BUT THAT THEN MEANT FOR THE LAST 15 YEARS, COURTS HAVE BEEN CONFRONTED WITH SEEMINGLY AN UNANSWERABLE QUESTION: IS IT RACE OR IS IT PARTY WHEN INEVITABLY THEY'RE INTERLINKED? BETH: SO, SUZANNA, WAS THAT THE STRUGGLE IN THIS CASE? SUZANNA: IT WAS THE DIRECT QUESTION IN ONE OF THE CASES WE'RE GOING TO DISCUSS AND THE BACKGROUND ISSUE IN THE OTHER. THE BACKGROUND CASE WAS "BETHUNE-HILL V. VIRGINIA BOARD OF ELECTIONS," WHICH WAS ACTUALLY A PRETTY STRAIGHTFORWARD MISAPPLICATION OF SUPREME COURT PRECEDENT. ACCORDING TO THE SUPREME COURT, THE DISTRICT COURT JUST GOT IT WRONG IN THIS CASE. THE VIRGINIA LEGISLATURE HAD CREATED 12 DISTRICTS WITH THE GOAL THAT EACH OF THOSE DISTRICTS WOULD HAVE A BLACK VOTING AGE POPULATION OF AT LEAST 55%. NOW, THE LOWER COURT FOUND THAT RACE DID PREDOMINATE IN THE DRAWING OF ONE ELECTION DISTRICT, BUT THAT IT WAS CONSTITUTIONAL BECAUSE THE LEGISLATURE HAD GOOD REASON TO BELIEVE THAT IT WAS MEETING A COMPELLING INTEREST IN COMPLYING WITH THE VOTING RIGHTS, THE FEDERAL VOTING RIGHTS ACT. AS FOR THE OTHER 11 DISTRICTS, THE DISTRICT COURT HELD THAT RACE DID NOT PREDOMINATE IN DRAWING THE DISTRICTS BECAUSE THE DISTRICTS DID NOT CONFLICT WITH TRADITIONAL NON-RACIAL PRINCIPLES FOR DRAWING DISTRICTS. BETH: SO WHAT DID THE SUPREME COURT DECIDE? SUZANNA: THE SUPREME COURT REVERSED THE DISTRICT COURT AND REMANDED THE CASE BACK. THE COURT HELD THAT THE QUESTION OF WHETHER RACE WAS THE PREDOMINANT CONSIDERATION IN DRAWING DISTRICT LINES DOES NOT DEPEND AT ALL ON WHETHER THOSE LINES DO OR DO NOT CONFLICT WITH TRADITIONAL NON-RACIAL LINE-DRAWING PRINCIPLES. IF RACE IS THE PREDOMINANT PURPOSE IN REDRAWING THE DISTRICT, THE GOVERNMENT HAS TO MEET STRICT SCRUTINY REGARDLESS OF WHETHER THERE'S A CONFLICT BETWEEN THE DISTRICTS THAT WERE DRAWN AND TRADITIONAL PRINCIPLES OF DRAWING DISTRICT LINES. JUSTICE KENNEDY SAID HERE THAT IT WAS CLEAR THAT RACE WAS THE PREDOMINANT PURPOSE IN DRAWING THESE ELECTION LINES. AS SUZANNA POINTED OUT, THE GOAL OF THE LEGISLATURE WAS TO CREATE DISTRICTS WITH A 55% AFRICAN-AMERICAN POPULATION. BUT THE COURT DID NOT DECIDE WHETHER THIS VIOLATED THE "CONSTITUTION." THE COURT REMANDED THE CASE BACK TO THE 3-JUDGE FEDERAL COURT TO SEE WHETHER STRICT SCRUTINY WAS MET. SUZANNA: ALTHOUGH THE COURT DIDN'T MAKE ANY NEW LAW HERE, IT WAS JUST APPLYING THE PRINCIPLES OF "SHAW AND MILLER V. JOHNSON," AS ERWIN POINTED OUT. I THINK IT'S WORTH NOTING, BECAUSE IT DOES POINT OUT THE UNDERLYING COMPLEXITY OF THIS STANDARD, THAT IN THE DISCUSSION, THE COURT WROTE THAT CONFLICT WITH TRADITIONAL REDISTRICTING PRINCIPLES IS GOOD EVIDENCE OF PREDOMINANCE OF RACIAL INTENT. AND, IN FACT, IT MAY BE IMPOSSIBLE TO PROVE PREDOMINANCE WITHOUT A CONFLICT