Supreme Court Reverses Trend on Juvenile Justice

without parole. The ruling follows more than a decade where the Court had moved toward more leniency from minors convicted of murder, treating them differently from adults. Joining me as Bloomberg Law reported Jordan Reuben Jordan tell us about the defendant in this case. Brett Jones was convicted of murder for a crime that he committed when he was fifteen

years old. He fatally stabbed his grandfather during an argument at home, and he was initially sentenced to life without the possibility of parole, and his case called into question this line of Supreme Court precedents going back years, and the Court wound upholding in a previous decision that mandatory life without parole sentences for juveniles are unconstitutional, and so that raised further appeals in Jones's case, where the Supreme Court had to sort out what exactly is required of

judges when they're handing down these life without parole sentences to juveniles in these discretionary schemes. Did a judge review his sentence after he was in prison? That's right, the judge did do that. However, the judge did not make a finding that Jones was quote permanently incorrigible end quote, which is some language that had been in some of

these prior Supreme Court decisions. And he argued that that's required before a judge makes a finding that a person who was a minor when they committed the crime can be sentenced to life without the possibility of parole. So

what did the Supreme Court rule? The stream Court said that that is actually not required by those precedents, and that all these prior precedents require is that a statutory scheme is that a state's scheme be discretionary, and so so long as it's not a mandatory scheme, then that is enough under the Constitution. And so this was a six to three split tell us about the split right.

This one split right along party lines. That was a decision written by Justice Kavanaugh, and he was joined by the other five Republican appointees and the three remaining Democratic appointees were in descent. And that's not super unusual in these types of cases under the Eighth Amendment. We've seen these types of divides before in these cases, and so this is continuing that pattern. So Justice Soda Mayor wrote the descent, and she said that the majority opinion guts precedent.

Explain what she meant. So Justice so dom Oral looks back at those precedents and said that in order for the majority to make this ruling, that a permanent and corigibility finding is not required, that a factual finding is not required. In order to reach that result, the majority really had to contort precedent to a point where, in her words, they were gutting precedent without admitting it and rewriting those prior precedents in the process without admitting it.

That was the descents view. The Court in the past has treated juveniles more leniently in violent crimes because of their lack of maturity. Tell us about that history. So there's been a series of decisions where one decision after the other, the Court, in a progression, really kept handing down rulings that were more and more favorable to people who committed crimes when they were miners. Although that was back when Justice Kennedy was still on the court before

he retired and was replaced by Justice Kavanaugh. So this case really marked a halt to that progression, is one way to look at it. And it's obvious why that happened. It's because of the change in personnel on the court since those prior rulings were handed down. Explain how this case highlights the divide on the Court when it comes

to the Eighth Amendment and cruel and unusual punishment cases. So, I think what we've seen in a lot of these Eighth Amendment cases, which is the backdrop for this cruel and unusual punishment, that's what the Eighth Amendment prohibits. However, there are pretty stark disagreements over what exactly that means. The same sort of divide that we've seen in death

penalty cases, which are also Eighth Amendment cases. Issues that are implicated there, and so we see that same divide, and so this case is an example of really what the Republican appointees have seen as required under the Eighth Amendment as opposed to what the Democratic appointees have seen as required. And this case is really a perfect reflection of that split. I was surprised the United States is the only country that allows juveniles to be given life

without parole. That's right. We're an outlier in the world, again, similar to the death penalty, where we're not the only one, but certainly in the minority of countries, certainly in so called developed nations that have it. And so this is another criminal justice aspect of our country where we're an outlier compared to the rest of the world, certainly the so called developed world. And what about the States? Where do the States stand on this issue? Right? So that's

a very good question, June. I'm glad you asked, because, as in a lot of criminal justice spaces, we're seeing more attention being put on the state, especially where reformers are not seeing success at the Supreme Court, and so they've been making a stride there in their view in order to either curtail or ban the use of, for example, life without parole for juvenile offenders. And so as it

stands down. More than half the state's either ban the practice or don't have anyone serving these types of sentences, And that's really where reformers are focusing their energy now is on the states. Jordan. The Court often takes cases when there's a split in the circuits. Was there a split in the circuits here? So they definitely took it in order to try and explain really these prior precedents, because it was not clear what exactly they meant in

