WEBVTT - Supreme Court Reverses Trend on Juvenile Justice 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.640 --> 0:00:12.720 A divided Supreme Court has made it easier to sendence 0:00:12.800 --> 0:00:16.280 minors convicted of murder to life in prison without parole. 0:00:16.920 --> 0:00:19.600 It is six to three decision that split the jostices 0:00:19.640 --> 0:00:23.200 along ideological lines. The courts that are judge does not 0:00:23.360 --> 0:00:26.920 have to find a minor to be permanently incorrigible or 0:00:26.960 --> 0:00:30.880 incapable of being rehabilitated before imposing a sentence of life 0:00:30.880 --> 0:00:34.520 without parole. The ruling follows more than a decade where 0:00:34.560 --> 0:00:37.960 the Court had moved toward more leniency from minors convicted 0:00:38.000 --> 0:00:41.440 of murder, treating them differently from adults. Joining me as 0:00:41.479 --> 0:00:44.720 Bloomberg Law reported Jordan Reuben Jordan tell us about the 0:00:44.760 --> 0:00:50.160 defendant in this case. Brett Jones was convicted of murder 0:00:50.560 --> 0:00:52.640 for a crime that he committed when he was fifteen 0:00:52.720 --> 0:00:56.840 years old. He fatally stabbed his grandfather during an argument 0:00:56.880 --> 0:01:01.080 at home, and he was initially sentenced to life without 0:01:01.120 --> 0:01:04.360 the possibility of parole, and his case called into question 0:01:04.400 --> 0:01:09.000 this line of Supreme Court precedents going back years, and 0:01:09.120 --> 0:01:13.760 the Court wound upholding in a previous decision that mandatory 0:01:13.880 --> 0:01:17.440 life without parole sentences for juveniles are unconstitutional, and so 0:01:17.520 --> 0:01:21.120 that raised further appeals in Jones's case, where the Supreme 0:01:21.120 --> 0:01:24.440 Court had to sort out what exactly is required of 0:01:24.520 --> 0:01:27.880 judges when they're handing down these life without parole sentences 0:01:27.880 --> 0:01:31.880 to juveniles in these discretionary schemes. Did a judge review 0:01:31.959 --> 0:01:34.920 his sentence after he was in prison? That's right, the 0:01:35.000 --> 0:01:37.959 judge did do that. However, the judge did not make 0:01:38.080 --> 0:01:42.680 a finding that Jones was quote permanently incorrigible end quote, 0:01:42.680 --> 0:01:44.600 which is some language that had been in some of 0:01:44.600 --> 0:01:47.960 these prior Supreme Court decisions. And he argued that that's 0:01:48.040 --> 0:01:52.440 required before a judge makes a finding that a person 0:01:52.520 --> 0:01:54.640 who was a minor when they committed the crime can 0:01:54.640 --> 0:01:57.840 be sentenced to life without the possibility of parole. So 0:01:57.960 --> 0:02:01.120 what did the Supreme Court rule? The stream Court said 0:02:01.120 --> 0:02:04.400 that that is actually not required by those precedents, and 0:02:04.480 --> 0:02:08.560 that all these prior precedents require is that a statutory 0:02:08.680 --> 0:02:13.880 scheme is that a state's scheme be discretionary, and so 0:02:13.880 --> 0:02:18.040 so long as it's not a mandatory scheme, then that 0:02:18.280 --> 0:02:22.480 is enough under the Constitution. And so this was a 0:02:22.600 --> 0:02:27.079 six to three split tell us about the split right. 0:02:27.160 --> 0:02:30.240 This one split right along party lines. That was a 0:02:30.280 --> 0:02:34.400 decision written by Justice Kavanaugh, and he was joined by 0:02:34.440 --> 0:02:38.520 the other five Republican appointees and the three remaining Democratic 0:02:38.520 --> 0:02:43.760 appointees were in descent. And that's not super unusual in 0:02:43.800 --> 0:02:47.919 these types of cases under the Eighth Amendment. We've seen 0:02:48.000 --> 0:02:51.600 these types of divides before in these cases, and so 0:02:51.680 --> 0:02:56.040 this is continuing that pattern. So Justice Soda Mayor wrote 0:02:56.040 --> 0:03:00.640 the descent, and she said that the majority opinion guts precedent. 