WITH TRADITIONAL REDISTRICTING PRINCIPLES. AND, AS THE COURT SAID, THE COURT ITSELF HAS NEVER FOUND PREDOMINANCE WITHOUT, IN FACT, A CONFLICT WITH TRADITIONAL PRINCIPLES OF REDISTRICTING. OK. LET'S GO TO OUR NEXT DECISION. THE OTHER DECISION, "COOPER V. HARRIS," AS SUZANNA SAID, DEALS DIRECTLY WITH THE QUESTION OF HOW TO DECIDE IF RACE WAS A PREDOMINANT FACTOR IN DRAWING ELECTION DISTRICTS. AND, IF IT WAS, WHETHER THE CHALLENGER'S XIV AMENDMENT EQUAL PROTECTION RIGHTS WERE VIOLATED. HERE, THE NORTH CAROLINA LEGISLATURE REDREW TWO CONGRESSIONAL DISTRICTS, DISTRICTS 1 AND 12. NEITHER DISTRICT HAD A MAJORITY OF MINORITY VOTERS PRIOR TO THE 2010 CENSUS, BUT BOTH DISTRICTS HAD ELECTED MINORITY CANDIDATES. WHEN THE LEGISLATURE REDREW THE DISTRICTS, IT ADDED MANY MORE MINORITY VOTERS INTO THEM MAKING THEM MAJORITY-MINORITY. SUZANNA, HOW DID NORTH CAROLINA DEFEND ITS ACTIONS? IT DEFENDED ON TWO GROUNDS ALTERNATIVELY. FIRST, IT ARGUED THAT EVEN IF RACE WAS THE PREDOMINANT MOTIVE FOR DRAWING THE DISTRICTS, IT WAS NARROWLY TAILORED TO COMPLY WITH THE VOTING RIGHTS ACT, AND THEREFORE, THERE WAS A COMPELLING GOVERNMENT INTEREST MEETING STRICT SCRUTINY. BUT ALTERNATIVELY, NORTH CAROLINA ARGUED THAT RACE WASN'T THE PREDOMINANT CONSIDERATION. THE PREDOMINANT CONSIDERATION WAS POLITICS. THE LEGISLATURE, IT SAID, WAS ENGAGED IN POLITICAL GERRYMANDERING--PACKING THE DISTRICTS WITH DEMOCRATS-- NOT RACIAL GERRYMANDERING-- PACKING THE DISTRICTS WITH AFRICAN-AMERICANS. AND THE DISTRICT COURT REJECTED BOTH OF THOSE ARGUMENTS. SO, ERWIN, WHAT DID THE SUPREME COURT SAY? ERWIN: THE SUPREME COURT HELD THAT THE USE OF RACE IN DRAWING THESE ELECTION DISTRICTS VIOLATED EQUAL PROTECTION. AS THE DISTRICT WON, THE COURT SAID IT WAS UNCONTESTED THAT RACE WAS THE PREDOMINANT PURPOSE. AS SUZANNA POINTED OUT, NORTH CAROLINA TRIED TO ARGUE THAT IT USED RACE TO AVOID VIOLATING THE VOTING RIGHTS ACT. BUT THE COURT SAID IT WOULD ASSUME THAT COMPLIANCE WITH THE VOTING RIGHTS ACT WAS A COMPELLING INTEREST, BUT THAT IT WOULD BE GOOD REASON TO BELIEVE THAT WITHOUT THE USE OF RACE, THERE WOULD BE A VIOLATION OF THE VOTING RIGHTS ACT. AND THE COURT SAID HERE THERE'S NO REASON TO BELIEVE THERE'D BE A VIOLATION OF THE VOTING RIGHTS ACT HAD RACE NOT BEEN USED IN DISTRICTING. I THINK WHAT THE COURT SAID IS EVEN MORE IMPORTANT AS TO THE OTHER DISTRICT, DISTRICT 12. THERE, THE COURT SAID IT HAD TO DEFER TO THE FACT-FINDING OF THE DISTRICT COURT THAT RACE WAS THE PREDOMINANT PURPOSE. THE COURT SAID IT HAD NO REASON TO BELIEVE THAT THE DISTRICT COURT DETERMINATION HERE WAS CLEARLY ERRONEOUS. AND THEN JUSTICE KAGAN SAID IT DOESN'T MATTER WHY RACE IS USED. IF RACE IS THE PREDOMINANT PURPOSE, STRICT SCRUTINY HAS