A Seat at the Sitting - October 2025 - FedSoc Forums

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Speaker 1 (00:02):
Welcome to fedsock Forums, a podcast of the Federal Society's
practice groups. I'm Nate Kasmeric, vice President and Director of Practice.

Speaker 2 (00:08):
Groups at the Federal Society.

Speaker 1 (00:10):
For exclusive access to live recordings of FEDSOC Forum programs,
become a Federal Society member today at fedsock dot org.

Speaker 2 (00:18):
Good afternoon, Welcome to seat at the sitting for October
twenty twenty five. I'm ny Chasmeric, Vice President for Practice
Groups and Networks. Playoff Baseball is here. The cooler fallweather
has arrived, and we are once more looking forward to
the Supreme Court reconvening for oral arguments next week. As

(00:39):
you've come to expect, we've gathered an excellent panel to
preview this month's oral arguments before the Court. Our plan
is to cover the cases and to take audience Q
and A in ninety minutes or less. The usual disclaimer applies.
The Federal Society doesn't take any positions, and all of
yous expressed here belong to our speakers. I'm delighted to

(01:01):
welcome a great moderator today in Ariel Azaran.

Speaker 3 (01:05):
Thank you for joining us. Ariel, how are you today?

Speaker 4 (01:08):
I'm doing wonderful. Thank you for having.

Speaker 2 (01:10):
Me, Well, we're delighted to have you. We're glad to
get carve out time to guide our conversation this afternoon.
Arielle is Litigation Council at the National Jewish Advocacy Center,
which combats anti Semitism, and is of Counsul with Holtzman
Vogel and focuses their practice there on commercial litigation, appellate law,

(01:30):
and constitution constitutional law matters. She clerked for Judge Stephen
Manashi on the US Court of Appeals for the Second Circuit.
She is also a co founder of the Center for
Middle East and International Law with the Antoninscalia Law School.
Full bios for our moderator and all of our panelists
are available for your review on our website. Also, we've

(01:54):
added a feature to the Zoom platform. If you click
the resources button, you can review each of our panelists
bios there. Towards the end of the program today, we'll
go to audience Q and A. So please start thinking
about the very difficult questions you'd like to stump our
experts on as you listen to the panel discussion. For
those of you joining us via Zoom, questions can be

(02:16):
submitted in advance via the Q and a function at
the bottom of your screen. With that the table of sets. Maryelle,
thanks again for being with us.

Speaker 3 (02:26):
The floor is.

Speaker 4 (02:27):
Yours, thanks for having me. So I'm going to do
just a brief bio as the cases are presented. So
we're going to start with Jana Bosch. She is the
Deputy Solicitor General of Ohio and before joining that office,
Jana cork for Judge John b.

Speaker 5 (02:42):
Now Bandian of the United States.

Speaker 4 (02:44):
Court Appeals for the Sixth Circuit and for Judge Allison
Jones Rushing of the United States Court Appeals for the
Fourth Circuit. So, without further ado, Jana bosh is going
to discuss vill Real vi. Texas and'll give her the floor.
Thank you, Jana, thanks yeah.

Speaker 6 (03:00):
So Villaraye al Versus Texas is getting argued in just
three days, so we don't have very long before we
get to watch the advocates advocate for themselves in the meantime.
This is a six Amendment case, so right to counsel
for defendants at trial.

Speaker 4 (03:18):
And just sort of set the stage for this.

Speaker 7 (03:20):
You have.

Speaker 4 (03:23):
Under the sixth Amendment, you.

Speaker 6 (03:24):
Have a right to consult with your council at least
as it's interpreted right now. And there's two sort of
rough guide posts that the Supreme Court has already in
this area. One is this case called Geeters or Gators,
not really sure, and it dealt with an overnight, complete
bar on discussion between the defendant and his council because

(03:49):
they were in the middle of the defendants testimony, and
so the court said, in order to deal with the
potential for some sort of taint in the testimony, we're
just going to have a complete bar on the defense
talking with this council for the entire overnight recess until
we come back. And the Supreme Court said, you can't
do that. They said that that definitely crossed the line

(04:10):
to violating the right of council for the defendant because
and mainly its main point was that there are all
kinds of things that defendants would want to discuss with
their council during that overnight recess, many of which don't
really have much to do with the ongoing testimony, and
so to prevent them from talking at all prevented them

(04:30):
from talking about a lot of different strategy issues, practical
concerns for how the trial would be run, and that's
a problem. The other guidepost goes the other way, and
it's the case called Perry. And in that case, there
was a fifteen minute recess during the testimony and the
court again had a complete bar on discussions between council

(04:55):
defendant and his council, and the Supreme Court said that
was okay. One of its comments and saying that was okay,
was that there's really not a lot that you would
expect someone to discuss with their council during a fifteen
minute recess other than their ongoing testimony, and so on
that assumption, it says, there's really nothing wrong with preventing

(05:17):
a defendant from discussing his testimony with his council or
that fifteen minute break.

Speaker 4 (05:24):
So that brings us.

Speaker 6 (05:25):
To the Villa Reale case, where the court called a
overnight recess and it again had a ban on a
qualified ban, this time on discussions between defense and his council,
and the qualified ban with something along the lines of
don't discuss the ongoing testimony, but you can talk about

(05:47):
anything else. And at the time the council more or
less basically said, the understood the instruction and we're willing
to go.

Speaker 5 (05:55):
Along with it.

Speaker 6 (05:57):
And when challenged on appeal, the texts. Court's approved that
qualified conferral ban. They said, that's okay, because we're looking
at the truth seeking function of the court. We're looking
at the ability to have this sort of this qualified limitation,
not a total limitation, even in the context of an
overnight recess, and so they approved that.

Speaker 3 (06:19):
So then the.

Speaker 6 (06:21):
Question is, is the Supreme Court going to approve the
sort of qualified conferral ban in the vein of Perry
where you're looking at trying to limit essentially taint of
the defendant's testimony, or would they see this as being
closer to geters just because essentially it has that overnight
aspect to it. Villareal argues that the overnight ban on

(06:45):
even though it's qualified to talking about testimony, and that's
the only part that's that they're not allowed to talk
about that, that really isn't a distinction that makes any difference,
because so many different pieces of what the defense would
want to talk about with his council is going to
be related to the testimony somehow or another, whether it's
about something that he said makes the defense counsel want

(07:06):
to call a certain other witness or do other certain
research that those relationships between what the defendant has been
talking about on the stand, and those strategy calls that
they want to discuss during the ornate recess, it's going
to be impossible to sort of extricate the testimony discussion
from the strategy discussion. And even if you could, in

(07:30):
theory pull those two apart, the fact that you have
the specter of punishment for discussing the wrong things means
that you're going to essentially chill counsels discussion with his clients.
And so even things that if you looked at it
technically would be allowed, he still might not discuss those
things because he'd be concerned about that potential for punishment.

(07:52):
And so the conclusion there is that a qualified ban
like this is tantamount demand and consultation altogether, that you
really can't say just because it's qualified means that it's allowed.
He also points to some potential practical concerns in enforcing
a band like this, because how would you know what
someone had talked about with their council unless you ask

(08:16):
them what they talked about with their counsel, which has
obvious problems there for confidentiality. Texas comes back and says
that qualified conferral orders are constitutional that they're actually fine
in light of the precedent we discussed, and they pointed
to the Spots and Geters in Perry, where really the
driving difference wasn't necessarily the length of the time of

(08:38):
the recess. The difference was what the court assumed they
would be talking about. In Geters, they assumed that everyone
would be discussing, would have these strategy matters to discuss,
and they wouldn't need necessarily be talking about testimony. And
in Perry, they assumed that they wouldn't be talking about
strategy and the only thing they would be discussing would
be testimony. So if you really take the heart of

(08:59):
those cases apply it here, the qualified limitation on discussion
is actually exactly what that sort of reading between the
lines and Meters and Perry would point to. They use
this term testimonial management to describe what it is you
don't want counsel to be doing, which is essentially telling
their client how they should be answering questions on the

(09:20):
stand that really undermines the truth finding function of the courts.
And they also give a nod to the original meaning
of the sixth Amendment and discussing how that really has
expanded over time, and originally speaking, this isn't something that
would be considered to fall under six men of protection.
Ohio filed and a Meekus brief along with some other states,
really highlighting how states have different methods that they come

(09:43):
up with, some of them similar, some different to protect
that truth seeking function in courts, which is essentially the
core function of the courts is to figure out what
the truth is. And so the courts all the time
will limit the timing of conferral with counsel. So it's
not actually unheard of for defendants to request a immediate

(10:07):
pause and the testimony when they get a question that
they don't know how to answer and ask to talk
to their attorney about how to answer it. And that's
clearly a problem for maintaining the integrity of the trial,
and so state courts frequently don't allow that. In a
similar vein courts have limited the topic of conferral between
the council and the client for example like this one

(10:29):
saying you can't discuss the testimony, but also limitations like
not being able to discuss classified information that only counsel
knows about they can't tell their client. There's another case
came out of a federal court about not sharing information
about a witness that's going to appear the next day
out of safety concerns for the witness who had been
the victim of some intimidation. And so when you look
at the ability of state courts to put these reasonable

(10:51):
limits on discussions between counsel and their clients, all of
this goes to that truth seeking function of the courts.
If you do have this overwriting, overwhelming sixth Amendment right
to confer essentially without limits, then that's going to make
those sorts of truth seeking protections impossible. And finally, we
made a note in that brief that this really does
benefit everyone, because if courts have to use scheduling of

(11:13):
trials to avoid the kinds of recesses that will permit
some witness coaching, then they probably will do that, and
it will lead to some long nights of testimony when
everybody would have been better off with a qualified conferral
prohibition and picking it up the next morning. The last
thing I'll talk about is the US also put in
an Amiekus brief.