0:03:00.720 --> 0:03:04.520 Explain what she meant. So Justice so dom Oral looks 0:03:04.520 --> 0:03:06.840 back at those precedents and said that in order for 0:03:06.880 --> 0:03:09.960 the majority to make this ruling, that a permanent and 0:03:09.960 --> 0:03:13.040 corigibility finding is not required, that a factual finding is 0:03:13.080 --> 0:03:15.720 not required. In order to reach that result, the majority 0:03:15.720 --> 0:03:18.640 really had to contort precedent to a point where, in 0:03:18.639 --> 0:03:21.880 her words, they were gutting precedent without admitting it and 0:03:21.919 --> 0:03:25.840 rewriting those prior precedents in the process without admitting it. 0:03:25.919 --> 0:03:28.720 That was the descents view. The Court in the past 0:03:28.840 --> 0:03:34.080 has treated juveniles more leniently in violent crimes because of 0:03:34.120 --> 0:03:38.720 their lack of maturity. Tell us about that history. So 0:03:39.520 --> 0:03:42.520 there's been a series of decisions where one decision after 0:03:42.560 --> 0:03:47.040 the other, the Court, in a progression, really kept handing 0:03:47.040 --> 0:03:50.680 down rulings that were more and more favorable to people 0:03:50.680 --> 0:03:53.360 who committed crimes when they were miners. Although that was 0:03:53.440 --> 0:03:56.720 back when Justice Kennedy was still on the court before 0:03:56.720 --> 0:04:01.240 he retired and was replaced by Justice Kavanaugh. So this 0:04:01.320 --> 0:04:04.480 case really marked a halt to that progression, is one 0:04:04.480 --> 0:04:07.360 way to look at it. And it's obvious why that happened. 0:04:07.360 --> 0:04:10.200 It's because of the change in personnel on the court 0:04:10.360 --> 0:04:14.640 since those prior rulings were handed down. Explain how this 0:04:14.720 --> 0:04:19.120 case highlights the divide on the Court when it comes 0:04:19.160 --> 0:04:24.799 to the Eighth Amendment and cruel and unusual punishment cases. So, 0:04:24.920 --> 0:04:26.720 I think what we've seen in a lot of these 0:04:26.839 --> 0:04:30.279 Eighth Amendment cases, which is the backdrop for this cruel 0:04:30.279 --> 0:04:33.960 and unusual punishment, that's what the Eighth Amendment prohibits. However, 0:04:34.000 --> 0:04:36.960 there are pretty stark disagreements over what exactly that means. 0:04:37.080 --> 0:04:39.479 The same sort of divide that we've seen in death 0:04:39.480 --> 0:04:43.640 penalty cases, which are also Eighth Amendment cases. Issues that 0:04:43.680 --> 0:04:47.039 are implicated there, and so we see that same divide, 0:04:47.080 --> 0:04:50.840 and so this case is an example of really what 0:04:51.040 --> 0:04:55.000 the Republican appointees have seen as required under the Eighth 0:04:55.040 --> 0:04:58.760 Amendment as opposed to what the Democratic appointees have seen 0:04:59.120 --> 0:05:01.960 as required. And this case is really a perfect reflection 0:05:02.279 --> 0:05:05.159 of that split. I was surprised the United States is 0:05:05.200 --> 0:05:10.719 the only country that allows juveniles to be given life 0:05:10.720 --> 0:05:14.920 without parole. That's right. We're an outlier in the world, again, 0:05:15.000 --> 0:05:18.000 similar to the death penalty, where we're not the only one, 0:05:18.080 --> 0:05:21.240 but certainly in the minority of countries, certainly in so 0:05:21.320 --> 0:05:24.360 called developed nations that have it. And so this is 0:05:24.400 --> 0:05:29.280 another criminal justice aspect of our country where we're an 0:05:29.279 --> 0:05:31.800 outlier compared to the rest of the world, certainly the 0:05:31.880 --> 0:05:35.480 so called developed world. And what about the States? Where 0:05:35.480 --> 0:05:39.080 do the States stand on this issue? Right? So that's 0:05:39.080 --> 0:05:41.520 a very good question, June. I'm glad you asked, because, 0:05:41.760 --> 0:05:44.839 as in a lot of criminal justice spaces, we're seeing 0:05:44.839 --> 0:05:48.279 more attention being put on the state, especially where reformers 0:05:48.320 --> 0:05:50.800 are not seeing success at the Supreme Court, and so 0:05:51.160 --> 0:05:53.680 they've been making a stride there in their view in 0:05:53.760 --> 0:05:56.960 order to either curtail or ban the use of, for example, 0:05:57.600 --> 0:06:01.400 life without parole for juvenile offenders. And so as it 0:06:01.440 --> 0:06:03.880 stands down. More than half the state's either ban the 