TO BE MET. HER LANGUAGE HERE, I THINK, IS IMPORTANT. IT'S FOUND IN A FOOTNOTE, AND I'D QUOTE IT. SHE SAYS, "THE SORTING OF VOTERS ON THE GROUND OF THEIR "RACE REMAINS SUSPECT EVEN IF RACE IS MEANT TO FUNCTION AS A PROXY FOR OTHER (INCLUDING POLITICAL) CONSIDERATIONS." I THINK THIS SAYS IT NO LONGER MATTERS WHETHER IT'S RACE OR PARTY. WHEN RACE IS THE PREDOMINANT PURPOSE, STRICT SCRUTINY MUST BE MET. SUZANNA: I AGREE IN PART. IT'S CLEARLY THE MOST IMPORTANT PART OF THE DECISION, AND I THINK IT WILL MAKE IT EASIER TO CHALLENGE DISTRICTS WHERE--INVOLVING THE USE OF RACE AS A PROXY FOR POLITICAL GERRYMANDERING. BUT GIVEN THAT RACE AND POLITICS DO TRACK EACH OTHER IN MANY PLACES, I THINK THERE'S STILL SOME QUESTIONS. FOR EXAMPLE, WHAT IF THE LEGISLATURE SAYS FROM THE VERY BEGINNING, RATHER THAN AFTER THE FACT AS IT DID HERE, THAT IT'S ENGAGED IN PARTISAN POLITICAL GERRYMANDERING? IN OTHER WORDS, IT STATES UPFRONT THAT IT'S TRYING TO KEEP AS MANY DEMOCRATS AS POSSIBLE IN AS FEW DISTRICTS AS POSSIBLE. NOW THAT'S STILL LIKELY TO HAVE THE EFFECT OF PACKING AFRICAN-AMERICANS INTO A FEW DISTRICTS. BUT AT LEAST, UNDER THIS DECISION, IT SEEMS TO BE CONSTITUTIONAL UNLESS THE CHALLENGERS CAN SHOW, CAN PROVE THAT IT WAS RACE, NOT POLITICS THAT AFFECTED THE DRAWING OF THE DISTRICTS. AND, IN FACT, AFTER THIS DISTRICTING PLAN WAS REJECTED, NORTH CAROLINA PASSED A NEW ONE IN WHICH THE LEGISLATURE SAID EXPLICITLY THIS IS POLITICAL GERRYMANDERING, NOT RACIAL GERRYMANDERING, AND THE DISTRICT COURT HELD IT TO BE A POLITICAL QUESTION. BETH: OK, SO WHAT DO YOU THINK THE BOTTOM LINE IS GONNA BE OF THESE TWO DECISIONS FOR THE LOWER COURTS WHO ARE GONNA HAVE TO APPLY THEM? ERWIN: FIRST, IF RACE IS THE PREDOMINANT FACTOR IN DRAWING ELECTION DISTRICTS, THE GOVERNMENT MUST MEET STRICT SCRUTINY. SECOND, THE COURT CONTINUES TO ASSUME THAT COMPLYING WITH THE VOTING RIGHTS ACT IS A COMPELLING INTEREST THAT NEEDS STRICT SCRUTINY. BUT THE GOVERNMENT HAS TO HAVE A GOOD REASON TO BELIEVE THAT UNLESS IT CONSIDERED RACE, WE VIOLATED THE VOTING RIGHTS ACT. AND THIRD, NO LONGER IS THERE TO BE AN INQUIRY AS TO WHETHER IT'S ABOUT RACE OR PARTY. WHEN RACE IS THE PREDOMINANT PURPOSE, STRICT SCRUTINY IS THE TEST. SUZANNA: I THINK THE LAST ONE IS A LITTLE MORE COMPLICATED, AS I SUGGESTED, BUT YOU'RE ABSOLUTELY RIGHT. THOSE ARE THE TAKEAWAY POINTS. BETH: OK. THANK YOU. OUR NEXT PANEL IS GOING TO TAKE A LOOK AT SOME PATENT LAW DECISIONS. AND AFTER THAT, WE'RE GOING TO TAKE A 5-MINUTE BREAK BEFORE TACKLING THE SECOND HALF OF OUR PROGRAM. THE SUPREME COURT ISSUED A RECORD 6 PATENT LAW OPINIONS THIS TERM. SOME OF THE DECISIONS MADE SIGNIFICANT CHANGES IN LONGSTANDING PRACTICES, IN PARTICULAR WITH RESPECT TO