Litigation Update: Wooden v. United States

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Guy DeSanctis:  Welcome to The Federalist Society’s webinar call. Today, March 9, we discuss a litigation update, Wooden v. United States. My name is Guy DeSanctis, and I’m Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today’s call.

 

      Today we are fortunate to have with us Vikrant Reddy, Senior Research Fellow, Charles Koch Institute. Throughout the panel, if you have any questions, please submit them through the question-and-answer feature so that our speaker and I will have access to them for when we get to that portion of the webinar. With that, thank you for being here with us today. Vikrant, the floor is yours.

 

Vikrant Reddy:  Thanks, Guy. It’s a treat to be invited to do this by The Federalist Society. I want to say thanks to the FedSoc and thanks to the criminal law practice group, my executive committee which I sit on. It’s always a delight to do these.

 

      This case, Wooden v. United States, I think will enter the pantheon of cases that help us understand why people are so irritated by lawyers. Because it’s one of these cases where the answer is incredibly obvious. Every single person would get the answer immediately. And in fact, the case went 9-0. But it’s the reasoning that gets very complicated. And there are a lot of different opinions that battle back and forth about how exactly you get to that answer. I think the average person would say, “Well who cares. We all know what the answer is.” But of course, lawyers and judges can’t do that. We’ve got to come up with really precise reasoning so that we set a precedent that we can use in the future. That was a little harder to do in this case. But we’ll talk through the opinions and what was eventually decided on.

 

      So the case involves a man named Dale Wooden who, in 1997 in Dalton, Georgia, broke into a storage unit and robbed it. Then he took a hammer, and he smashed through the drywall of the storage unit. He entered the storage unit next door, and he robbed that one. Then he took the hammer again. He smashed through the drywall, and he entered the third unit. He robbed that one. And he does this such that he ends up robbing 10 storage units in total. And in fact, he pleads guilty to 10 counts of burglary because he stole from all 10 of these units.

 

      Now before we get into the law here, I just want to ask everybody on the call to think through, if 17 years went by, how you would describe that story. I feel confident that the people on this call would probably say something like, “You won’t believe what Dale Wooden did one crazy night,” “You won’t believe this unbelievable thing that happened to Dale Wooden once,” or that he did once. Or “Let me tell you about something that Dale Wooden did 17 years ago.” You would keep using the language of this one time or something happened once, or this thing happened. I do not think that anybody on the call would say something to the effect of, “Over the course of the last 17 years, Dale Wooden has committed 10 robberies.”

 

      Now you’d be technically correct in saying that. This one night that all these things happened is a unit within a broader 17-year period. And he did rob these 10 storage units. In fact, he even pleaded guilty 10 times or on 10 different counts. So it would be technically correct, but somehow that’s just not the way we talk. That’s, maybe even more importantly, not the way we think. We just don’t process that event in that way.

 

      Now why does that little linguistic digression matter? It matters because 17 years later, a police officer entered Dale Wooden’s trailer, and he found a firearm laying around. And Wooden was a felon who should not have had that firearm and was subject to penalty. But we’ve got a statute, The Armed Career Criminal Act, that says that if Dale Wooden is a “career criminal,” the penalty is greatly enhanced. And the statute says that if he has — let me get this language correct — if he has "committed these offences on occasions different from one another" -- three or more times on occasions different from one another, then he’s a career criminal. And he’s subject to a penalty in this particular case — well, in any case — a minimum penalty of 15 years. Which in this particular case would have been about 13 years longer than what the probation officer was recommending. That’s an extraordinary difference. A 13-year sentence difference if he is a career criminal.  

 

      Now again in ordinary language, we don’t think of this night where he robbed all these storage units as making him a “career criminal.” Although they did happen, in a sense, on separate occasions. At least, that’s the sense that was argued by the prosecutors. That was an argument that was accepted by the district court. That was the argument that was again accepted by the appellate court, the Sixth Circuit. And it went up to The Supreme Court to really take a close look at the question of what an occasion is and whether or not, in this case, Dale Wooden had committed a robbery on 10 separate occasions or whether or not all of this happened on one occasion.