0:06:03.920 --> 0:06:07.320 practice or don't have anyone serving these types of sentences, 0:06:07.360 --> 0:06:11.559 And that's really where reformers are focusing their energy now 0:06:11.720 --> 0:06:15.520 is on the states. Jordan. The Court often takes cases 0:06:15.720 --> 0:06:18.159 when there's a split in the circuits. Was there a 0:06:18.160 --> 0:06:21.920 split in the circuits here? So they definitely took it 0:06:21.960 --> 0:06:26.200 in order to try and explain really these prior precedents, 0:06:26.279 --> 0:06:30.760 because it was not clear what exactly they meant in 0:06:30.880 --> 0:06:34.560 terms of what exactly was required. As Jones's case showed 0:06:34.600 --> 0:06:37.719 so fair at least, it was an incredibly important issue 0:06:37.760 --> 0:06:40.280 that the Court felt the need to explain, and there 0:06:40.279 --> 0:06:43.320 really could be still more left to explain. Although in 0:06:43.320 --> 0:06:46.560 this case the Court said judges don't need to make 0:06:46.680 --> 0:06:50.520 this certain finding. Perhaps we could see future cases falling 0:06:50.560 --> 0:06:52.919 somewhere in the middle between a judge saying nothing and 0:06:52.960 --> 0:06:56.480 a judge making this permanent and corige ability finding. There 0:06:56.480 --> 0:06:59.479 could still be a lingering question of what exactly do 0:06:59.839 --> 0:07:02.640 or do not judges have to do. So there's no 0:07:02.800 --> 0:07:05.000 rule right now, or does it depend on the states 0:07:05.080 --> 0:07:07.800 as to what a judge has to find in order 0:07:07.839 --> 0:07:12.680 to put a juvenile in prison for life. So it 0:07:12.840 --> 0:07:15.600 is it is clear now under the Supreme Court's latest 0:07:15.600 --> 0:07:18.840 decision in Jones's case, what's not required. A judge does 0:07:18.880 --> 0:07:22.880 not specifically have to say, I find this person to 0:07:23.000 --> 0:07:27.480 be permanently incorrigible. It's enough, according to this latest decision, 0:07:27.720 --> 0:07:30.680 for there to have been discretion for the judge to 0:07:30.720 --> 0:07:36.560 have considered youth as midgaining factor under those prior precedents. 0:07:37.040 --> 0:07:41.840 There just could potentially be another case delving further into 0:07:42.000 --> 0:07:46.080 perhaps there's an unclear situation of whether a judge made 0:07:46.080 --> 0:07:50.000 this consideration or not, because we have this pretty bright 0:07:50.120 --> 0:07:52.600 line rule from the Supreme Court now, So there could 0:07:52.600 --> 0:07:55.800 still be further challenges. But as I said, I really 0:07:55.800 --> 0:07:59.200 think the focus for people making these challenges is going 0:07:59.240 --> 0:08:02.200 to be more so putting their energy into the state 0:08:02.280 --> 0:08:05.720 level then necessarily hoping for success at the Supreme Court, 0:08:05.760 --> 0:08:09.040 at least as it's constructed now. I was struck in 0:08:09.120 --> 0:08:13.280 your story. You spoke to John Neeman, who had argued 0:08:13.280 --> 0:08:15.520 for the state in the Miller case when he was 0:08:15.560 --> 0:08:19.920 Alabama Solicitor General, and he said, we're all capable of redemption. 0:08:20.120 --> 0:08:22.080 I thought that was interesting because as he was on 0:08:22.120 --> 0:08:24.200 the other side of it, right and so I think 0:08:24.280 --> 0:08:28.560 ultimately he agreed with this decision. In the Jones case, 0:08:28.600 --> 0:08:33.320 he was raising an interesting point where this permanent incorrigibility standard, 0:08:33.400 --> 0:08:35.640 and it wasn't taken out of tanair, it was taken 0:08:35.679 --> 0:08:40.240 from prior precedence what Jones was arguing for. It raises 0:08:40.320 --> 0:08:43.240 interesting questions of what exactly is a judge doing when 0:08:43.240 --> 0:08:46.959 they're making this finding, Because the point that Mr Neeman 0:08:47.080 --> 0:08:50.280 was raising was if you're a person who finds that 0:08:50.440 --> 0:08:53.559 no one is beyond redemption, then it would be impossible 0:08:53.920 --> 0:08:57.640 for a judge to make this finding against a defendant. 