Speaker 4 (11:34):
They made some points about how.

Speaker 6 (11:36):
The defendant is in a special position as to the
trial as a defendant, but they're not in a special
position necessarily when they come as a witness, and so
the kinds of rules that apply to witnesses in order
to protect those true seeking functions we've talked about are
by and large going to apply to defendants in a

(11:56):
very similar way as the other witnesses for the exact
reason that they are are truth preserving rules. The US
also pointed out some historic limits on the right to
testify and the right to confer pointed out again, like
I mentioned, how much the sixth min right has expanded,
and so to the extent that we're looking back at
that original meaning to decide how much further to expand it,

(12:17):
that would really point against continue to expand that. And
finally they point out that it, at least so far,
the Supreme Court has pretty much assumed that a qualified
conferral ban would be workable, because in Pery and footnote aiight,
it actually suggests that as a resolution for those smaller
the fifteen minute recesses, and so there's not really any

(12:39):
reason to think that the Supreme Court would not accept
that as a.

Speaker 5 (12:42):
Solution for also those longer recesses.

Speaker 6 (12:45):
Of putting just a qualified ban on talking about the
ongoing testimony. So that's what It gives you a sketch
of what's happening. The big question on everybody's mind is
would the Supreme Court be inclined to over rule geaters
or would it be more inclined to sort of take
those two guideposts and explain why this one sort of

(13:06):
falls in the middle and in a way similar to
what the litigants have done, sort of trying to just
take those two as a given and then cut a
middle path and say, well, this favors one.

Speaker 8 (13:14):
Side or the other.

Speaker 5 (13:15):
That's it.

Speaker 4 (13:17):
Thank you, Jana. I was going to I was just
prompting the audience for questions. If they had any questions
about your presentation, they can put them in the Q
and A box. I'm happy to review them and people
can fire away, and if not, I will move on
to the next presentation. Thank you Jana for that. Our
next presenter is Michael Morley. He is the assistant professor.

(13:39):
He's an assistant professor at Florida State University College of Law,
where he teaches fed Courts, Remedies, and election law. Prior
to his experience in academia, he served in government as
special Assistant to the General Counsel of the Army at
the Pentagon, as well as a law cirk for Judge
Gerald to show flat of the US Court of Appeals
for the Eleventh Circuit. So Professor Morley is going to

(14:00):
first be discussing Burke v. Choi without further ado, Professor Marley, great.

Speaker 3 (14:08):
Thank you very much.

Speaker 9 (14:09):
So this case might be something of a blast to
the past for most of you in that it's an
eerie case. So hopefully pleasant memories of civil procedure are
coming back into your heads here. So in this case,
the plaintiff, Harold Burke, had fallen out of bed and
had injured his ankle and foot. He was taken to

(14:31):
a medical center where the defendant, doctor Wilson Choi, among
other things, suggested that he wear a special type of
boot in order to in order to alleviate the injuries,
and the plaintiff alleged that the staff had a lot
of trouble putting the boot on the plaintiff and we're
trying to shove it on and weren't able to get
it on right and allegedly made his condition much worse.

(14:54):
He was subsequently transferred to another facility that didn't x
ray him and ultimate it wasn't until later that when
he was x rayed, they discovered that he had three
different bones in his ankle that were pointing in three
different directions and he required surgery. It took him several
months to recover from the surgery additional months of therapy

(15:15):
to be able to walk again. He requires a cane
to walk. And so the plaintiff, mister Burke, sued in
a federal court under diversity jurisdiction for medical malpractice. So
Delaware law, the law of the forum state, requires plaintiffs
to file what's called an affidavit of merit if they

(15:38):
wish to bring medical malpractice claims. Many states have these
types of laws. Delaware law specifies that the affidavit must
come from a qualified expert witness and a test that
there are quote reasonable grounds to believe that the defendants
committed medical malpractice. And the statute specifies that if somebody

(15:59):
file a medical malpractice complaint that is not accompanied by
one of these affidavits, the case has to be the
case has to be dismissed. So the question is whether
this law applies in federal court when in diversity. So
the plaintiff had filed this lawsuit initially pro say and
had submitted his medical affidavits to the court, but not

(16:23):
not an affidavit of merriage, and so after proceedings before
the District court, the District Court held that Delaware statute
did apply in federal court or was applicable even in
federal diversity cases, and pursue into that statute. Since the
plaintiff had not submitted the affidavit of merit which the
statute required, dismissed the case, and the Third Circuit affirmed

(16:46):
that dismissal. The Third Circuit's analysis relied on two primary steps. First,
the court concluded the Third Circuit concluded that Delaware's affidavit
of me marriat requirement did not conflict with any federal
rules of civil procedure, and its analysis focused really on

(17:07):
four main rules, rules eight, nine, eleven, and twelve. But
rules eight and nine govern pleating standards in federal court.

Speaker 2 (17:15):
Right.

Speaker 9 (17:15):
Rule eight is the general pleading standard. Right twombly Ickball,
of course, explained what what rule eight requires. Rule nine
provides heightened pleading standards for certain type for allegations of
certain sorts, most notably fraud and The Court said the
neither Rule eight nor Rule nine had anything to do

(17:38):
with the affidavit of merit requirement. These rules governed the
contents of pleadings. The affidavit of merit requirement had nothing
to do with pleadings. It didn't require, according to the
Third Circuit, it didn't require that the that the plaintiff
add certain details in the complaint didn't purport to impose
any sort of heightened pleading standard on the on the complaint. Rather,

(18:00):
it required the plaintiff at the outset of the case
to provide particular evidence to provide this affidavit merit, and
so Rules eight and nine were simply inapplicable to that issue.
They did not purport to implicitly bar states from adopting
such requirement or conflict with any such requirement. The Court
went on to observe Rule eleven obviously governs the conduct

(18:23):
of lawyers. It imposes restrictions to prevent lawyers from submitting
frivolous filings. Again, the Third Circuit said, because this rule
governs lawyer conduct, it has nothing to do or attorney conduct.
Has nothing to do with whether complaints should be dismissed,
has nothing to do with whether states can require plaintiffs
to submit affidavits of merit. So it found no conflict

(18:45):
with Rule eleven, and of course Rule twelve sets forth
grounds for dismissal court. The Third Circuit went on to
say that nothing in Rule twelve purports to prevent federal
courts from being able to apply state laws that required
dismissal for various reasons, including failure to failure to file

(19:05):
an affidavit of merit. So, because in the Third Circuit's view,
this issue was not governed by a rule of civil procedure,
it went on to the second step of its analysis,
which is to perform the eerie choice right, so to
determine whether, under under the eerie doctrine, state law governs
this issue or federal law governs this issue. Right, you might,

(19:27):
you might, You might broadly remember right when federal courts
or are sitting in diversity. Federal law governs procedural issues,
State law governs substantive issues, and so in order to
in order to determine whether or not this was a
substantive or a procedural requirement, the Third Circuit applied what

(19:48):
it referred to as a modified outcome determinative test. It
went on to say, whether you apply this rule, whether
you apply this requirement could have a dramatic impact on
the case's outcome, right as in this case itself a
plaintiff with that if you apply this rule, a plaintiff
who doesn't have the affidavit will see this case dismissed.
Whereas if you don't apply this rule, a plaintiff who

(20:09):
lacks the affidavit can nevertheless proceede can nevertheless keep their
case alive. And so precisely because applying this rule could
have such a major impact on the outcome of a
case of a case, the Third Circuit said that under
the under the Supreme Court standards that weighed heavily in
favor of it being deemed a substantive rule of law