VENUE. WE WANT TO TELL YOU ABOUT 3 OF THEM. THE FIRST OF THESE IS "TC HEARTLAND V. KRAFT FOODS." VENUE FOR PATENT INFRINGEMENT CASES IS GOVERNED BY 28 U.S.C. SECTION 1400(b). THAT STATUTE STATES THAT PATENT INFRINGEMENT SUITS CAN BE BROUGHT IN THE DISTRICT WHERE THE DEFENDANT RESIDES OR WHERE THE DEFENDANT HAS COMMITTED ACTS OF INFRINGEMENT AND HAS A REGULAR AND ESTABLISHED PLACE OF BUSINESS. IN 1957, THE SUPREME COURT HELD IN "FOURCO GLASS" CASE THAT FOR PURPOSES OF PATENT INFRINGEMENT, A DOMESTIC CORPORATION RESIDES ONLY IN THE STATE WHERE IT IS INCORPORATED. MORE THAN 25 YEARS AGO, THE FEDERAL CIRCUIT HELD THAT "FOURCO GLASS" HAD BEEN MODIFIED BY AMENDMENTS MADE TO THE GENERAL VENUE STATUTE. THOSE AMENDMENTS PROVIDED THAT A DEFENDANT RESIDES IN ANY DISTRICT WHERE IT'S SUBJECT TO PERSONAL JURISDICTION. IN "TC HEARTLAND," THE COURT THIS TERM REVERSED AN EARLIER FEDERAL CIRCUIT TO THAT EFFECT AND HELD THAT "FOURCO GLASS" REMAINED GOOD LAW. THE HOLDING APPLIES ONLY TO DOMESTIC CORPORATIONS, THOUGH FOREIGN FIRMS ARE SUBJECT TO VENUE IN ANY JUDICIAL DISTRICT WHERE PERSONAL JURISDICTION IS FOUND. BUT ANOTHER TWIST IS THAT SECTION 1400(b) HAS A SECOND CLAUSE THAT WAS NOT AT ISSUE IN "TC HEARTLAND" THAT PROVIDES FOR VENUE WHERE A DEFENDANT HAS A REGULAR AND ESTABLISHED PLACE OF BUSINESS AND HAS COMMITTED ACTS OF INFRINGEMENT. THIS CLAUSE HAD BECOME STALE UNDER FEDERAL CIRCUIT DECISIONS OVER THE YEARS, BUT IT MAY SOON BE THE MOST LITIGATED STATUTORY LANGUAGE CONCERNING VENUE, AS PARTIES TO THESE SUITS TRY TO MAINTAIN CASES IN THEIR FAVORITE COURTS. OUR SECOND DECISION INVOLVED THE COURT IN THE SO-CALLED "SMARTPHONE PATENT WARS." A LITTLE BACKGROUND FIRST. DESIGN PATENTS ARE SUBJECT TO SPECIAL DAMAGES STATUTE UNDER WHICH AN INFRINGER IS LIABLE FOR HIS TOTAL PROFIT WITH RESPECT TO AN ARTICLE OF MANUFACTURE TO WHICH THE DESIGN IS APPLIED. THIS IS A DISGORGEMENT REMEDY THAT IS SUPPOSED TO STRIP AWAY THE INFRINGER'S ILL-GOTTEN GAINS. BETH: WELL, APPLE OBTAINED SEVERAL DESIGN PATENTS ON THE iPHONE, ONE OF WHICH COVERED A RECTANGULAR FRONT FACE WITH ROUNDED CORNERS. SAMSUNG WAS FOUND TO INFRINGE THAT PATENT AND WAS HELD LIABLE FOR $399 MILLION-- IN OTHER WORDS, ITS ENTIRE PROFIT FROM THE SALES OF ITS INFRINGING SMARTPHONE. IN REACHING THAT DECISION, THE LOWER COURTS REJECTED SAMSUNG'S ARGUMENT THAT THE PROFITS AWARDED SHOULD HAVE BEEN LIMITED TO THE INFRINGING ARTICLE OF MANUFACTURE, FOR EXAMPLE, THE SCREEN OR THE CASE OF THE iPHONE. THE LOWER COURTS UPHELD A TRADITIONAL INTERPRETATION OF 35 U.S.C. SECTION 289 THAT THE ENTIRE INFRINGING SAMSUNG PHONE WAS THE ONLY PERMISSIBLE ARTICLE OF MANUFACTURE BECAUSE THE CONSUMERS CANNOT BUY THE SMARTPHONE IN INDIVIDUAL COMPONENTS. JIM: BUT IN "SAMSUNG V. APPLE," THE SUPREME COURT REVERSED THAT DECISION AND HELD THAT THE TERM ARTICLE OF MANUFACTURE IS BROAD ENOUGH TO ENCOMPASS BOTH THE PRODUCT SOLD TO A CONSUMER AS WELL AS A COMPONENT OF THAT PRODUCT. HOWEVER, THE COURT DIDN'T EXPLAIN EITHER HOW A JUDGE OR JURY MIGHT GO ABOUT DECIDING WHETHER PROFITS APPLY TO THE PRODUCT AS A WHOLE, OR INSTEAD, TO AN INDIVIDUAL COMPONENT, OR WHETHER IN THIS CASE THE PROFIT SHOULD BE APPLIED TO THE ENTIRE SAMSUNG SMARTPHONE OR ONLY TO INDIVIDUAL COMPONENTS. THE COURT SAID THE PROBLEM WAS INADEQUATE BRIEFING AND THEY REMANDED THE CASE. OUR THIRD AND FINAL DECISION, "SANDOZ V. AMGEN," INVOLVED A CHANGE IN WHAT HAS BECOME TO BE KNOWN INFORMALLY AS THE PATENT DANCE. THE COURT WAS ASKED TO CONSIDER NEW LEGISLATION DEALING WITH A NEW CLASS OF MEDICATIONS CALLED BIOLOGICS. CONGRESS WAS CONCERNED THAT LOW-COST SUBSTITUTES FOR BRAND-NAME BIOLOGICS WERE NOT BEING INTRODUCED WHEN THE PATENTS ON THE ORIGINAL PHARMACEUTICALS EXPIRED. SO IT ENACTED THE BIOLOGICS PRICE COMPETITION AND INNOVATIONS ACT TO BALANCE THE NEED TO PROMOTE NEW DRUGS AND ALSO ENCOURAGE LOW-COST BIOSIMILAR MEDICINES. ONE OF THE FEATURES OF THE NEW LAW IS AN ELABORATE SERIES OF INTERACTIONS BETWEEN A BRAND-NAME BIOLOGICS MANUFACTURER AND A WOULD-BE BIOSIMILAR COMPETITOR. THE STATUTE CALLS FOR THE TWO COMPANIES TO SHARE INFORMATION ABOUT THE BIOSIMILAR PRODUCT AND ANY PATENTS THAT MIGHT COVER THE PRODUCT. THIS EXCHANGE IS THE PATENT DANCE AND WAS EXTENDED-- IT WAS INTENDED TO ALLOW THE TWO ENTITIES TO ASSESS THE PATENT LANDSCAPE BEFORE THE FDA APPROVES A BIOSIMILAR. JIM: THERE WERE TWO ISSUES IN "SANDOZ V. AMGEN." THE FIRST WAS WHETHER SANDOZ FILED AN FDA APPLICATION TO MARKET A BIOSIMILAR TO AMGEN'S BIOLOGIC DRUG, AMGEN WAS ENTITLED TO OBTAIN SANDOZ'S APPLICATION. THE LOWER COURT HELD THAT AMGEN COULD NOT GET A FEDERAL INJUNCTION TO FORCE SANDOZ TO TURN OVER THE APPLICATION, BUT THE SUPREME COURT LEFT OPEN THE QUESTION WHETHER AN INJUNCTION WAS POSSIBLE UNDER STATE LAW. NOW, THE SECOND ISSUE WAS WHETHER SANDOZ PROVIDED AMGEN WITH PROPER NOTICE OF ITS INTENT TO MARKET A BIOSIMILAR. THE BIOLOGICS ACT REQUIRES COMPANIES SEEKING TO MARKET A BIOSIMILAR TO PROVIDE NOTICE TO THE FIRST COMPANY "NOT LATER "THAN 180 DAYS BEFORE THE DATE OF THE FIRST COMMERCIAL MARKETING OF THE [BIOSIMILAR] PRODUCT THAT WAS LICENSED [BY THE FDA.]" THE SUPREME COURT REVERSED THE FEDERAL CIRCUIT ON THIS ISSUE AND HELD THAT "THE APPLICANT MAY PROVIDE NOTICE EITHER BEFORE OR AFTER RECEIVING FDA APPROVAL." WE'RE GOING TO TAKE A 5-MINUTE BREAK NOW, AND THEN WE'LL BE BACK WITH A LOOK AT SOME BANKRUPTCY DECISIONS, ANSWER ANY QUESTIONS YOU HAVE, AND THE SECOND HALF OF OUR PROGRAM.