 

      Justice Kagan wrote the opinion. She had two arguments. The first argument, the one that really won the day with everyone, was simply the argument that I made earlier. Which is that this is not the way normal people talk. It’s not even the way normal lawyers talk. This is not the way that we talk or think or process an event like this. This is quite obviously one occasion. It was something that happened once. It’s not the kind of thing that would render somebody in our minds a “career criminal.” And so the 15 year penalty would be just needlessly harsh, and it was more appropriate to look at the kinds of penalties that were recommended by the probation officer.

 

      She did give a separate argument, one that was based on legislative history. There’s kind of a side debate involved there because Justice Barrett, joined by Justice Thomas, criticized that line of reasoning. And these kinds of debates will be familiar to most Federalist Society audiences especially those who are familiar with Justice Scalia’s critiques of legislative history. Justice Barrett and Justice Thomas just felt that that’s not really the right way to analyze a case like this. They were more comfortable with just the sense of how do ordinary people think through this.

 

      Now on the other hand, for those who work in criminal law, things get a little bit interesting when you get into a couple of other separate opinions. The first that’s worth talking about is an opinion by Justice Gorsuch that was joined by Justice Sotomayor. And it’s always really interesting, on a side note, when you get one of these Gorsuch-Sotomayor concurrences or descents. They’re coming from time to time in cases that involve civil liberties. And I think they’re really emerging as kind of a civil libertarian bastion on the Court in a lot of ways, and they did so here also.

 

      Justice Gorsuch and Sotomayor agreed with the reasoning in Justice Kagan’s opinion, that that’s just not the way ordinary people process things like this. On the other hand, they said, “There’s an easier way to go about doing this case rather than diving into the psychology of how people think and process language, is simply apply the rule of lenity.” They argue that the rule of lenity is this very basic canon of construction that goes back hundreds of years. It’s older than the United States itself. It goes back to Blackstone at least. It’s something that we probably don’t apply enough.

 

      The rule of lenity is a canon of construction that says that whenever you’ve got an ambiguous criminal statute, you just can’t quite figure it out. It could go this way, it could go that way. It’s really 50-50. The tie goes not to the government but to the person who’s going up against the government. And it’s just a basic rule for, ultimately, the protection of liberty. And the idea is that, if you have a rule like this, the burden is really on the government to get the drafting of statutes right -- get the statutes written in such a way that obviously protect public safety as they must but do their best to also ensure and protect individual liberties. And, if you’ve got a statute that doesn’t quite hit that balance, tie goes to the defendant. It’s a very basic and very old canon of construction and one that Gorsuch and Sotomayor thought we ought to use here.

 

      Now Justice Kavanaugh actually wrote himself to take on this rule of lenity question because he pointed out that the rule of lenity is used very infrequently for fairly good reason. He said, “It is generally thought to be a last resort.” You try all sorts of different canons of construction, all sorts of different statutory interpretation methods, and only if you’ve exhausted all other possibilities, you apply something like this rule of lenity tie-goes-to-the-runner kind of rule. And he worried that as Gorsuch and Sotomayor were contemplating it, we would start applying the rule of lenity earlier in the process rather than as a last resort.

 

      There are arguments incidentally for doing that. There is a recent law review article by Shon Hopwood professor of law at Georgetown, about using the rule of lenity a bit earlier in the process rather than as a last resort, which I do recommend to everybody on the call who’s interested in these issues. But Kavanaugh said he wouldn’t go that rule of lenity route, and he’s also not necessarily sure although he completely agrees with the ordinary language argument. He’s not sure that was the best way to get to the result in this case. What he was looking for was a revival of mens rea.

 

      Everybody knows that, in criminal law, you don’t have a crime unless you have both the actus reus and the mens rea. The actus reus is just simply whether or not the bad event happened. But the mens rea is whether or not you have the bad mental state of mind. If you don’t have the correct state of mind, then you’ve really just got an accident rather than a crime. There are different levels of course. You could do something purposefully. You could do something knowledgably. You could do something recklessly. You could do something negligently. There are different ways to think through mens rea. It’s a complicated issue. It’s not necessarily open and shut. But mens rea is what makes something a crime rather than a tort. And it’s a really critical part of our law that in a variety of ways has probably eroded.