terms of what exactly was required. As Jones's case showed so fair at least, it was an incredibly important issue that the Court felt the need to explain, and there really could be still more left to explain. Although in this case the Court said judges don't need to make this certain finding. Perhaps we could see future cases falling somewhere in the middle between a judge saying nothing and

a judge making this permanent and corige ability finding. There could still be a lingering question of what exactly do or do not judges have to do. So there's no rule right now, or does it depend on the states as to what a judge has to find in order to put a juvenile in prison for life. So it is it is clear now under the Supreme Court's latest decision in Jones's case, what's not required. A judge does not specifically have to say, I find this person to

be permanently incorrigible. It's enough, according to this latest decision, for there to have been discretion for the judge to have considered youth as midgaining factor under those prior precedents. There just could potentially be another case delving further into perhaps there's an unclear situation of whether a judge made this consideration or not, because we have this pretty bright line rule from the Supreme Court now, So there could

still be further challenges. But as I said, I really think the focus for people making these challenges is going to be more so putting their energy into the state level then necessarily hoping for success at the Supreme Court, at least as it's constructed now. I was struck in your story. You spoke to John Neeman, who had argued for the state in the Miller case when he was Alabama Solicitor General, and he said, we're all capable of redemption.

I thought that was interesting because as he was on the other side of it, right and so I think ultimately he agreed with this decision. In the Jones case, he was raising an interesting point where this permanent incorrigibility standard, and it wasn't taken out of tanair, it was taken

from prior precedence what Jones was arguing for. It raises interesting questions of what exactly is a judge doing when they're making this finding, Because the point that Mr Neeman was raising was if you're a person who finds that no one is beyond redemption, then it would be impossible for a judge to make this finding against a defendant. So that could be part of what was animating the majority's concerned here in the Jones case that if that's

the rule, and then it ties the judge's hands. In effect, they have to say, I believe this person is beyond redemption and that's something that can cross different ideological and religious lines, what have you. And so it could be just a matter of the court saying we don't want judges to get into that specific type of business. So, now, as far as Jones is concerned, does he have any avenues left? Does he get to go back to the judge and say anything, or is this the end of

the road. So I think it is the end of the road in Justice Kavanaugh's opinion. At the end, he had an interesting paragraph where he noted, in his view, in Justice Kavanaugh's view that it's not necessarily the end of the road, because there could be a state reform or Jones could ask for clemency. But that's true in every case, whether the Supreme Court makes that or not. And so I don't know of any particular reason why

Jones would be successful on that front. It's possible, but the point is, if nothing else happened in his case, there's no reason to think that he will not be dying in prison. Has the Supreme Court taken up any other juvenile justice cases recently? Not very recently. No. Before this case, there was the same issue being raised in the case of one of the DC snipers, one of the two there, but that case wound up settling after a change in state law, and so this case, Brett

Jones's case wound up being a replacement for that. But we don't have anything on the horizon now. As I said, I think we're going to be looking to the states for upcoming action there. Thanks for being on the Bloomberg Laws show Jordan's that's Bloomberg Law reporter Jordan Reuben. With the nation reeling from a series of mass shootings, the Supreme Court has decided to hear a major News Second Amendment case involving the right to carry a handgun in

public for self defense. Joining me is Bloomberg News Supreme Court reporter Greg Store explain what gun rights are an issue in this case June. The Supreme Court has never said whether the Second Amendment applies outside the home, and in this case, that's really the core issue. New York and about seven other states sharply restrict who can get

a license to carry a weapon handgun in public. New York requires people to show some special need beyond that of the average member of the public, and gun rights groups have been trying for years to get the Supreme Court to take up this issue and say that the Second Amendment does apply outside the home and gives people a right to carry handguns with them in public for self defense purposes. And that's what the Court is going

to consider the next term. In June, the Supreme Court refused to take up challenges to the New Jersey, Massachusetts, and Maryland laws which are similar to New York's. So is the difference here the fact that Justice Amy Coney are it is now on the court. It would seem that way certainly from the outside. Of course, we don't know who which justice is voted to take up occasion which justices didn't, And this is a case where lower

courts for quite a number of years have disagreed. So a number of people, myself included, kind of expected the Court to take up this issue a long time ago. That said, the one thing that does seem to be clearly different from the outside is that you do have another conservative justice. Justice Ginsburg, of course was a dissenter

from the Court's previous gun rights decisions. Based on what we know about Justice Barrett, there's a good chance she'll be on the side of gun rights, so it's not a big jump to say that she probably made the difference here. Has there been a split among federal appeals