0:08:57.800 --> 0:09:00.760 So that could be part of what was animating the 0:09:00.800 --> 0:09:04.800 majority's concerned here in the Jones case that if that's 0:09:04.840 --> 0:09:08.679 the rule, and then it ties the judge's hands. In effect, 0:09:08.720 --> 0:09:11.880 they have to say, I believe this person is beyond 0:09:12.000 --> 0:09:16.920 redemption and that's something that can cross different ideological and 0:09:17.240 --> 0:09:20.760 religious lines, what have you. And so it could be 0:09:20.800 --> 0:09:22.880 just a matter of the court saying we don't want 0:09:23.000 --> 0:09:26.959 judges to get into that specific type of business. So, now, 0:09:27.000 --> 0:09:31.160 as far as Jones is concerned, does he have any 0:09:31.320 --> 0:09:34.040 avenues left? Does he get to go back to the 0:09:34.120 --> 0:09:36.120 judge and say anything, or is this the end of 0:09:36.120 --> 0:09:38.200 the road. So I think it is the end of 0:09:38.240 --> 0:09:41.480 the road in Justice Kavanaugh's opinion. At the end, he 0:09:41.600 --> 0:09:46.040 had an interesting paragraph where he noted, in his view, 0:09:46.160 --> 0:09:48.760 in Justice Kavanaugh's view that it's not necessarily the end 0:09:48.800 --> 0:09:51.280 of the road, because there could be a state reform 0:09:51.920 --> 0:09:56.640 or Jones could ask for clemency. But that's true in 0:09:56.760 --> 0:10:00.400 every case, whether the Supreme Court makes that or not. 0:10:00.559 --> 0:10:03.840 And so I don't know of any particular reason why 0:10:04.040 --> 0:10:07.560 Jones would be successful on that front. It's possible, but 0:10:08.760 --> 0:10:11.560 the point is, if nothing else happened in his case, 0:10:11.679 --> 0:10:14.080 there's no reason to think that he will not be 0:10:14.400 --> 0:10:17.880 dying in prison. Has the Supreme Court taken up any 0:10:18.160 --> 0:10:23.520 other juvenile justice cases recently? Not very recently. No. Before 0:10:23.559 --> 0:10:26.559 this case, there was the same issue being raised in 0:10:26.600 --> 0:10:30.440 the case of one of the DC snipers, one of 0:10:30.480 --> 0:10:33.760 the two there, but that case wound up settling after 0:10:33.800 --> 0:10:36.520 a change in state law, and so this case, Brett 0:10:36.600 --> 0:10:39.440 Jones's case wound up being a replacement for that. But 0:10:39.480 --> 0:10:42.480 we don't have anything on the horizon now. As I said, 0:10:42.520 --> 0:10:44.600 I think we're going to be looking to the states 0:10:44.679 --> 0:10:48.240 for upcoming action there. Thanks for being on the Bloomberg 0:10:48.280 --> 0:10:53.200 Laws show Jordan's that's Bloomberg Law reporter Jordan Reuben. With 0:10:53.280 --> 0:10:56.320 the nation reeling from a series of mass shootings, the 0:10:56.400 --> 0:10:59.160 Supreme Court has decided to hear a major News Second 0:10:59.160 --> 0:11:02.120 Amendment case involving the right to carry a handgun in 0:11:02.200 --> 0:11:05.400 public for self defense. Joining me is Bloomberg News Supreme 0:11:05.400 --> 0:11:09.160 Court reporter Greg Store explain what gun rights are an 0:11:09.200 --> 0:11:12.320 issue in this case June. The Supreme Court has never 0:11:12.320 --> 0:11:15.520 said whether the Second Amendment applies outside the home, and 0:11:15.960 --> 0:11:18.640 in this case, that's really the core issue. New York 0:11:19.040 --> 0:11:22.160 and about seven other states sharply restrict who can get 0:11:22.200 --> 0:11:26.360 a license to carry a weapon handgun in public. New 0:11:26.400 --> 0:11:29.360 York requires people to show some special need beyond that 0:11:29.480 --> 0:11:32.240 of the average member of the public, and gun rights 0:11:32.240 --> 0:11:34.360 groups have been trying for years to get the Supreme 0:11:34.360 --> 0:11:37.160 Court to take up this issue and say that the 0:11:37.200 --> 0:11:40.520 Second Amendment does apply outside the home and gives people 0:11:40.520 --> 0:11:44.160 a right to carry handguns with them in public for 0:11:44.240 --> 0:11:46.360 self defense purposes. And that's what the Court is going 0:11:46.360 --> 0:11:49.559 to consider the next term. In June, the Supreme Court 0:11:49.600 --> 0:11:53.240 refused to take up challenges to the New Jersey, Massachusetts, 0:11:53.240 --> 0:11:56.760 and Maryland laws which are similar to