(20:30):
rather than just a procedural requirement, and therefore state law governed,
and so the and so the the the Delaware Statute
is applicable in this case. So the main issue before
the before the Supreme Court is this eerie question. And
my sense is that most of the most of the
focus of the case is really going to be on

(20:50):
that first step of the analysis, that whether whether Rule
eight and in particular is construed very broadly as laying
out requirements that once satisfied, once you have made a
shortened plane statement of your allegations, then you are entitled
to proceed in federal court. If the Supreme Court gives

(21:11):
the rule it gives Rule eight that broad of an interpretation,
then it would conflict with state laws that purport to
require you to provide substantive evidence or to do something
other than making a shortened plane statement of your of
your allegations. On the other hand, if the if the
Court adopts a narrower interpretation of Rule ay along the

(21:33):
lines of what the Third Circuit did, if it doesn't
find if it doesn't find a conflict, it is very
unlikely to do so. In my view under any of
the of the other rules, Rule eight seems to be
the most the most likely basis where the court would
find a direct conflict, and so I think most of
the most of the case is going to hinge on
whether Rule eight guarantees plaintiffs who can overcome twombly nick

(21:56):
balls pleading requirements entry into court, or instead states are
allowed to add on additional requirements like the affidavit of
the merit as well. I'll conclude by by pointing out
that the Third Circuit position is definitely the minority position,
at least based on the petition for Ceracerrari, six circuits

(22:19):
had held that affidavitive merit laws or their equivalents don't
apply in federal diversity cases. Only two circuits, including the
Third Circuit, had held that they that they do apply.

Speaker 4 (22:34):
Great, thank you, Professor Morley. We do have a few questions.
If you do have them, you can continue to type them,
but I'm going to give you the first one. This
person asked, the issue appears to be a matter of
evidentiary submission, similar to Rule fifty six practice. So why
is it not just procedural?

Speaker 9 (22:52):
So the Supreme Court, I should say, the Third Circuit,
let me step back for a minute.

Speaker 7 (23:00):
If there is.

Speaker 9 (23:01):
A rule of civil procedure that governed, that is deemed
to govern the issue, and as long as that rule
is deemed valid under the rules enabling Act and Hannah,
the plumer tells us that any rule that's even arguably
procedural is valid, then the federal rules of sol procedure
would would govern the matter, and the statute would be
thrown out of court. Only if there's not a conflict

(23:25):
between the federal rule and the state law. Do you
then actually get to a traditional eerie analysis where you
apply the twin aims of Erie, and the terms substantive
and procedural in that context actually means something very different
than they do when you're using the term substance and
procedure under the Rules Enabling Act for purposes of determining

(23:46):
whether the whether the RIA is valid by the excuse me,
whether or a federal or soil procedure is valid under
the RIA. By the time you get to that eerie analysis,
the court applies what it calls the twin aims of Erie,
So it asks, will applying different laws in federal and
state court facilitate forum shopping, but it gives plaintiffs an

(24:07):
incentive to engage in forum shopping. If so, we're going
to we're going to tend to regard those types of
issues as substantive where state law would govern. Would we
think it's unfair to submit different litigants within the same
state to different rules of law? Does this offense senses
of justice depending on whether they happen to be in
federal or state court? If so, that tends towards finding

(24:31):
the rule that issue to be substantive, and so the
answer to your question is whether something is substantive or
procedural differs dramatically depending on whether you're looking at the
Hannethy Plumer step one analysis or whether you're doing your
unguided eerie choice at step two.

Speaker 4 (24:48):
Thank you. One other question for you. One listener mentions
undue process and explains the injured has to work at
being injured. Question mark, is that some thing that you
feel you can go right hand? You answer? I wasn't
sure unless the person wants to type and clarify it.

Speaker 3 (25:07):
But sure.

Speaker 9 (25:08):
It's it's not so much that they need to work
at being injured under the state statute, as they need
to find an expert to say that the injury that
they have suffered that at least it's reasonable to believe
or the exact language are there are reasonable grounds to
believe that the injury they suffered was the result of
medical malpractice. So it's not so much that they need

(25:31):
to work at being injured as they're in order to
get through the courthouse door. This state law requires you
to have a qualified expert to say, yes, there's at
least reasonable grounds to think medical malpractice occurred here that
they're trying to prevent. It's a it's a tort reform statute.
They're trying to prevent plaintiffs from jumping the gun and
just assuming that their injuries, the harm that they're suffering

(25:54):
is there is the result of medical malpractice.

Speaker 4 (25:57):
Okay, thank you, Professor Morley. That's that concludes our questions
for the presentation on that case, but we will return
to you shortly. Our next presenter is Amanda Dixon. She
has counseled at the Beckett Fund for Religious Liberty, and
prior to coming to Beckett, she served as a law
clerk to Honorable Alison Jones Rushing of the Fourth Circuit

(26:19):
and Honorable James Dever, the Third of the U. S.
District Court for the Eastern District of North Carolina. And
Amanda will be talking about Chiles v. Salazar with us today.
So without further ado, Amanda, you have the floor.

Speaker 5 (26:33):
Thank you, and thank you for having me.

Speaker 8 (26:35):
For full disclosure, I was able to get to work
on an amicus brief in this case on behalf of
the Becket Fund, and my colleagues at Beckett are preparing
to argue a case raising a similar challenge to a
similar Michigan law later this month at the sixth Circuit.

Speaker 5 (26:50):
So Charles v.

Speaker 8 (26:51):
Salavar is getting argued on October second, I'm sorry October seventh.
And this case arises because Kaylee Childs, who's a licensed
counselor in Colorado.

Speaker 5 (27:05):
And provides pure talk therapy, is a Christian who.

Speaker 8 (27:08):
Also, when her clients seek it out, provides faith informed counseling,
and many of her clients seek her out for that purpose.
Her counseling, as I've said, is pure talk therapy, and
it's also patient directed.

Speaker 5 (27:22):
She follows the patient's set goals.

Speaker 8 (27:26):
And she contends that her counseling, the counselor of the
counseling that she would like to provide, is banned by
Colorado's law banning conversion.

Speaker 5 (27:35):
Therapy for minors.

Speaker 8 (27:37):
Colorado defines conversion therapy, and this is kind of an
important debate on in the case of the scope of
what Colorado's law covers, But it defines conversion therapy as
any practice or treatment by a licensed counselor that attempts
to or purports to change an individual's sexual orientation or
gender identity, including efforts to change behaviors for gender express

(28:00):
or to eliminate or reduce sexual romantic attraction or feelings
toward individuals of the same sex. Now, this has a
carve out, a couple of carve outs. One is that
it defines conversion therapy to not include acceptance, support or
understanding of certain practices such as coping and social support
for identity exploration and development. And it also defines out

(28:23):
of conversion therapy assistance to a person undergoing gender transition.
So missus Childs would like to provide counseling to minors
who struggle with sexual orientation and gender identity and who
seek to live in alignment with their faith, including becoming
comfortable with their biological sex. She contends that the Colorado's
law bans that practice on pain of fines or a

(28:44):
loss of her license. Colorado has challenged this before the court,
saying she doesn't have standing and that the counseling that
she has said she would like to engage in is
not covered by its laws.

Speaker 5 (28:56):
So that's an active argument happening before the court.

Speaker 8 (28:59):
Is exactly the scope of Colorado's law. But this is
a free speech challenge to that law, and especially as
it applies to Child's practice.

Speaker 5 (29:10):
Which is purely talk therapy.

Speaker 8 (29:14):
She contends that this is a content and viewpoint based
regulation on speech, and as with many free speech cases,
the key here is.

Speaker 5 (29:20):
The level of scrutiny. The court below held that Colorado's law.

Speaker 8 (29:25):
Regulates professional conduct, not speech, and it's subjected it only
to rational basis review. Chiles argues that it should be
subject to heightened scrutiny. She situates her challenge in the
line of a series of Supreme Court cases that reject
the idea that there is a separate First Amendment category
for professional speech that gets lower First Amendment scrutiny, and

(29:48):
the most recent in this line of cases, this is
a series of Supreme Court decisions that have upheld this
idea that.

Speaker 5 (29:53):
Professional speech is not different.

Speaker 8 (29:55):
The most recent of those is Niffla Vivisera, where the
court rejected the court below's contention that professional speech gets
a lower level scrutiny. Of course, here the tenser get
didn't exactly say that professional speech was a separate category.
It couldn't have under Nifhla, but it did hold that
that what Colorado is called treatment with words is not
actually speech, that it is professional conduct in this context.

