On September 21st, William & Mary Law School kicked off its Supreme Court Preview with a live taping of the “First Mondays” podcast— becoming only the fourth law school in the country to host an on-site recording of the popular series.
Listen to the episode, “Looks a Lot like Grift" (broadcast on September 24).
The podcast is co-hosted by Professor Dan Epps of the Washington University School of Law in St. Louis and Professor Ian Samuel of the University of Indiana-Bloomington Law School. The duo recorded the episode at the Law School before a live audience of students and faculty and with the Law School’s own Professor James Y. Stern in the role of guest host.
“The Supreme Court Preview that we run is unique because of its focus on the Supreme Court press and so it seemed like a great opportunity for bringing in the ‘First Mondays’ crew,” said Professor Stern, who began brainstorming about the event six months ago.
The podcast, beloved by the legal community and averaging 30,000 downloads per episode, previewed noteworthy cases on the Supreme Court’s docket this fall in the episode recorded at the Law School. Professor Stern, who specializes in property law and intellectual property law, said the biggest property law case currently on the Supreme Court’s docket is Knick v. Township of Scott, Pennsylvania. At issue in the case is whether the Supreme Court should reconsider a prior decision requiring exhaustion of state remedies before being able to bring a Fifth Amendment takings claim in federal court, which has the practical effect of preventing those cases from being brought in federal court altogether. The discussion then moved to major criminal cases, including two death penalty cases — Madison v. Alabama and Bucklew v. Precythe — and how they will play out in the absence of Justice Anthony Kennedy, who retired from the court at the end of July.
“Kennedy was the player on these Eighth Amendment cases for a long time,” Samuel explained. He added that these two death penalty cases “really look like an uphill battle” for the defendants.
Both cases, as noted by Epps, deal with capital defendants with serious medical conditions and question their execution and methods of execution. In Madison, the defendant became mentally impaired following several strokes; he cannot remember his crime, creating the argument that it would be cruel and unusual punishment to execute someone who lacks a rational understanding of the crime committed. Epps theorized that it was the kind of argument that would have appealed very much to Justice Kennedy. In the latter case, a defendant has requested to be executed by lethal gas instead of lethal injection due to his rare medical condition.
While the number of people on death row is less than 3,000, and the two cases present rare situations, Epps said both matter “because we're making a larger statement about what our society permits” and it could be part of a “larger strategy to chip away at the death penalty bit by bit.”
The hosting trio also discussed Gamble v. United States, which could see the separate-sovereigns exception to the double jeopardy clause overturned, and other issues before the court in the coming term.
The professors’ discussion throughout the episode was tempered by the question of how a Supreme Court without Justice Kennedy will tackle cases. The hosts agreed a headline-grabbing blockbuster decision isn’t expected this term.
“The question [for the justices] is where do they want to go with the ‘new’ court and what areas would they like to get into that they haven't gotten into before. I don't think they themselves know,” Samuel said. “Right now, it does look like kind of a sleepy term.”
The “First Mondays” podcast airs weekly while the Supreme Court is in session and is available on several platforms including iTunes and Google Play.
Editor's Note: Professor Stern returned as guest co-host on "First Mondays' for the October 8 broadcast. Listen.
Thomas Jefferson founded William & Mary Law School in 1779 to train leaders for the new nation. Now in its third century, America's oldest law school continues its historic mission of educating citizen lawyers who are prepared both to lead and to serve.