 

      And Kavanaugh was trying to really get this issue on the table saying, “You have the case here where this person clearly did not understand, did not realize, did not know, did not have the mens rea, did not know that he, under certain interpretations of the law, had committed robbery on 10 different occasions and therefore was subject to this dramatically enhanced penalty.” We don’t really apply mens rea in that way. Our judges don’t tend to, but maybe they should. Maybe that’s the kind of thing we ought to be thinking about. Maybe that’s the sort of revival of mens rea that would add a little bit of clarity and in some ways decency to our criminal law.

 

      So there’re very interesting arguments here where Justice Kagan and the Court in general is pursuing this ordinary language argument. Justice Gorsuch and Sotomayor are raising this rule of lenity argument. Justice Kavanaugh is raising this mens rea argument. There’s also the side question about how do you rely on legislative history for things like this, which Justice Barrett and Thomas are concerned about. And overall, the outcome of the case is quite clear. I don’t think anybody would really doubt it, but it’s an absolutely fascinating case to think through legal reasoning and the process of legal reasoning. It’s the kind of thing that I suspect we will see in syllabi for many years to come because it’s just great for teaching law students.      

 

      Before I close though, I want to talk about what happens as you read through the opinion which is — all in all it’s 43 pages. You get to the very last word, which is Gorsuch’s concurrence, and you get to a final footnote. You read this footnote, and you see that Gorsuch is laying the seed for what he believes will be a very significant issue to come in the future. What Gorsuch is talking about in this final footnote, is the question of acquitted conduct, which people who follow criminal law and the Court very closely have probably had their eye on for many years. In this case -- or maybe I should go back and say, under the Fifth and Sixth Amendments, a jury has got to find beyond a reasonable doubt all the elements that led to a defendant’s ultimate sentencing. But in this case the question of what constituted an occasion was not something that was decided by a jury, it was something that was decided by a judge during the sentencing phase -- was just trying to figure out how to define that term in the statute. But it mattered. It wasn’t just some minor side issue. It was the difference between, as we talked about, 2 years or 15 years in prison.

 

      And it’s another one of these cases where the judge is making decisions using a preponderance of the evidence standard during the sentencing phase that matter to the ultimate sentencing of the defendant. And it’s probably — possibly, maybe I should say then, be careful here — unconstitutional. It’s certainly worth an argument. And a number of people have raised these questions because you’ve got all kinds of cases where people have been -- really kind of the iconic way this works is people have been acquitted of some particular charge because of various procedural matters, but then when you get to the sentencing phase, you’ve got a judge who knows about the conduct that they were acquitted on and can nevertheless factor it in to the ultimate sentence.

 

      And this question of whether or not this is constitutional is almost certainly going to come before the Court. These kinds of cases get filed frequently. They haven’t taken a case yet, but Gorsuch says that one of these is almost certainly coming up. I’ve talked to other federal judges who say, “Yeah. This is inevitable.” It’s just a question when the perfect case comes before the Court that they ultimately decide to take up.

 

      So that’s Wooden, and that’s what’s to come in the future according to Justic Gorsuch and many other Court followers. At this point Guy, I think it’d be great to just take a few questions from the Teleforum audience.

 

Guy DeSanctis:  Yes. As a reminder, feel free to submit any questions you have through the Q and A feature. It looks like we haven’t received any yet. So do you have anything you’d like to expand on in the meantime?

 

Vikrant Reddy:  I’ll take a moment to talk about a small tiff among the opinions that I thought was kind of funny. Kavanaugh and Gorsuch are kind of going back and forth on this question of the rule of lenity. And I think Kavanaugh makes the argument that you really only apply the rule of lenity if the statute in question is — what’s the right language here — grievously ambiguous. And he says -- you’ll notice that that is the language he used. It must be grievously ambiguous. And we’ve used it in case after case after case. And he actually has three opinions that he cites. But then Gorsuch says all three of the opinions that you cited are just in the last seven years. I don’t necessarily know that you can make an argument about grievously ambiguous being the standard that goes back decades or centuries or anything like that. This is something that we made up very recently. The debate between the two of them is really, really terrific. It is just really fascinating to see the two of them think through this rule of lenity question which I think is really, really important for folks who are practicing criminal lawyers.