(30:20):
So that'll it'll be interesting to see where the Court
lands on this if it continues in its line of
cases rejecting attempts by lower courts to carve out speech
in the professional context out of tightened First Amendment scrutiny.
And of course, there are some categories of speech that
the Court has said gets lower scrutiny. Those are factual,

(30:40):
non controversial information in commercial speech, and regulations of professional
conduct that incidentally burned in speech. So the Court is
also said, you know, of course, there are some categories
that are not don't get any scrutiny under the don't
get any First Amendment scrutiny, things like incitement. The Court
has been very resistant to adding any new categories to that,

(31:02):
and has said that, but has said that it is
possible that there could be other categories of speech, if
proven by a long history.

Speaker 5 (31:11):
Of regulation, that might not get heightened First Amendment scrutiny.

Speaker 8 (31:16):
Colorado tries to situate its ban in within that it
argues two categories of historical regulation by states that it
thinks that this should fall into and then it wouldn't
implicate heightened scrutiny. Those are medical malpractice laws and informed
consent of course, Childs does not agree that this law

(31:36):
would follow within those historical categories. She argues that the
ban is not similar to those analogs because it's a
prophylactic ban and its content and viewpoint based medical malpractice
and informed consent usually don't involve those characteristics, So she
shares that there aren't relevant analogs for the historical first
Amenment exception analysis both parties of brief and strict scrutiny,

(32:01):
So in this case, if the Court wants to reach
either of those, if it determines that one applies, it
could do so. The Court also obviously could determine the
level of scrutiny it thinks is applicable and remand to
the lower courts to decide that.

Speaker 5 (32:15):
In the first instance.

Speaker 8 (32:16):
And the last thing I'll add on that is just
that the United States has filed an amicus brief and
support of Childs, arguing that this is a continent and
viewpoint based regulation on speech and that strict scrutiny should apply.
The government urged the Supreme Court to remand for the
ten Circuit to apply strict scrutiny in the first instance,
but also argued that if the Court did decide to

(32:38):
address strict scrutiny that the law would fail. The Solicitor
General's office asks for time at argument, and the Court
is grand that request, so we'll also be hearing from
the United States at oral argument.

Speaker 4 (32:51):
Excellent, Thank you.

Speaker 7 (32:53):
Well.

Speaker 4 (32:53):
We have a first question for you is and I
don't know if you're able to answer this, but please
feel free to do so if you can. And why
is Charles not focusing on a free exercise claim? What
was instead is strictly a free speech claim?

Speaker 5 (33:07):
Yeah, so I can't answer this, street yeah, answer.

Speaker 8 (33:11):
The strategic question I can say is that Childs does
have a free exercise plane in the case. The tense
circuit considered her free exercise claim, but the CIRTA position
only included a free speech question presented. So that's the
only thing that the court is granted here. So it's
not before the Supreme Court. But there is a free
exercise claim in the case.

Speaker 4 (33:29):
Okay, wonderful, thank you, and let's see And I think
that's it for now. But if there any other questions
at the end, we can if they arise, people can
feel free to ask them. We will go on. So
thank you so much, Amanda for that presentation and we
will go on to our next presenter. Give me one
moment here, Okay, I want to make sure everyone's details correct.

(33:53):
So we have Matthew excuse me, we have Professor Morley
back first, he's going to be discussing Bost the Illinois
State Board of Elections. So Professor Morley, after a brief break,
you are back with us again, so that further Ado,
please feel free to start.

Speaker 9 (34:11):
Great, Thank you very much. So the plaintiffs, this is
a case about Article three standing. So the plaintiffs in
this case are incumbent Congressman Michael Bost, who was running
for reelection at the time, as well as two Republican
candidates for presidential elector from the state of Illinois in

(34:32):
the twenty twenty four election. So, Illinois has a state
law that specifies that election officials must accept absentee ballots
as valid and count them so long as they are
postmarked by election day, even if they receive them up
to two weeks after election day, and if a ballot

(34:54):
lacks a valid postmark, it can still be counted if
the if the voter submits an affidavit wearing was that
they had sent it out by election day, and again
election officials receive it within the two weeks afterwards. So
the plaintiffs claim that this deadline allowing election officials to
count ballots that they receive after election day conflicts with

(35:19):
federal laws, at least as applied to federal elections. There
is a long standing provision in Title II of the
US Code that says that the Tuesday next after the
first Monday in November in every even numbered year is
quote established as the day for election for congressional representatives.
There's a comparable provision in Title IIE specifying the day

(35:43):
on which states must appoint their presidential electors. And so
the underlying merits issue of this case, which is actually
not not what the court is going to be resolving here,
but the underlying merits issue is what these statutes mean,
and in particular, what acts with regard to an election
states must perform on election day itself, for congressional elections

(36:06):
or presidential elections, what steps in the electoral process may
happen after election day. But the court, the lower courts
didn't get to the merits because they dismissed the case
for lack of standing, and the thestanding analysis, of course
right tracing tracing back to lu Han versus Defenders of Wildlife,
the very first thing a plaintiff has to establish is

(36:28):
that they have suffered a concrete and particularized injury in
fact that has either occurred or that is imminent, that is,
that is that that is likely to be occurring soon.
And the Seventh Circuit held that the plaintiffs had failed
to had failed to satisfy that standard. That they that
the plaintiffs had failed to demonstrate that Illinois's choice to

(36:53):
accept these allegedly late ballots in alleged vio conflict with
with federal law would harm them because with regard to
Congressman Boston particular, first it looked at his most recent
election in twenty twenty two, and the court said that
the number of what I will call late received ballots
or allegedly late received absentee ballots hadn't been sufficient to

(37:17):
impact the election's outcome, hadn't been sufficient to jeopardize his
jeopardize his victory, and so therefore he had not been
harmed by the state's passed decision to accept those ballots
and count them as valid. And with regard to the
then impending twenty twenty four election, They said it was
purely speculative as to whether he would be whether he

(37:38):
would be impacted by the state's decision to count these
late arrived ballots. So the court essentially held, even if
it was illegal under federal law for election officials to
accept ballots that come after election day, unless a candidate
can show that those ballots in particular are reasonably likely

(38:02):
to impact the election's outcome, the candidate doesn't have standing
to bring a pre election challenge. Of course, after the
election is over, if it turns out that the margin
of victory in that election is less than the number
of late or allegedly late arrived ballots, then the candidate
would have Article three standing. So the court's ruling in

(38:24):
this case makes it much harder to bring pre election challenges,
particularly for candidates to bring pre election challenges to the
validity of the rules that election officials will use to
conduct that election, and tends to shift those challenges, if
they can ever be brought at all, to after the election.
So the plaintiff's main argument in this case is that

(38:47):
candidate really twofold. On the one hand, in general, candidates
do have a concrete, particularized injury in fact, to having
the elections in which they participate, the elections in which
they are running be conducted according to legally valid rules,
regardless of whether they can show a sufficient likelihood of
being prejudiced by potential violations of those rules. And then,

(39:11):
more specifically, the congressman boss is arguing that there actually
is a sufficient risk of him suffering, of him being
harmed by the state's decision to allow to allow these
allegedly late received ballots, that he should be permitted to
bring a pre election challenge rather than rather than having

(39:32):
to wait until after the election. From a pragmatic perspective,
the plaintiffs appear to have the stronger of the argument.
If candidates are forced to wait until after an election
is held in order to challenge election officials allegedly illegal conduct,
that puts candidates in the position of having to challenge
the apparent results of a completed election, and more importantly,

(39:56):
it puts candidates in the position of having to ask
court to reject votes that have been apparently legally cast
at the time, and in the worst case scenario, of course,
asking courts to have to conduct an entirely new election.
It's far burdensome to ensure that an election is properly
conducted in a first place, and that people have the
opportunity to exercise their fundamental right to vote, rather than

(40:20):
requiring candidates to wait until it's sufficiently likely that the
alleged violations either will actually impact the elections outcome or
have actually impacted the election's outcome. I will point out
that the United States has filed an AMEKAS brief in
this case in support of in support of Congressman Boss,

(40:41):
it's filed a motion to participate in oral argument. And again,
particularly in light of some of the Court's other recent
election cases dealing with issues such as laches and the
issues that arise in trying to challenge votes that have
been legally are were apparently legally cast at the time

(41:02):
of the election itself, I think this is something where
the petitioners or Congressment Boss seems to have a very
good likelihood of success, but we will see.

Speaker 7 (41:12):
Great.

Speaker 4 (41:12):
Thank you, Professor Morley. Very interesting. I'm opening up for questions.
Do we have any questions for Professor Morley? Give it
a few seconds. Okay, Well, thank you Professor Morley for
your time. That was very interesting. I've done some election laws.
It's great, so thank you. Our next presenter is Matthew Cavadon.