New York's. So 0:11:56.960 --> 0:12:00.000 is the difference here the fact that Justice Amy Coney 0:12:00.000 --> 0:12:02.760 are it is now on the court. It would seem 0:12:02.800 --> 0:12:04.840 that way certainly from the outside. Of course, we don't 0:12:04.840 --> 0:12:07.520 know who which justice is voted to take up occasion 0:12:07.559 --> 0:12:10.360 which justices didn't, And this is a case where lower 0:12:10.400 --> 0:12:13.520 courts for quite a number of years have disagreed. So 0:12:13.760 --> 0:12:16.360 a number of people, myself included, kind of expected the 0:12:16.360 --> 0:12:18.960 Court to take up this issue a long time ago. 0:12:19.280 --> 0:12:21.120 That said, the one thing that does seem to be 0:12:21.559 --> 0:12:23.960 clearly different from the outside is that you do have 0:12:24.320 --> 0:12:28.400 another conservative justice. Justice Ginsburg, of course was a dissenter 0:12:28.600 --> 0:12:31.720 from the Court's previous gun rights decisions. Based on what 0:12:31.800 --> 0:12:34.720 we know about Justice Barrett, there's a good chance she'll 0:12:34.760 --> 0:12:37.160 be on the side of gun rights, so it's not 0:12:37.200 --> 0:12:39.880 a big jump to say that she probably made the 0:12:39.880 --> 0:12:43.200 difference here. Has there been a split among federal appeals 0:12:43.240 --> 0:12:46.480 courts in handling this issue, There have been. Most federal 0:12:46.480 --> 0:12:51.360 appeals courts have said that the Constitution does not protect 0:12:51.400 --> 0:12:53.560 gun rights outside their home, or at least they've said 0:12:53.559 --> 0:12:56.240 that these laws that restrict the ability of people to 0:12:56.360 --> 0:13:01.560 get carry permits are constitutional. There's one federal appeals court 0:13:01.840 --> 0:13:04.080 I believe that has gone the other way, so there 0:13:04.280 --> 0:13:08.160 is a split on the issue. It's been the issue 0:13:08.240 --> 0:13:11.920 that probably more than any other, gun rights advocates have 0:13:12.000 --> 0:13:15.199 asked of Supreme Courts to take up and to really 0:13:15.200 --> 0:13:18.800 expand the Second Amendment. In its last two gun rights 0:13:18.840 --> 0:13:21.920 decisions in two thousand and eight and two thousand and ten, 0:13:22.520 --> 0:13:26.000 the Court did expand gun rights. So is it likely 0:13:26.080 --> 0:13:29.120 that the Court is taking up this case in order 0:13:29.160 --> 0:13:33.240 to reverse New York's restrictions and expand gun rights again. 0:13:34.160 --> 0:13:36.840 That would seem the most likely, especially given the makeup 0:13:36.960 --> 0:13:40.280 of the court. Now that being said, there has been 0:13:40.320 --> 0:13:43.320 something holding the court back over these last few years. 0:13:43.360 --> 0:13:46.280 There's been some reporting that Chief Justice roberts is one 0:13:46.360 --> 0:13:50.400 justice who is reluctant to expand the Second Amendment in 0:13:50.400 --> 0:13:53.880 this sort of way. That said, the Conservatives don't need 0:13:54.000 --> 0:13:57.480 him in the majority anymore. If the three Trump appointed 0:13:57.520 --> 0:14:02.560 justices there, Kavanaugh, and gorst All agree that these people 0:14:02.600 --> 0:14:04.480 in this case do have a right to get a 0:14:04.559 --> 0:14:09.359 confield carry permit, then John Robertson's vote won't be necessary. 0:14:09.600 --> 0:14:13.520 Do we know where those three justices stand on gun rights? 0:14:13.559 --> 0:14:16.520 Have any of them dealt with gun rights issues when 0:14:16.520 --> 0:14:19.640 they were on circuit courts. Well, we know first of 0:14:19.640 --> 0:14:24.320 all that Kavanaugh and Corset have both expressed a desire 0:14:24.360 --> 0:14:27.560 for the Court to take more Second Amendment cases, including 0:14:27.920 --> 0:14:30.920 this very issue, So they had given us some indication 0:14:31.360 --> 0:14:34.120 that they are eager to get involved, at least in 0:14:34.160 --> 0:14:37.880 this particular issue. Justice bear It, as a lower court 0:14:38.120 --> 0:14:41.920 judge didn't consider this precise issue, but she has handled 0:14:41.960 --> 0:14:46.600 some other Second Amendment issues, including a case involving whether 0:14:46.720 --> 0:14:49.160 a non violence fellone could be banned for life from 0:14:49.200 --> 0:14:52.960 having a handgun, and she has indicated she is going 0:14:53.000 --> 0:14:56.320 to be an advocate of Second Amendment rights. So certainly 0:14:56.600 --> 0:14:59.360 New York has an uphill fight with this particular court. 