 

Guy DeSanctis:  And we’ve received some questions now. The first one is, “Justice Gorsuch said that the rule of lenity should apply to civil cases too. Any comment on that aspect?”

 

Vikrant Reddy:  Yeah. That is a really interesting battle. I’ve seen some professors make this argument in a few law review articles. I’m just speaking for myself. I could be convinced. But traditionally that is not what we have done with the rule of lenity. That has been something that is applied to criminal cases, criminal cases alone because these are situations where you have the individual going up against the awesome overwhelming might of the government. And, in those kinds of cases, it’s very clear, I think, as a cultural matter in Anglo-American culture, Anglo-American jurisprudence, that we would want the tie to go to the defendant, not the government in those kinds of cases.

 

      So it really is something that we’ve always reserved to the criminal law. I tend to be a bit of an originalist I guess the way that I think about these things. And so I would reserve it for the criminal law for now. I’m open to arguments about why it would be appropriate in a civil context, but it tends to be a criminal law thing, and I’m good with that.

 

Guy DeSanctis:  Yes. Thank you for that question. The next one is, “It seems like the Supreme Court has been engaged, in a roundabout way, of criminal justice reform by reducing the force and impact of mandatory minimum penalties like 15-year penalty for the Armed Career Criminal Act. Do you see this trend continuing?

 

Vikrant Reddy:  I don’t know if I would say they’ve been involved in criminal justice reform. That’s an interesting way of putting it. I guess what I would say is this, we had a period in the late ‘60s, ‘70s, ‘80s, early ‘90s where crime was incredibly high in this country. We’ve had some significant and notable crime increases in the last two years — should not be ignored. There are those who are ignoring them. We shouldn’t do that. But even though we’ve had these crime increases, people who lived through those days in the ‘70s, ‘80s, and early ‘90s know that it’s nothing like it was then. I mean, it really was quite an extraordinary time and quite a tragic time. It’s not like that right now.

 

      But it’s interesting to reflect on those years, those decades and what came out of that. Statutes like the Armed Career Criminal Act came out of that culture. They came out of a world in which fears about crime were so acute, it was regularly the number one thing that people said they worried about during elections. That you saw all kinds of criminal reforms come forward that were I guess you could say, pro-government and anti-defendant, right, in a variety of ways. So you saw, in a lot of cases, things like parole would be abolished. You saw things like mandatory minimum sentencing. You’d see things like the sentencing enhancements with the Armed Career Criminal Act. And these kinds of things were developed in a different era. We don’t live in that time now. And I do think that you see a variety of institutional actors looking at the statutes that were written during that time and wondering whether or not maybe they went too far, whether or not they still apply in the year 2022.

 

      This is why a lot of-- in the Legislative Branch, a lot of legislators are going and reviewing some of those laws and changing them. This is why, in the Executive Branch — I’m a little less comfortable with this, but you do see prosecutors exercising prosecutorial discretion in various ways to not enforce certain kinds of laws. There’s an entire Teleforum to be done on the legitimacy of those acts by the way. But for the time being, let’s just acknowledge that it’s happening.

 

      And then finally, in the judiciary, you’ve got cases where judges are saying, “Yeah. We have a role here too. We can, in cases where something is sort of ambiguous, we can choose a kind of — what’s the right way to say this? Well, we can treat criminal defendants one way or another way under our constitution and under the -- under most of the Bill of Rights.”

 

      There’s a certain -- I mean, I think Justice Scalia would have called it a kind of pro-defendant or anti-government ethos that comes out of the Bill of Rights there that we can apply that maybe we failed to apply in the ‘70s, ‘80s, and early ‘90s when we were so concerned about crime, and we’ll find a way to revive that. Some of that is happening. You do see some of that happening in the courts, but I’m not sure I would call it a trend. You get a lot of that from Sotomayor. You and get a lot of it from Gorsuch, so it’s bipartisan. But Gorsuch and Sotomayor are just two members of a nine-person court. I’m not really sure that you’re seeing a big trend among all the justices on the high court or certainly among the federal judiciary at large to do that kind of thing. It’s a great question though.