Contents

Background

William L. Marcy had been elected in 1831 to this seat. In November 1832, Marcy was elected Governor, and upon taking office resigned his Senate seat on January 1, 1833.

At the State election in November 1832, a very large Jacksonian-Democratic majority was elected to the Assembly, and six of the eight State Senators elected were Jacksonian Democrats. The 56th New York State Legislature met from January 1 to April 30, 1833, at Albany. The party strength in the Assembly as shown by the election for Speaker was: 99 for Jacksonian Democrat Charles L. Livingston and 22 for Anti-Mason John C. Spencer.

Candidates

New York State Comptroller Silas Wright, Jr., was the candidate of the Jacksonian Democrats.

Result

Silas Wright, Jr., was the choice of both the Assembly and the Senate, and was declared elected.

1833 United States Senate special election result
Office Candidate Party Senate
(32 members)
Assembly
(128 members)
U.S. Senator Silas Wright, Jr. Jacksonian 24 99
John C. Spencer Anti-Mason 3 8
James Burt 1 2
Gerrit Smith 1 1
James Kent 4
Albert Gallatin 3
Gideon Hawley 3
John Birdsall Anti-Mason 1
Myron Holley 1
William Thompson 1
Albert H. Tracy Anti-Mason 1
Samuel A. Foot 1

Aftermath

Wright took his seat on January 14, 1833, was re-elected twice (in 1837 and 1843) and remained in office until November 1844 when he resigned after his election as Governor of New York.

Comptroller Wright's election to the U.S. Senate produced a shuffle in the State's administration: Secretary of State Azariah C. Flagg succeeded Wright as Comptroller; Adjutant General John Adams Dix succeeded Flagg as Secretary of State; and Levi Hubbell was appointed Adjutant General of the State Militia.

Sources

This page was last edited on 8 August 2017, at 14:19
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