0:15:00.040 --> 0:15:02.160 This is going to put the justices in the middle 0:15:02.280 --> 0:15:06.400 of one of the country's most divisive issues during a 0:15:06.520 --> 0:15:11.640 national crisis in firearm violence. And we've talked before about 0:15:11.720 --> 0:15:15.280 how the Court has been sort of reluctant to get 0:15:15.280 --> 0:15:19.040 into these kinds of divisive issues at this point. So 0:15:19.400 --> 0:15:21.600 does this look like a turning point for the court. 0:15:22.200 --> 0:15:24.480 It might be, and of course it could also be 0:15:24.680 --> 0:15:26.560 a one off of they felt like they just had 0:15:26.600 --> 0:15:29.640 to take up this particular issue, but yeah, something has 0:15:29.640 --> 0:15:32.800 been holding the court back. The court did, it's somewhat 0:15:32.840 --> 0:15:36.320 interestingly to meet wait for several weeks to decide to 0:15:36.320 --> 0:15:39.200 take this case up. It was relifted at their private 0:15:39.240 --> 0:15:42.880 conference four straight times, so and then they kind of 0:15:42.920 --> 0:15:46.280 modified the exact question about what exactly they're going to decide. 0:15:46.640 --> 0:15:49.600 So there may have been some hesitation from within the 0:15:49.600 --> 0:15:52.360 court about exactly how they wanted to jump in here, 0:15:53.000 --> 0:15:57.080 but certainly given the uh, I think not exaggeration to 0:15:57.080 --> 0:15:59.520 say dozens of cases over the years from gun Right 0:15:59.560 --> 0:16:01.880 to Advocate that the Court has refused to take up, 0:16:02.160 --> 0:16:05.320 this does seem like a turning point moment. So what 0:16:05.400 --> 0:16:08.640 they're going to decide is whether a state has to 0:16:08.760 --> 0:16:13.840 issue carry permits that's right to two typical people, people 0:16:13.840 --> 0:16:16.640 who don't show some special need that sets them apart. 0:16:17.080 --> 0:16:20.920 So New York does issue a very limited number of 0:16:21.160 --> 0:16:24.040 carry permits to people who can show there is something 0:16:24.040 --> 0:16:27.840 about their particular situation beyond just um, I live in 0:16:27.840 --> 0:16:31.160 a dangerous neighborhood and I want to protect myself. So 0:16:31.440 --> 0:16:33.800 it won't mean that every single person couldn't get a 0:16:33.840 --> 0:16:36.560 carry permit states uh, No, doubt will still be able 0:16:36.600 --> 0:16:40.560 to exclude, for example, convicted violent felons from from getting 0:16:40.600 --> 0:16:43.760 a handgun license, and those people are actually barret under 0:16:43.800 --> 0:16:47.440 federal law, but it would mean the average person, or 0:16:47.440 --> 0:16:49.960 potentially could mean the average person would be able to 0:16:50.000 --> 0:16:52.680 get a license to carry a handgun. Thanks Graig, that's 0:16:52.720 --> 0:16:57.560 Bloomberg News. Supreme Court reporter Greg's store. A Supreme Court 0:16:57.600 --> 0:17:02.160 case pits inventors against their former employers. The Supreme Court 0:17:02.200 --> 0:17:04.960 is considering how to balance the rights of companies to 0:17:05.040 --> 0:17:08.960 protect patent rights created with their resources against the ability 0:17:08.960 --> 0:17:12.440 of inventors to move freely between employers. The Court is 0:17:12.480 --> 0:17:15.280 reviewing a US Court of Appeals for the Federal Circuit 0:17:15.359 --> 0:17:18.399 decision that the inventor of a surgical device and his 0:17:18.560 --> 0:17:22.760 current company, Minervous Surgical, can't argue two patents on the 0:17:22.800 --> 0:17:26.920 device are invalid to defeat infringement claims by his former employer, 0:17:27.160 --> 0:17:29.959 Whole Logic, which now owns the rights to the inventions. 