Federalist Society Practice Groups Podcasts

Last term, in a 5-4 decision, the Supreme Court upheld Arizona’s independent redistricting commission. State legislators had challenged the creation of such a commission, arguing that transferring their redistricting authority violated the Elections Clause of the U.S. Constitution. Now, in Harris v. Arizona Independent Redistricting Commission, the Court will consider a challenge to state legislative districts drawn up by the commission. A group of voters argue that the commission overpopulated Republican-dominated districts by packing in non-minority voters while placing minority voters in smaller, Democrat-dominated districts. The result, they argue, is the dilution of votes in GOP districts, which violates the “one person, one vote” guarantee of the Fourteenth Amendment’s Equal Protection Clause. Mark “Thor” Hearne, counsel for Harris in the case, discussed his impressions of oral arguments and made predictions about how the Court might rule in this important case. -- Featuring: Mark F. Hearne, II, Partner, Arent Fox LLP

Our Teleforum previewed the oral argument in the Supreme Court in Evenwel v. Abbott. What is meant, precisely, by the term “one person, one vote”? What are its implications for apportioning legislative districts? Does the Equal Protection Clause allow States to use total population, or does it require States to use voter population, when apportioning its legislative districts? What are the best arguments to be made by each side? These and other questions were addressed as we previewed one of the most talked-about cases of the Term. -- Featuring: Bradley A. Benbrook, Founding Partner, Benbrook Law Group and C. Dean McGrath Jr., Founder, McGrath & Associates.

On Friday, the D.C. Court of Appeals heard U.S. Telecomm Association v. FCC, a challenge to the FCC's much-discussed net neutrality rules. Proponents of the rule assert that it is needed to ensure that all internet traffic is treated equally, to ensure fair access to the internet and all it offers, access that is currently controlled by internet service providers. Critics of the rule claim that the FCC lacks authority to regulate the internet, that the rule violates the plain wording of the Telecommunications Act, that the White House intervention in calling for the rule violated both basic separation of powers and notice and comment requirements, and that the rule implicates free speech. Which side has the better argument? -- Featuring: Brantley Webb, Associate, Mayer Brown LLP and Adam J. White, Visiting Fellow, The Hoover Institution.

On December 9, the Supreme Court heard oral argument in Abigail Fisher v. University of Texas at Austin. In this case, Ms. Fisher challenges the use of racial and ethnic preferences in undergraduate admissions at the University. This is the case’s second trip to the Supreme Court; in 2013, the Court reversed a Fifth Circuit decision that had upheld the University’s policy, and said the lower court had been too deferential to the school, particularly with respect to applying the “narrow tailoring” prong of strict scrutiny. On remand, the Fifth Circuit again ruled for the University, and last summer the Court granted Ms. Fisher’s petition. -- Mr. Clegg and Prof. Shaw discussed what the Court is likely to do with the case, as well as what the Court should do with the case. The Court’s review comes at an interesting time, with numerous campus protests on race-related issues. Also of interest is the fact that Ms. Fisher’s lawyers have now filed lawsuits against Harvard and the University of North Carolina – Chapel Hill, and have emphasized allegations of discrimination against Asian Americans. -- Featuring: Roger B. Clegg, President and General Counsel, Center for Equal Opportunity and Prof. Theodore M. Shaw, Julius L. Chambers Distinguished Professor of Law, and Director of the Center for Civil Rights, University of North Carolina School of Law.

The attacks by ISIS on the citizens of Paris and the world have again focused attention on the challenges of counterterrorism. In this Teleforum, former U.S. Secretary of Homeland Security Michael Chertoff and prominent French lawyer Francois-Henri Briard addressed issues such as international cooperation on surveillance and intelligence sharing, whether policies on encryption of electronic communications need to be revised, what authorities or international institutions, if any, should be called upon in support of the use of force against ISIS, and the nature of the response from France, the U.S., Russia, and other nations. -- Featuring: Francois-Henri Briard, Supreme Court Attorney (France), Delaporte, Briard & Trichet and Michael Chertoff, Executive Chairman and Co-Founder, The Chertoff Group.

Two years ago, the Supreme Court’s 7-1 ruling in Fisher v. University of Texas required race-conscious college admissions programs to be subject to strict judicial scrutiny, mandating that such programs be narrowly tailored to serve a compelling government interest. On remand, the Fifth Circuit upheld the University of Texas’ admission policy as meeting that standard, but the case will once again be considered by the Supreme Court, and was argued on December 9. What are the issues now under consideration, and what are the arguments of each party? Why has the case returned to the Court a second time? -- Featuring: Joshua P. Thompson, Principal Attorney, Pacific Legal Foundation

Our panelists will discuss the criminal justice system generally, and the role of the prosecutor in particular. Some argue that, with the weight of the state and its resources on one side, including a deep book of potential crimes, the deck is unfairly stacked against criminal defendants. Others argue that police and prosecutors act in good faith, and credit them with incapacitating career criminals, trimming recidivism, and causing a plunge in national crime statistics. Who has the better of the argument? -- Featuring: Hon. Alex Kozinski, U.S. Court of Appeals, Ninth Circuit and Prof. William G. Otis, Georgetown University Law Center.