(41:34):
He is formerly a Georgia excuse me. He's the director
of the Project and Criminal Justice at the Cada Cato Institute.
He formerly served as a Georgia public defender as well
as a fellow at the Institute for Justice. He also
has taught law school courses on criminal law and procedure
as well as the First Amendment, and he clerks for
US District Court and the Supreme Court of Georgia. So

(41:57):
the first case he's going to be discussing with us,
he's going to be doing to the versus Ellenberg versus
v Us. So, without further ado, Sir Kavidan, thank.

Speaker 7 (42:07):
You very much. Holding Ellingberg had really unfortunate timing. He
committed a bank robbery in the mid nineteen nineties, and
as of the day that he committed that bank robbery,
federal law did require him to pay restitution back to
the bank, but it set limits on that restitution. For

(42:27):
one thing, there was a window of time after which
mister Ellingberg would no longer have to pay restitution. I
believe it was around ten years. Secondly, interest did not
apprue on the money that he owed. Mister Ellingberg was
then sentenced to around twenty or twenty five years in prison.
He did make regular payments toward restitution, but it was

(42:49):
at Princeton wage speed, so it was a few dollars
here and there. Mister Ellingberg had that timing because not
long after he was convict headed to prison, Congress changed
the law regarding criminal restitution. It kicked out the deadline
for how long somebody has to pay restitution, to calculate

(43:11):
it based on when they get released from prison rather
than the day that they're sentenced. In addition, it required
courts to include interest payments in the amount whether defendant
has to pay. So mister Ellingberg, after being released from prison,
found himself not only with his debts still standing, but

(43:31):
with it having actually increased to more than he had
already paid, still outstanding, and to a much broader time
horizon where he just has to keep on making these payments.
There is a possible constitutional limit to how much Congress
can change the law as it affects criminal punishments. The
Constitution's expost facto clause prevents the government generally from increasing

(43:56):
the punishment for a crime after that crime is committed.
So if Tigers had increased the maximum sentence at prison
time that mister Ellingberg faced, he would have been entitled
to be sentenced only under the old provision. The question
presented by this case is is criminal restitution criminal punishment

(44:19):
or is it some sort of civil remedy that's caught
up in a criminal case. But that's not actually covered
by the ex post facto clause, which applies only to
criminal punishments. So that's the legal question in the constitutional
question at the heart of this case. Cato filed a
brief arguing that indeed, criminal restitution is part of criminal punishment.

(44:42):
There are a number of different reasons why we argue
that that's the case. For one, it's imposed as part
of a criminal sentence right there next to you. How
long do you have to serve in prison? Who do
you have to report to for probation? What sorts of
things can you and can't you do? Is the line
that says he it's restitution you have to pay and
for how long, so and so forth. Secondly, it is

(45:07):
not just that Congress rolled restitution into criminal cases to
make things easier for civil plaintiffs. Rather, restitution is seen
as part of the criminal sentence. It serves the same
purposes as the sentence. It's meant in part to punish
a defendant for wrong they have done. It is meant
to dissuade other people from committing crimes, it's meant to

(45:30):
deter the defendant from going out and offending again. And
it's meant to be part of the rehabilitative process of
taking accountability for one's actions and paying back a debt
to society. So for all those reasons, at least, our
brief argues that this isn't just a civil remedy that
finds itself by accident within a criminal case. Rather, it's

(45:53):
part of criminal punishment, and if it's part of criminal punishment,
then it has to be covered by the expost factor laws.
There are a number of other cases that have addressed
interesting pseudo punishment debatable punishments within the context of the
expost facto clause. A really famous Contextpertis comes up. A

(46:14):
lot is sex offender registration. A lot of the modern
sex offender registration laws and restrictions on where sex offenders
can live, where they can work, how they can interact
with children were passed within relatively recent memory nineteen nineties,
early two thousands, So there were a large number of

(46:34):
defendants who committed their crimes before that, but who then
were suddenly hit with requirements to register, and they had
never been subject to that before. The Supreme Court ultimately
held that those kinds of restrictions are not in fact
criminal punishments. They're simple measures meant to protect society. Even
though somebody only becomes a legally recognized threat to society

(46:59):
by virtue of having been convicted of a crime and
having committed a crime, the Supreme Court still said that
this is a class of people who can just be
subject to civil safety measures. Even though the expost facto
clause would not allow those measures to be imposed as
criminal punishment, they were still valid because they were not
technically criminal punishment in the way that the Supreme Court

(47:22):
treats it. So that's going to be the question is
is criminal restitution analogous to sex offender registration requirements where
it's a civil safety measure taken after the fact, or
is it as again, we argued, is it part of
the criminal punishment system as a whole and should be
treated as covered by the expost factor clause arvery factually

(47:46):
argues that the Supreme Court should revisit some of the
other things that it is not considered to be criminal punishment.
Sex offender registration requirements would be one area to look.
Another is civil asset, orfeture, civil asset orfeiture about the
Supreme Court has been considered to be sideways to criminal proceedings.
And so if a legislature passes a law authorizing the

(48:08):
seizure of certain property, presumably that would not be covered
by the expost factor clause either because it's a civil measure.
We think that that's too wooden't of a distinction that
really it comes down to, is this something that only
happens to you because you've been proven to a committed
a crime. Is this the sort of thing that's aimed

(48:29):
at achieving the same goals as incarceration and other traditional
criminal punishments. Is this the sort of thing that quaques
walks eat spread frums just like a duck, and therefore
should be treated as a duct for purposes of the
expost factor clause. So we'll see if the Supreme Court degrees.

Speaker 4 (48:49):
Great, Thank you so much. Do we have any questions
this time? No? Okay, so I'm actually going to have
you continue to present if you're okay. For the next
one one you will be presenting Case v. Montana, And
so feel free to go ahead.

Speaker 7 (49:06):
Certainly, casey Montana is another Fourth Amendment case. I say
another because it seems like every few terms said there's
a pretty standard policing issue that comes up within the
context of the Fourth Amendment, and this is another example
of that. Casey Montana builds off of the Court's decision
just a term or two ago, and Canelia be Strong

(49:27):
so for a long time. The Supreme Court noted that
there are contexts where police are responding to properties without
necessarily investigating criminal activity. In Canubiklia, the Strong the State
of Rhode Island said there's in fact a Fourth Amendment
exception for what's called community caretaking. When police officers are

(49:50):
not going out into a house in response to alleged
criminal activity. They're not out there investigating a crime, but
they're out there for the purposes of some other concern
around public safety. In Connelia, there was a dispute between
a man and his wife. There was concerns about possible
self harm or mental illness, so the police responded and

(50:13):
went in to retrieve mister Connelia's firearm. The Supreme Court
in that case said that there is no free floating
community caretaking exception to the Fourth Amendment. That police officers,
whenever they're entering the castle, that is, somebody's home, they
generally are covered by the Fourth Amendment's requirements to either

(50:33):
have a warrant or have some other discrete, historically recognized
exception for going and getting a warrant. So in Connelia,
the Court said there is no community caretaking exception to
the warrant requirement. The only similar exception is what's called
exigent circumstances. Whenever police face an emergency situation, they may

(50:55):
be able to enter into somebody's home without a warrant.
If a police officers walking the beat in the neighborhood
and here's screaming from somebody inside saying health help, I'm
being attacked, No, the police officer does not have to stop,
get out their cell phone, call up the on duty
magistrate judge, get a warrant, and then go in. In fact,
nobody wants them to do that. When a police officer,

(51:18):
here's an emergency going on, we expect an officer to
go ahead and proceed in that is constitutionally reasonable, even
though there's not a warrant under those circumstances, what if
you don't hear somebody screaming and they're in active danger,
but police have other concerns. That's the question raised by
Case They Montana Case. Mister Case's ex girlfriend called the

(51:43):
police and said he is threatening to commit suicide. The
police arrived on sen at the house, did not immediately
make entry. They looked through the windows, they looked for
signs of disorder. They didn't see a ton They saw
a gun holster on the table that was empty, but
that was it. They didn't see any other signs of

(52:05):
disruption or causes for concern. Not to say that they
weren't concerned, but they did not immediately make entry into
the house. In fact, part of the reason that they
didn't do so was because, based on previous calls out
to the house, police believed that mister Case may have
been attempting what's called blue suicide, which is where somebody

(52:25):
who is suicidal has the police killed them in a
standoff rather than killing themselves. The police were unsure what
to do. They in fact, spent about forty five minutes deliberating.
None of the officers during that time called and sought
a warrant to enter the home. Instead, after forty five minutes,
they decided they were going to go ahead and make

(52:47):
entry based on exigencies. They entered the home that they
did find mister Case hiding in a closet nearby. They
found an illegally owned firearm in a laundry basket. They
seized the begun. They're now prosecuting mister Case or the
gun possession charge based on that firearm. He moved to
suppress the firearm and said that the entry into the

(53:08):
home was unconstitutional. Montana made a very particular choice in
litigating this, and I'm not sure what the particular reason
for that was. Montana conceded that the officers did not
have probable cast that enter the house. They argued that
all that the officer needed and all that the officers
had was reasonable suspicion, which is a lesser showing. But

(53:31):
they said, when you have reasonable suspicion of excedent circumstances
or of an emergency, that's all that you need to
enter into a home. Reasonable suspicion is not one of
the super ancient doctrines and criminal procedure. It was created
by the Supreme Court in Terry, the Ohio in order

(53:52):
to justify stops that fall short of a full lon arrest,
but it doesn't have a whole lot of originalist pedigree.
As a way of thinking about the Fourth Amendment. The
question that the Court is going to have to face
now is is that sort of in between I don't
mean made up to dismissively, but made that category. Is

(54:13):
that enough to justify an entry into the home? The
Supreme Court has that on numerous occasions entry into the home.
Is that in the heart of the Fourth Amendments concerned,
The warrant requirement is meant to protect certainly Americans' privacy
within their own homes and the liberty that comes with that,
but also to protect human life. Home entries are particularly dangerous.