0:17:30.359 --> 0:17:33.280 Joining me is Joseph Ray, a partner Kenobi Martin and 0:17:33.359 --> 0:17:37.440 president of the American Intellectual Property Law Association, which submitted 0:17:37.440 --> 0:17:40.800 an amigas brief in the case. So start by explaining 0:17:40.840 --> 0:17:44.280 the facts here. What the issue is well, the facts 0:17:44.280 --> 0:17:48.640 here involve the application of an ancient UH patent law 0:17:48.720 --> 0:17:53.080 doctrine called assin or a stople and this is when 0:17:53.480 --> 0:17:57.600 somebody cannot challenge the validity of a patent that they 0:17:57.720 --> 0:18:03.119 previously sold for value. So in this case, the inventor 0:18:03.760 --> 0:18:07.720 sold the patent to a subsequent company and then later 0:18:07.880 --> 0:18:13.560 began competing with that company, and then the inventor was sued, 0:18:13.680 --> 0:18:17.320 his company was sued for patent infringement, and the appellate 0:18:17.320 --> 0:18:21.840 court said that the inventor could not challenge the validity 0:18:21.880 --> 0:18:26.000 of the patent that he had previously sold. This falls 0:18:26.000 --> 0:18:29.240 in all the other a stopples we have in the law, 0:18:30.240 --> 0:18:32.560 and you're you're familiar with lots of a stopples. We 0:18:32.640 --> 0:18:35.760 have traditional a stopple, we have collateral a stopple, we 0:18:35.800 --> 0:18:39.360 have equitable a stopple. Here we're dealing with asson or 0:18:39.359 --> 0:18:43.720 a stopple, and asson or stopple should be less of 0:18:43.760 --> 0:18:46.320 a legal ground and more of an equitable one, and 0:18:46.320 --> 0:18:49.399 that's what we're fighting over. The appellate court treated it 0:18:49.480 --> 0:18:53.280 as a legal a stopple, and really I think the 0:18:53.359 --> 0:18:57.120 court thinks that should be treated more equitably, like equitable 0:18:57.119 --> 0:18:59.840 as stopple, and that is, let's actually look at what 0:18:59.880 --> 0:19:03.879 the representation was, to what extent was their reliance and 0:19:03.960 --> 0:19:06.439 treat it more like a traditionalist stop rather than a 0:19:06.520 --> 0:19:09.560 rigid legal as stop them. Tell us a little bit 0:19:09.600 --> 0:19:13.800 more about the facts here. The employee sells the patent 0:19:14.240 --> 0:19:16.720 or give the rights to the patents to his employer. 0:19:17.200 --> 0:19:20.240 Then he leaves the company and he challenges that patent 0:19:20.640 --> 0:19:23.880 or is it more more discreet than that? Well, that's 0:19:23.960 --> 0:19:27.440 that's close enough. What happened was there was some transfers 0:19:27.480 --> 0:19:31.320 to subsequent companies. So the company was sold, and he 0:19:31.359 --> 0:19:33.919 was the founder of the original company, and he was 0:19:34.000 --> 0:19:38.919 paid and he he did receive some money for the 0:19:38.960 --> 0:19:42.160 sale of the company as a shareholder, and then there 0:19:42.160 --> 0:19:46.119 were successor companies. And so this rule applies to anybody 0:19:46.200 --> 0:19:49.639 in privaty. So he obviously was in privity with the 0:19:49.680 --> 0:19:53.480 sale of the patent initially, and so he was precluded 0:19:53.480 --> 0:19:56.320 by the appellate court, the United States Court of Appeals 0:19:56.320 --> 0:19:59.200 for the Federal Circuit in Washington, d c. They held 0:19:59.520 --> 0:20:02.239 that the but these really didn't matter that since he 0:20:02.840 --> 0:20:06.720 was the seller of the patent initially or the patent application, 0:20:07.119 --> 0:20:11.160 he has precluded no matter what happens in subsequent prosecution 0:20:11.520 --> 0:20:14.720 of the patent application. I think I think the the 0:20:14.920 --> 0:20:17.760 Supreme Court will think the Appellate Court was way too 0:20:17.880 --> 0:20:21.480 rigid in its application of the rule. They should have 0:20:21.560 --> 0:20:27.040 considered how the invention changed over time. So remember in 0:20:27.160 --> 0:20:31.960 patent sometimes the prosecution takes ten fifteen years before the 0:20:31.960 --> 0:20:35.800 patent office, and so I could sell you a disclosure 0:20:36.000 --> 0:20:40.240 on an automobile, but the ultimate claim that issues from 0:20:40.240 --> 0:20:43.959 the patent office may happen ten fifteen years later, and 0:20:44.080 --> 0:20:48.160 the claim may be much broader then simply the disclosure 0:20:48.240 --> 0:20:50.560 