 

Guy DeSanctis:  Yes. Thank you for that question and answer. Our next one is, “In the wake of the flurry of hastily drafted emergency Covid health orders, would the same possibilities for lenity and mens rea standards apply for criminal charges brought for noncompliance?”

 

Vikrant Reddy:  I would -- I would apply them that way. Yes. I mean, I actually think this is -- I don’t know who asked this question, but it’s fantastic. And it’s the kind of thing that I thought about a lot over the last two years. I live in Washington D.C., and I have to be honest, I did not really -- I did not read the mask guidance very closely every morning. It would change, right, from week-to-week, month-to-month, where the masks were required, where they weren’t required, indoors, outdoors, in these kinds of venues, not these kinds of venues, whether you had them in school or not. I just sort of sensed as a cultural matter that everybody in Washington wears these things, I’m just not going to rock the boat. And I’ll just wear this stuff when I go into the grocery store, whatever.

 

      But it occurred to me that most normal people were probably doing what I was doing. They didn’t wake up every morning and quickly check what the mask mandate rules were before they went about their day. So the idea that you would be enforcing criminal laws against them seemed just completely unreasonable. And, in those kinds of situations, I think I would have applied the rule of lenity. And I think that’s actually a really great example of a -- of a kind of real time way that something like that would work involving something that’s in the news right now that I think most people would agree is just kind of common sense. I don’t know that I would throw the book at people who didn’t wear their mask because they didn’t read the latest ordinance that morning.

 

Guy DeSanctis:  Thank you for that question. Our next one is, “Would an expansion of the mens rea argument risk more statutes being written that are strict liability in nature?”

 

Vikrant Reddy:  Well, I guess that depends on how you do the mens rea because there are different levels of mens rea. You can have strict liability crimes. Of course, you can also have crimes where you apply a different kind of mens rea. I guess what it comes down to -- if you -- I can’t get inside Justice Kavanaugh’s head, but I have a sense based on the academic commentary here and the advocacy commentary. This is a very big issue in the advocacy community.

 

      I know that The Heritage Foundation recently published a big report on mens rea. Actually, they republished -- updated a very important report from about a decade ago. The bottom line is that, for the people who are concerned about mens rea, they just want mens rea put into statutes more often than it is right now. We used to include the actus reus and the mens rea all the time. But The Heritage Foundation has gone through and just counted the statutes, at least at the congressional level, that simply don’t include it. And it really blows your mind that Congress puts the actus reus in and then just leaves the mens rea out and leaves it to judges to just kind of figure out on the fly. That’s not how you’re supposed to be doing the drafting of statutes. So just putting the mens rea in and forcing Congress to think seriously about what exactly is the level of mens rea that you would like here would be really useful.

 

      At a bare minimum, if Congress is not going to do that, we could start passing default mens rea statutes. I know that some states have done this. I was involved in some work in Ohio about six years or so ago to pass a default mens rea standard so that if the legislator falls down on the job, as tends to happen from time to time, and they don’t include a mens rea in the statute, the judge has actually got some guidance. They can say, “Okay. Well, they didn’t put one in here, but I know what the default is because we’ve passed this separate statute. And I’ll just apply that.” I like solutions like that because they involve less judicial discretion. You’re actually relying on something that came from a legislature which is ultimately accountable to the people. That’s a -- as much as possible you want to do that kind of thing.

 

Guy DeSanctis:  Thank you for that. This next question is slightly longer. “It seems concerning that our laws would be tailored to the culture at a particular time. Isn’t law supposed to be more absolute than that? If the culture of one area differs from that of another, should laws governing those areas vary? How do we appropriately distinguish without discriminating one such culture from another?”

 

Vikrant Reddy:  That’s really an outstanding and very deep question, I think. This is probably why so many people in The Federalist Society would classify themselves as originalists — certainly not all of us, but many of us do. I’m one of them. It’s probably because of the kinds of concerns that are at the root of this question. That the tide changes from moment to moment, that somebody who is a hero one day becomes a villain the next one. The cultures change very, very quickly especially nowadays. In the days of the rapid communication environment of the internet, things change a lot and what you want is a kind of bulwark of principles that you can fall back on. And a pretty good bulwark, for my money, is the Constitution and is the classical liberal principles that are inherent in the Constitution and the Bill of Rights. And I think that if you’re an originalist, you’re in a position to, as much as possible, really rely on that framework.