(54:34):
They're dangerous for people who are suspects. They're dangerous for homeowners,
especially if officers show up at the wrong home, as happened. Sometimes.
They're dangerous for officers who may be fired upon when
they enter into a home. For all of those reasons,
the Court has said, we expect a pretty high quantum
of proof before officers enter into a home as they

(54:55):
did in the case case, but let that be too confusing.
In mister cases case, the question is is probable cause
still required or a warrant acquired under this excedent circumstances exception,
The case itself is going to regulate police behavior nationwide,

(55:15):
so it could have a significant effect. There's not necessarily
a ton of room between reasonable suspicion versus probable cause.
Different judges are going to make different judgment calls as
far as what said of the line that falls on. Nevertheless,
Cato did file a brief in that case as well,
discussing some of those traditional Fourth Amendment requirements and the

(55:36):
importance of having strong evidence before making a home entry,
especially in light of the fact that, again the officers
here claimed to be facing an immediate emergency that stopped
them meeting a warrant, but also chose to wait forty
five minutes were actually entering into the home.

Speaker 4 (55:56):
Thank you, Matthew. I think we will go on to
our last presenter, mister Richard Riley. He is a partner
at Baker House Setter where he does appellate law as
well as with a focus on election law. He has
represented parties and Amiki at every level of the judiciary,
trial courts, merit litigation, and the U. S. Supreme Court,

(56:18):
as well as state supreme courts. He has litigation experience
involving a variety of different matters, commercial litigation, civil rights,
constitutional campaign finance, voting rights, labor and bankruptcy laws. Today
he will be presenting for US Louisiana Vikala and I
will hand the mic over to Richard.

Speaker 3 (56:39):
Thank you, Ariel. This case comes out of Louisiana's congressional redistricting.
The state of Louisiana was told by the Fifth Circuit
as well as a federal district court that it's congressional
map likely required a second majority black district. That case

(57:01):
is called Robinson. As a matter of full disclosure, I
was a lawyer for the state legislative leaders in Robinson.
I am not involved in the Kalais litigation. The theory
that was utilized in the Robinson case is under section
two of the Voting Rights Act that was interpreted in
a case called Jingles, which I will refer to as

(57:25):
Jingles and describes the conditions under which a state becomes
obligated to draw a majority minority district, as I said,
the Fifth Circuit said in preliminary injunction proceedings that the
State of Louisiana likely was obligated under Jingles to draw
a second majority black district. Rather than continue to fight

(57:49):
that case, the legislature elected to redraw the map itself,
and in fact, the Fifth Circuit had explicitly invited the
state to do so and urged it to do so.
The state drew a second map with a majority black district,
but it had a different political impact than the illustrative

(58:13):
district that had been presented by the plaintiffs in Robinson.
The illustrative district in Robinson would have impaired the electoral
prospects of Julia Letlowe, who sits on the Appropriations Committee,
very powerful member of Congress. It may have harmed the
electoral prospects of Speaker Johnson. So the legislature, as you

(58:36):
might imagine, is very concerned about a situation in which
a federal court draws the congressional districts of Louisiana and
harms electoral prospects and the standing of the delegation in Louisiana.
So it enacts that plan. A second challenge called Klay,
which is our case, followed quite quickly as voters in

(58:59):
the new Day district challenge that district as a racial
gerrymander under a theory that I will refer to as Shaw.
A constitutional case against a congressional redistricting plan is subject
to the three judge Panel Act and goes to a
three judge district court. Not and so it couldn't go

(59:22):
to the same judge who decided Robinson was a single
judge that can preside over a Section two Voting Rights
Act claim, so you have new judges. Additionally, that case
from a three judge district court is immediately appillable to
the US Supreme Court and is on its mandatory doctor.
The new judges look at the new majority black district

(59:46):
and apply the Shaw theory, which asks, first whether race
was the predominant factor in the creation of a district,
and second, if so, whether the state can prove that
the the use of race was narrowly tailored to a
compelling state interest. And the Kalai Court determined in a
split vote that yes, race predominated, notwithstanding the political goal

(01:00:11):
that I just described, and that, notwithstanding the Fifth Circuit ruling,
the district was not narrowly tailored to a compelling state interest.
The state appealed. The Robinson plainuffs intervened and they appealed
as well. I think it's important at the outset to
understand the casing context, and it's helpful to contrast it

(01:00:32):
with the current state of affairs in Alabama. That state
was also told in litigation during preliminary injunction proceedings by
a district court and the US Supreme Court that it
too likely needed a second majority black district. It too,
elected to redraw its map after the preliminary injunction proceedings,
but Alabama did not draw a second majority black district.

(01:00:57):
The federal court in that case determined that Alabama not
only violated Section two of the Voting Rights Act, but
that it also violated the US Constitution. In short, we
have two states very near each other, who have made
different choices with respect to preliminary injunction rulings directing second
majority black districts, and both were found to have violated

(01:01:20):
the US Constitution. Hopefully you all can get the sense
that something isn't working very well in this area of law,
and it comes down to a conflict with the Shaw
theory and the Jingles theory. The Supreme Court considered Colay

(01:01:40):
last term and had fulsome briefing under the doctrine as
it exists presently, and it was not able to resolve
the case. It has ordered reargument in the case to
answer a more fundamental question of whether the state's intentional
creation of a second majority minority district lights the fourteenth Amendment.

(01:02:01):
A little background may help to understand how we got here. Jingles,
as I said, describes the circumstances where a majority minority
district is required. A plane off has to show a
reasonably compact minority population racial block voting, and then show
that under the totality of circumstances, the voting opportunity is

(01:02:25):
not equal. When that case was handed down, the practical
effect in redistricting across the nation by legislators controlled by
both parties was to find minority population, draw a circle
around them, call it a district, obviously, make sure it's
equally populated, and then fill out the remaining of the

(01:02:45):
remainder of the map. That was very common because that's
the easiest way to avoid Section two litigation. Shaw arose
in the nineteen nineties, and it was not originally conceived
as a challenge to that framework, or at least it
was not originally framed that way. Shaw was controversial from
the beginning. It was developed in a series of five

(01:03:07):
to four rulings where the decisive vote was Justice of Connor.
In those cases, Justice O'Connor described the doctrine as an
extreme case doctrines use the word extreme instances because in
that decade, legislators, and they were typically democratic legislators, drew
very bizarre districts, including freeways, districts described as being in

(01:03:32):
the shape of a Mayan bird, a district that joined
Atlanta and Savannah into these weird districts that were actually
being urged by the US Department of Justice, and the
Justice O'Connor found these districts to be problematic, as did

(01:03:53):
the sort of conservative side of the court. The so
called liberal side of the court was in dissent, including
Justices Skinsburg, Bryer, Suitor Stevens, and Justice White for the
first case, and the dissent made the argument that in

(01:04:15):
an equal protection racial discrimination claim, where there's not a
racial classification that appears on the face of a statue
or a rule, there's a requirement of both discriminatory purpose
and discriminatory effect, some kind of harm. And they made
the point that when you are in District one versus

(01:04:35):
District two without any showing that it delutes your vote
or it harms your electoral prospects, which Shaw excused, there's
not a harm. There's an intent that's racial, but there's
not a harm. That position lost. But there was a
limiting principle that appeared in the writings of Justice O'Connor

(01:04:57):
that although it didn't require a discriminatory effect in the
form of vote dilution, only districts that were shown to
substantially derogate from traditional districting principles would be subject to
strict scrutiny. Accordingly, at according to Justice O'Connor, the swing
vote the majority minority districts of this country were not