in the patent application. So if I sell you an 0:20:50.560 --> 0:20:55.639 application to a car, you could effectively prosecuted to have 0:20:55.760 --> 0:20:59.920 it covered any transport mechanism, something much broader than a car. 0:21:00.560 --> 0:21:03.880 And so that's what makes this different than real property 0:21:03.960 --> 0:21:08.240 where the boundaries are set. Those are the facts. So now, 0:21:08.320 --> 0:21:11.679 during the Supreme Court oral arguments, what were some of 0:21:11.720 --> 0:21:16.800 the main concerns the justices were expressing in their questioning, Well, 0:21:17.119 --> 0:21:19.359 there were many, and this case could be decided on 0:21:19.400 --> 0:21:22.680 many many grounds. First of all, is it settled doctrine? 0:21:22.880 --> 0:21:26.000 That's the first question, and there's much debate about whether 0:21:26.119 --> 0:21:30.400 or not this doctrine still survived much tortuous case law. 0:21:31.040 --> 0:21:33.840 The second question is is this a job for Congress? 0:21:34.080 --> 0:21:38.080 Should this be left alone? Did Congress ever adopt or 0:21:38.280 --> 0:21:42.000 sanction such a doctrine, and so the justices were not 0:21:42.240 --> 0:21:46.080 sure whose role it would be to cabineist doctrine in 0:21:47.080 --> 0:21:50.639 The third thing is also should the doctrine be curtailed? 0:21:51.119 --> 0:21:53.920 That was the main focus of the argument. It appears 0:21:53.960 --> 0:21:58.320 the doctrine will survive, but in a very modified scale 0:21:58.359 --> 0:22:02.200 down version. Did so of the justices expressing opinion that 0:22:02.400 --> 0:22:05.200 you know, why disturb this doctrine? It's been in place 0:22:05.280 --> 0:22:08.920 for so long. Yes, the best example of that would 0:22:08.960 --> 0:22:13.879 be Justice Kavanaugh. He specifically asked the petitioner, why should 0:22:13.880 --> 0:22:17.000 we upset a doctrine that has been around for so long? 0:22:17.080 --> 0:22:20.040 That's exactly what his point was. So, where do you 0:22:20.080 --> 0:22:24.639 think the Court is going to come out? I do 0:22:24.800 --> 0:22:28.880 think the Court will preserve the doctrine, but scale it back. 0:22:29.680 --> 0:22:32.880 Let the court's focus on some of the key equitable 0:22:32.920 --> 0:22:36.880 facts to show that the doctrine makes sense. The doctrine 0:22:36.880 --> 0:22:39.680 may not make sense under the facts of this case 0:22:40.160 --> 0:22:44.840 because the patent changed form, it did not claim the 0:22:44.920 --> 0:22:47.960 exact same invention that was transferred at the time of 0:22:48.000 --> 0:22:51.439 the initial assignment. And that's what makes intellectual property cases 0:22:51.520 --> 0:22:56.440 or patent cases so difficult. The legal rights change over 0:22:56.520 --> 0:23:00.639 time because there's continuing prosecution before the at in office, 0:23:00.880 --> 0:23:05.399 which changes the boundaries of the patent rights. So how 0:23:05.440 --> 0:23:09.160 would the Supreme Court then frame the ruling in order 0:23:09.240 --> 0:23:12.480 to reach some kind of middle ground? Is this going 0:23:12.520 --> 0:23:15.879 to be on a case by case basis, well, case 0:23:15.920 --> 0:23:21.000 by case basis by actually looking exactly what was assigned, 0:23:21.520 --> 0:23:25.960 What did the action or actually believe he was transferring? 0:23:27.119 --> 0:23:29.640 That's the key fact, and that's the position the government 0:23:29.680 --> 0:23:33.359 has taken. The government did advance a middle ground, as 0:23:33.400 --> 0:23:36.000 did we at the a I p l A, that 0:23:36.440 --> 0:23:38.879 you should look to the facts and actually try to 0:23:39.000 --> 0:23:44.159 determine what did the assonaur believe he was transferring and 0:23:44.320 --> 0:23:47.840 warranting at the time of the assignment. What's the position 0:23:47.880 --> 0:23:51.760 of tech companies? Are they afraid that this is going to, 0:23:52.560 --> 0:23:57.959 you know, erode their rights and intellectual properties? No? And 0:23:58.000 --> 0:24:00.840 it's it's funny how you label tech. These tech companies 0:24:00.880 --> 0:24:04.480 fall all over the spectrum. Many of the large tech 0:24:04.520 --> 0:24:10.160