 

      It doesn’t mean that it can’t ever, ever, ever be changed. It can be changed, but you have to go through a very rigorous process. Obviously, it’s very difficult to amend the Constitution. And you have ultimately a -- I think kind of a solid oak framework by relying on the classical liberalism that’s inherent in the Constitution.

 

      But it is a concern that, with our criminal law, we talk about things like having a Warren court that was unusually pro-defendant. And then, not having a Warren court culture where we became more pro-government. And you kind of went back and forth, back and forth. I think ultimately, you want to try and stick to a classical liberal framework, and that is the Constitution and the Bill of Rights.

 

Guy DeSanctis:  Thank you for that question. This next one I think relates to something we were discussing earlier. It asks, “Do you think the outcome would have been different had the defendant committed 10 acts of robbery against 10 persons in a store on one occasion? I realize it is hypothetical, but society seems to look at property crimes and personal crimes in hindsight quite differently.”

 

Vikrant Reddy:  I don’t think so. And the reason I say that, is that -- I won’t remember all the details of this, but this actually comes up a little bit in the second part of the Kagan opinion where she digs into legislative history. There was a case that I won’t remember all the details of, but basically it was a stick up. And it involved six people — six victims actually that the gun was wielded at. And the question was whether or not you thought of that as six different muggings or as one mugging.

 

      And, as I recall, there was an effort, at least arguably, an effort by Congress to adjust the statute to think in terms of episodes. That was the language that was used to try and clarify the occasions term. And Justice Kagan has a long argument you can read in section 2B of her opinion where she goes through the legislative history and why she thought what Congress was doing was really explicitly trying to respond to this case involving this mugging. And, like I said in my original presentation, Justice Barrett says, “Well I’m not really sure that you know what Congress had in mind or what they were relying to -- what they were relying on whenever they adopted this episode language.”

 

      So that’s an interesting kind of statutory interpretation question. But, to get back to what our questioner asked, no, you really actually have an example on point here where it was people rather than storage units. And you still had this occasions question or instances or episodes or whatever language you want to use in mind. And ultimately, people seemed to think that that was one occasion, not multiple occasions.

 

Guy DeSanctis:  Thank you for that. And I think this next question is asking about it in terms of the difference between robbery versus burglary. It doesn’t expand beyond that, but I think that’s what he was asking.

 

Vikrant Reddy:  Yeah. That’s that old bar exam stuff, right? That we have to -- what are the elements of burglary? Breaking and entering of a dwelling at night. And you have to memorize all those kinds of things. I don’t recall whether the specific crime here was burglary or robbery. I probably used the terms too cavalierly during my presentation. But what is most important is that they were classified as violent crimes under the Armed Career Criminal Act. And what he did that night was classified as a violent crime and therefore left him potentially subject to the penalty enhancement under the Armed Career Criminal Act. And it was why he wasn’t permitted to have a firearm in the first place because he was on the record a violent felon.

 

Guy DeSanctis:  Well, it doesn’t appear that we have any more questions right now. Do you have any closing comments you’d like to make?

 

Vikrant Reddy:  Probably going back to the questioner who asked about legal culture at particular times. I thought that was a really -- or talking about how our law kind of stems from whatever our culture is at a particular time and how that’s probably not appropriate. I thought that was a neat question. I thought that was something worth thinking about. It is interesting how we do have a big criminal justice reform movement in the country right now. We have those who are opposed to the criminal justice reform movement in a variety of ways. I think that I’m generally supportive. But more broadly, my take on it is that there is a kind of classical liberal culture inherent in the Constitution and the Bill of Rights that prescribes a certain way to think about criminal law and criminal defendants and their rights and the rights of individuals. And to the extent that we’ve drifted away from that way of thinking, I think it would be worthwhile to go back to it. And I think in a variety of cases that he wrote over the years that maybe surprised some people, Justice Scalia said much the same thing.

 

Guy DeSanctis:  Well, thank you for that. I think I’ll wrap up. And yeah, we don’t have any more questions, but thank you. On behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today, and I want to thank our audience for joining and participating. We also welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming virtual events. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.