(01:05:22):
at issue in Shop. It didn't concern that at the time.
Justice Scalia took a much broader view and took the
position that any time they state draws a district to
hitting racial target, which is what a majority minority rule is,
it's a racial quota, it should be subject to strict
scrutiny and the state should have to effectively prove a

(01:05:45):
voting Rights Act claim against itself. For a time, this
doctrine did not other than the district struck down, which includes,
by the way, districts in Louisiana. There was Hayes litigation
in Louisiana where districts was in the shape of Z
and one slashed across the state, not actually that different
from the new district in some ways were struck down

(01:06:10):
as racial gerrymanders. They failed under this theory, but the
next decade it was much quieter because there was an
understanding to draw the majority minority districts in the same
way that other districts were drawn, and there wouldn't be
a strict scrutiny proper. That changed last decade, and for
an arguably unlikely reason, which was that voting rights groups,

(01:06:33):
groups associated with the Democratic Party all of a sudden
saw in Shaw a possibility to gain some seats across
the South, which was now being redrawn by Republican controlled legislators,
and they came into court with a very muscular view
of Shaw that was not that different from what Justice

(01:06:56):
Scalia had proposed. That a the states had adopted a
quota fifty sometimes fifty five percent, and that this should
subject the district to strict scrutiny, which they couldn't survive
under this theory because there was no statistical analysis demonstrating
legally significant racial block voting. This was largely successful. More

(01:07:23):
than fifty districts in the United States were struck down
as racial gerrymanders last decade. All but one of them
is that I'm aware of was drawn by a Republican
legislature and challenged by Mark Elias ANDAACP Legislative Black Caucacy
Group along those lines, and the theory that developed was

(01:07:47):
actually caused because the left side of the court threw
its full weight behind show. Justice Kagan wrote the leading
opinion kuberbersus Harris, Justice Ginsberg, asprior Justice sodomaor all came
over and started voting for a very muscular version of
Shaw that came close, not entirely around to saying that

(01:08:11):
the mere goal of my majority minority target triggers strict scrutiny.
In a case called Bethune Hill, which I participated in,
the court explicitly rejected the O'Connor framework and said there's
no requirement of conflict with traditional districting principles, So that
begs an interesting question, as Shaw increases, shouldn't Jingles decrease?

(01:08:40):
Which was the implication that was being leveled against the
claim in the nineties that this was designed as a
backdoor attack on the Voting Rights Act ause of the
two thousand cycle. People aren't saying that so much anymore,
but it does beg the question, how can states one
draw these districts and two how can courts compel them

(01:09:01):
to draw these districts with this highly muscularized version of
Shaw That becomes the question this decade. And in the
case out of Alabama called Milligan, the court was presented
with its first opportunity to ask whether Shaw would change Jingles,
and the answer to the court gave was no except maybe.

(01:09:27):
The court was highly divided. Justice Roberts cast the deciding
vote to uphold Jingles. And this is the case where
Alabama is told it needs a second majority black district,
but the decisive vote is passed by Kevin. In his concurrence,
he says that Section two doesn't have an expiration date,

(01:09:52):
and typically, as we know from the students, for fair
admission or FFA litigation, racial classic locations need to have
an endate, And Kavanaugh said, maybe that's a problem. Here
is the decisive book. Moreover, there's a section of Milligan
three b one that cites Shaw and may read some

(01:10:16):
of Shaw into Jingles to limit it, except that Kavanaugh
for some reason didn't join three b ones. There was
a plurality, and it's hard to understand what it's saying anyway,
So we have maybe Jingles gets curtailed, maybe not. Hence
collect here the state appealed, the Robinson planets appealed, and

(01:10:40):
the state defended the districts, and there were the court
had what it needed to resolve the case under existing doctrine.
Last term, there are basically two views of the case.
One you could view the district which did slash across
the state, starting in Baton Rouge and going to the northwest,

(01:11:02):
a little bit like some of the Hayes district. It
could view them as not sufficiently compact to be narrowly
tailored under the Voting Rights Act, not enough like the
remedial district in Robinson to pass muster, and thus the
district should be invalidated, which was what the district court said,
or the court could view it as a matter of
legislative discretion. Once the violation is found there's lots of

(01:11:28):
case law that says the legislature should be able to
choose the political impact here. The legislature didn't want to
compromise its standing in Congress with the congressional delegation for
very good reasons. So there's a very good theory by
which it might be Uphelt. It appears that the Court

(01:11:49):
can't agree on either of those frameworks or on any
of the other arguments that were made in the case.
And there are others, and so it is asked for
a much more fundamental question, and it references pages thirty
six to thirty eight if the brief for the Apple Lae.
That's interesting because Justice Kavanaugh at oral argument also cited

(01:12:11):
pages thirty six through thirty eight of the brief of
the Apple Ice and tied it to his concurrence in Milligan,
where he said, as I said that maybe section he
needs an expiration date. So all of a sudden, this
becomes maybe an SFFA type challenge to the Voting Rights
Act itself or to the very idea of challenging majority

(01:12:33):
black districts. Seems awfully coincidental that Justice Kavanaugh is having
these doubts and we have these pages referenced. So the
state has switched sides and is now arguing that it
violated the Constitution by adopting this district and the Court

(01:12:54):
should effectively return it to where it would rather be.
And to its credit, it all always said we would
rather have one than two majority black districts. We didn't
agree with the Robinson ruling, they said, but they felt
obligated to follow it. So the only parties now defending

(01:13:15):
the map are the Robinson plaintifs, who are obviously defending
Congress's power to enforce the fifteenth Amendment, emphasizing that section
two requires evidence based on current circumstances and so that's
the built in timing concern that should address Justice Kavanaugh's concern,
And there are innumerable amicus briefs. The Solicitor General hast

(01:13:36):
fyled a brief suggesting that Jingles be reworked to incorporate
lots of the concepts of the Shaw doctrine in such
a way that the Robinson plans would never I don't
think be able to meet that standard, and the case
would return to one majority black district. The case will
be argued on October fifteenth.

Speaker 4 (01:14:00):
Thank you very much. That was excellent. I have a
question for you, How can or how does any of
this apply to the current mid decade redistricting battles between
the major political parties amongst several of the states.

Speaker 3 (01:14:15):
Could you repeat that question, How.

Speaker 4 (01:14:19):
Can or how does any of this apply to the
current mid decade redistricting battles between the major political parties
amongst several of the states.

Speaker 3 (01:14:28):
It applies not directly. I think it applies more indirectly,
and it certainly applies politically. Let me say a few
things about that litigation. A lot of the on the
Republican legislatures after the last decade, and they saw lots
of districts struck down, as I described, took an approach

(01:14:49):
of not considering race at all and taking their chances
under Section two. And there are means by which plaints
will try to make a case that even though they
deny the use of race, the legislature actually used it secretly.
There's a case called Alexander out of South Carolina that

(01:15:09):
makes that very very difficult, but it's being tried anyway.
There's no constitutional problem within the decade redistricting. The Court
held that in a case called lu Lac versus Perry.
So the plaintiffs in these cases don't have an argument,
or at least not a good argument, that there's some kind
of problem within the decade redistricting. What is being argued

(01:15:29):
in some of these cases is that race was used
and that either a Shaw doctrine or actually an intentional
vote dilution doctrine, which is analytically distinct, has been violated.
So it may be relevant there. Some of the politics
may be relevant. I don't know what's sort of going
on inside the state of Louisiana. My representation there has ended,

(01:15:55):
but we know that the White House is asking for
more Republican districts. If Kalay goes as the state hoax,
that will be another probably will be another Republican leading district.
So there's sort of political motivations all the way around.
You cannot separate either the litigation itself, the line drawing process,

(01:16:15):
or anything about this the decisions from politics, So there
are shades of overlap, but legally the issues probably will be.

Speaker 4 (01:16:25):
To stick excellent. I have one more question for you,
and then I will wrap up with the summaries of
the three cases that were not covered. How made this decision,
if at all affect the validity of the pending Proposition
fifty in California, which would restructure all the districts to
eliminate five Republican congressional seats.

Speaker 3 (01:16:45):
Of the case would affect it if the resulting map
were shown to be impacted by race. There's nothing about
the proposition itself, the ballot process potentially ending or I
guess putting a heats on the California Independent Redistricting Commission

(01:17:10):
that concerns the US Supreme Court. At least presently. The
commissions were dealt with in a case out of Arizona
last decade. So if the resulting map was impacted by
racial considerations by the legislature or whoever do the map,

(01:17:31):
then it may well be vulnerable under the theory that's
at issues here. If not not.

Speaker 4 (01:17:38):
Last question, and then I will, I will allow you,
I will let you go. Is it possible that the
Supreme Court is simply rule that any motivation based on
race violates the Fourteenth Amendment under strict scrutiny, notwithstanding anything
to the contrary in the Voting Rights Act.