At issue in Evenwel v. Abbott, argued on December 8, is whether the three-judge district court correctly held that the “one person, one vote” principle under the Equal Protection Clause allows States to use total population, and does not require States to use voter population, when apportioning state legislative districts. Must each voter’s vote count equally and, if so, how is that to be accomplished? Does the scheme under consideration dilute the votes of certain people and, if so, how are their interests to be balanced against the goal of attaining majority-minority districts? What level of judicial scrutiny will be applied in this case? How does this case differ from Harris v. Arizona Independent Redistricting Commission? Andrew Grossman attended the oral arguments and offered his impressions and predictions on s Courthouse Steps Teleforum conference call. His piece "Evenwel v. Abbott: What Does One Person, One Vote Really Mean?" is valuable background reading on this critical case. -- Featuring: Andrew Grossman, Associate, Baker & Hostetler, and Adjunct Scholar, The Cato Institute.

Acclaimed military historian, prolific columnist and political essayist Victor Davis Hanson discusses President Obama’s foreign policy on a special Teleforum conference call. With a growing number of troubling hotspots throughout the world, and the November 13 attacks on Paris, this discussion was be extremely timely. -- Featuring: Dr. Victor D. Hanson, Martin and Illie Anderson Senior Fellow, Hoover Institution.

On November 10 the Supreme Court heard oral arguments in the case of Tyson Foods, Inc. v. Bouaphakeo. In this case, Tyson Foods was ordered to pay $5.8 million in damages in a class action lawsuit brought by employees alleging violations of various federal and state labor laws. A class of employees sued Tysons for failing to properly compensate them for time they spent donning and doffing protective clothing and equipment and washing equipment. The 8th Circuit allowed the plaintiffs to use used statistical sampling to determine damage awards. The Eighth Circuit certified the class under Rule 23 despite a wide variance among class members of time spent donning, doffing and washing equipment. The outcome of the case could have a significant impact on the rules governing class certifications and whether statistical sampling can be used in the class action context. -- Featuring: Karen Harned, Executive Director, National Federation of Independent Business Legal Center.

On November 2, 2015 the United States Supreme Court heard oral arguments in Spokeo v. Robins. Spokeo, a “people search engine,” published inaccurate information about Thomas Robins, who sought to file a class action lawsuit under the Fair Credit Reporting Act. A district court found that Robins lacked standing to bring suit, since the incorrect biographical information published by Spokeo had not caused a concrete harm. In a case that could have potentially far-reaching implications for environmental, civil rights, and other class-action litigation, the Court will decide whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute. -- Featuring: Cory L. Andrews, Senior Litigation Counsel, Washington Legal Foundation.

At a time when some argue that the Rule of Law seems to be deteriorating and with a Presidential election heating up, the question of judicial review has perhaps never been more vital. Yet debate over the best methods of conducting judicial review typically present the law's meaning as either rigid or elastic, inherently given, or subjectively projected. -- By examining proper modes of judicial review within the framework of a proper legal system as a whole—and more specifically, by identifying law’s function and authority—philosopher Tara Smith’s new book, Judicial Review in an Objective Legal System, seeks to break past this false alternative and chart a distinctive course for genuinely objective review that upholds the Rule of Law. -- Featuring: Prof. Tara A Smith, University of Texas and Prof. Gary S. Lawson, Philip S. Beck Professor of Law, Boston University School of Law.

Vanita Gupta, Principal Deputy Assistant Attorney General of the Department of Justice’s Civil Rights Division, delivered an address on criminal justice reform and policing. In announcing her arrival at the Department of Justice, Eric Holder praised Ms. Gupta, saying that “even as she has done trailblazing work as a civil rights lawyer, Vanita is also known as a unifier and consensus builder. She has a knack for bridging differences and building coalitions to drive progress.” This praise has been echoed by sources as diverse as National Rifle Association head David Keene, who told the Washington Post that Ms. Gupta “listens to and works with people from all perspectives to accomplish real good.” -- Featuring: Vanita Gupta, Principal Deputy Assistant Attorney General, Civil Rights Division, United States Department of Justice.

Iran is a highly stressed country, and an overwhelming majority of Iranians detest the regime, according to several polls and surveys (some by the regime). At the moment, thousands of teachers are protesting the arrest of seven leaders of their organization, women's protests are commonplace, and workers are on strike, having failed to be paid for several months. -- From time to time the contempt of the people has erupted into open revolt, most notably in mid-summer, 2009. Yet no Western leader has supported them in any way. Since Western interests would be substantially advanced if Iran were a free country instead of a fanatical anti-Western theocratic dictatorship, is it time for the U.S. to support these people and openly work for democratic regime change in Iran? -- Featuring: Dr. Michael Ledeen, Freedom Scholar, Foundation for Defense of Democracies and David B. Rivkin, Jr., Partner, Baker & Hostetler LLP.

In October of 2015, The Intercept, a website founded by Edward Snowden confidant Glenn Greenwald, unveiled "The Drone Papers," a series of stories based on secret documents provided by a new, anonymous leaker in the U.S. Government. Many in the media hailed the series, calling for congressional investigations and major changes in U.S. policy. -- Adam Klein, Council on Foreign Relations International Affairs Fellow and Visiting Fellow at the Center for a New American Security, discussed "The Drone Papers" -- what they are, what they reveal about U.S. operations, what claims they do and do not support, and the implications for counterterrorism law and policy. -- Featuring: Adam Klein, Visiting Fellow, Center for a New American Security.