Speaker 3 (01:17:52):
Yes, okay, that is possible. It's the I read some
of the thing of the parties to ask for that,
the Solicitor General has urged that the predominant standard remain
I have as a practitioner, I don't view that the
predominant standard to be that robust, and in fact, as

(01:18:16):
I kind of suggested, there are arguments to be had
that the predominant standard may actually be easier to need
than standards in other areas of equal protection litigation. I
don't know that that's something that members of the Court
have necessarily thought about, but it's not that hard to
show racial predominance when there is a goal of complying

(01:18:38):
with the Voting Rights Act. The state had argued, for example,
that politics predominated race didn't predominate politics predominated, and I
think Justice O'Connor would have endorsed that. I think they
would have won under her worldview for the reasons I said,
But today they really didn't have a very good shot

(01:19:01):
on that because the standard is so low, it's so
easy to prove predominance where you have a majority minority goal,
that they really didn't have a chance of winning on that,
And they clearly have not persuaded the Supreme Court that
the district is race neutral or else. The question. The
new question presented wouldn't be phrase the way that it

(01:19:22):
is excellent.

Speaker 4 (01:19:24):
Thank you well, Thank you so much, Richard. I greatly
appreciated that. And that concludes the presenters. I'm going to
go over the three last cases that we did not
have presenters for. It'll be very speedy, but hopefully give
you a quick overview of the question that the Supreme
Court will be hopefully answering. The first one I'll be
discussing is US Postal Service v. Conan. This is actually

(01:19:47):
sort of an interesting fact pattern. It's something you might
see in law school, but it feels a bit silly,
but it's not. There was an instance in which US
Postal workers were actually intentionally not delivering mail to an
individual to one of her properties. They actually changed the
locks on one of her mailboxes. Even after ownership was
confirmed on her property, the two postal workers continued to

(01:20:09):
halt delivery. Conan, the woman who owns the properties. She's
a black woman, and she believes that this may have
been done due to racial discrimination. That's what she aledged.
So she sued US Postal Service, the two postal workers
at issue the United States as well under the Federal
Towarts Claims Act. She led violations of equal protection guarantees

(01:20:30):
of under both nineteen eighty one and nineteen eighty five.
The District Court dismissed her FTCA claims for lack of
subject matter jurisdiction. There is a postal matter exception, which
basically is under twenty USC. Twenty six eighty B, the
government retains sovereign immunity for quote any claim arising out

(01:20:50):
of the loss, miscarriage, or negligent transmission of letters or
postal matter. So the question here was did the behavior
of the postal officers It seems very flavored in my mind,
But the behavior of the plane of the post officers
here who intentionally refused to deliver her mail, did that
actually fall under this postal matter exception? And so, going
back to the procedural history, the District Court dismissed her

(01:21:13):
FTCA claim saying that yes, it fell under this exception,
and that her equal protection claims were failed for failure
to state a claim. The Fifth Circuit affirmed the dismissal
of the equal protection claims, but actually reversed on the
FTCA claim, holding that sovereign immunity did not preclude her
from bringing claims based on intentional acts of mail non delivery,

(01:21:36):
and so the question that the court will be answering
is does a claim that the postal service employees intentionally
refuse to deliver mail to a designate address arise out
of quote the loss or miscarriage of postal matter under
the ftca's postal matter exception. So that's kind of an
interesting workie case. The next one, the next two are
both hobzacked robbery cases, which I'm sure you're going to

(01:21:57):
uh are. I'm sure the clerks love those ones. The
first one is it's hobsacked robbery, but it's actually a
habeas case and it concerns the interpretation of EDPA. This
is EDPA cases or habeas cases are always really long
procedural histories, but I have tried to shorten it to
the best of my ability to get to the nugget
that will be of interest to us. So in two

(01:22:19):
thousand and eight, Michael Bow was charged with conspiracy to
commit hobzact robbery, attempted hobsack robbery, and using a firearm
during a crime of violence. He pleaded guilty in two
thousand and nine. He received a two hundred and eighty
eight month sentence which included a mindatory consecutive one hundred
and twenty month term for the firearm conviction under a
nine to twenty four set. Starting in twenty sixteen, he

(01:22:40):
made multiple attempts to challenge his conviction through a series
of motions and applications, arguing that changes in Supreme Court
president meant that his underlying crimes no longer qualified as
crimes of violence. The District Court initially denied his first
two two five to five motion, finding that the attempted
Hobbzact robbery still qualified as a crime of violence. After that,

(01:23:01):
he filed applications seeking to file additional challenges, and he
was denied several times by the Eleventh Circuit, which ultimately
concluded that it lacked subjects lacked jurisdiction to consider his
latest application because he was attempting to raise the same
claim he'd already presented in previous applications, and EDKE requires
the dismissal of second or successive motions to vacate under

(01:23:23):
section two two five to five. So basically, the Eleventh
Circuit continued to deny his application to challenge his the
designation as a crime of violence Obsact robbery, and so
this is an interesting case because the Supreme Court is
actually going to answer whether the rule requiring dismissal of

(01:23:43):
repeat claims in state prisoner habeas petitions also applies to
repeat claims in federal prisoner motions to vacate their sentences.
And then the second is whether the Supreme Court even
has the jurisdiction to review the grant or denial of
authorization by a court of a pew to file a
second or successive motion to vacate under two two five five.

(01:24:04):
So does the Supreme Court in this case, I guess,
as a threshold matter, even have the ability to evaluate
the grant or a denial of an application to challenge
to challenge your conviction. So that is Bow v Us.
And I will do the last one very quickly in

(01:24:25):
the last three minutes. This is another again another Hobsact
robbery case, but this I will try to keep it
as brief as possible. So this is Barrett v Us.
Barrett was involved in several robberies one day and he
actually one of the victims of his robbery ended up
was end up being murdered as he was trying to

(01:24:46):
thwart the robbery. Barrett was indicted on multiple accounts, including
conspiracy to commit Hobsact robbery, two substant accounts of Hobsact robbery,
and a separate firearms offense which included a murder charge
under eighteen USC. Nine twenty four or J. So he
was convicted in twenty fourteen. He was a sentenced to
ninety years in prison. On appeal, the Second Circuit vacated

(01:25:08):
one of the firearms convictions under these Supreme Court's decision
in usv. Davis. So then he was resentenced to fifty years.
In twenty twenty one, and after further public proceedings, the
Second Circuit affirmed most of its convictions and sentence, but
vacated and remanded for resentencing and lay of the Supreme
Court's decision in Laura v. United States, which held that

(01:25:31):
nine twenty four J does not require consecutive sentencing under
nine to twenty four C. So what does all of
that mean? I can go through basically the statutes at
issue here. Nine twenty four C. It's a very popular
firearms statue. It prohibits possessing, carrying, or using a firearm
to advance either a federal crime or violence or a
drug trafficking offense. Nine twenty four J is a part

(01:25:54):
of the statute that captures aggravating factors associated with the
crime in nine twenty four CS. So under nine twenty
four J, that applies when a defendant, in addition to
violating nine twenty four C has also quote caused the
death of a person through the use of a firearm.
So basically, if a murder occurs in conjunction with a
nine to twenty four C crime, that's when nine twenty
four J will apply. Section nine twenty four J requires

(01:26:17):
proof of the nine twenty four C offense, which are
just stated along with the death of the person. So
the question at issue in the Barret case is whether
nine to twenty four J so that aggravating factor statute
effectively creates a separate crime that carries a separate punishment
from nine to twenty four C. And if that's the case,

(01:26:37):
if there are two separate punishments, does that actually violate
the Fifth Amendments ban on double jeopardy prohibiting sentencing a
defendant for two different crimes because it's based on the
same robbery. So that is the summary of the last
three cases that we had, and I know that we
have one minute left, so I think I will conclude there,
but thank you everyone for sitting in and thank you

(01:26:59):
to our present was excellent, it was thorough and we
managed to stay right on.

Speaker 2 (01:27:03):
Time, perfectly done to our entire panel. I want to
say thanks for your efforts and expertise this afternoon for
our audience. Your feedback is always appreciated at info at
fedshsok dot org. Until next time, thanks everyone for joining us.
We are adjourned.

Speaker 1 (01:27:23):
Thank you, thank you for listening to this episode of
fedsock Forums, a podcast of the Federal Societies Practice Groups.
For more information about the Federal Society, the practice groups,
and to become a Federal Society member, please visit our
website at fedsoc dot org.

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A Seat at the Sitting - October 2025

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.css-14f5ked{margin:0;word-break:break-word;display:-webkit-box;-webkit-box-orient:vertical;box-orient:vertical;-webkit-line-clamp:2;overflow:hidden;}A Seat at the Sitting - October 2025