courts in handling this issue, There have been. Most federal appeals courts have said that the Constitution does not protect gun rights outside their home, or at least they've said that these laws that restrict the ability of people to get carry permits are constitutional. There's one federal appeals court I believe that has gone the other way, so there

is a split on the issue. It's been the issue that probably more than any other, gun rights advocates have asked of Supreme Courts to take up and to really expand the Second Amendment. In its last two gun rights decisions in two thousand and eight and two thousand and ten, the Court did expand gun rights. So is it likely that the Court is taking up this case in order to reverse New York's restrictions and expand gun rights again. That would seem the most likely, especially given the makeup

of the court. Now that being said, there has been something holding the court back over these last few years. There's been some reporting that Chief Justice roberts is one justice who is reluctant to expand the Second Amendment in this sort of way. That said, the Conservatives don't need

him in the majority anymore. If the three Trump appointed justices there, Kavanaugh, and gorst All agree that these people in this case do have a right to get a confield carry permit, then John Robertson's vote won't be necessary. Do we know where those three justices stand on gun rights? Have any of them dealt with gun rights issues when

they were on circuit courts. Well, we know first of all that Kavanaugh and Corset have both expressed a desire for the Court to take more Second Amendment cases, including this very issue, So they had given us some indication that they are eager to get involved, at least in

this particular issue. Justice bear It, as a lower court judge didn't consider this precise issue, but she has handled some other Second Amendment issues, including a case involving whether a non violence fellone could be banned for life from having a handgun, and she has indicated she is going to be an advocate of Second Amendment rights. So certainly New York has an uphill fight with this particular court.

This is going to put the justices in the middle of one of the country's most divisive issues during a national crisis in firearm violence. And we've talked before about how the Court has been sort of reluctant to get into these kinds of divisive issues at this point. So does this look like a turning point for the court. It might be, and of course it could also be a one off of they felt like they just had to take up this particular issue, but yeah, something has

been holding the court back. The court did, it's somewhat interestingly to meet wait for several weeks to decide to take this case up. It was relifted at their private conference four straight times, so and then they kind of modified the exact question about what exactly they're going to decide.

So there may have been some hesitation from within the court about exactly how they wanted to jump in here, but certainly given the uh, I think not exaggeration to say dozens of cases over the years from gun Right to Advocate that the Court has refused to take up, this does seem like a turning point moment. So what they're going to decide is whether a state has to issue carry permits that's right to two typical people, people who don't show some special need that sets them apart.

So New York does issue a very limited number of carry permits to people who can show there is something about their particular situation beyond just um, I live in

a dangerous neighborhood and I want to protect myself. So it won't mean that every single person couldn't get a carry permit states uh, No, doubt will still be able to exclude, for example, convicted violent felons from from getting a handgun license, and those people are actually barret under federal law, but it would mean the average person, or potentially could mean the average person would be able to get a license to carry a handgun. Thanks Graig, that's

Bloomberg News. Supreme Court reporter Greg's store. A Supreme Court case pits inventors against their former employers. The Supreme Court is considering how to balance the rights of companies to protect patent rights created with their resources against the ability

of inventors to move freely between employers. The Court is reviewing a US Court of Appeals for the Federal Circuit decision that the inventor of a surgical device and his current company, Minervous Surgical, can't argue two patents on the device are invalid to defeat infringement claims by his former employer, Whole Logic, which now owns the rights to the inventions.

Joining me is Joseph Ray, a partner Kenobi Martin and president of the American Intellectual Property Law Association, which submitted an amigas brief in the case. So start by explaining the facts here. What the issue is well, the facts here involve the application of an ancient UH patent law doctrine called assin or a stople and this is when somebody cannot challenge the validity of a patent that they

previously sold for value. So in this case, the inventor sold the patent to a subsequent company and then later began competing with that company, and then the inventor was sued, his company was sued for patent infringement, and the appellate court said that the inventor could not challenge the validity of the patent that he had previously sold. This falls in all the other a stopples we have in the law,

and you're you're familiar with lots of a stopples. We have traditional a stopple, we have collateral a stopple, we have equitable a stopple. Here we're dealing with asson or a stopple, and asson or stopple should be less of a legal ground and more of an equitable one, and

that's what we're fighting over. The appellate court treated it as a legal a stopple, and really I think the court thinks that should be treated more equitably, like equitable as stopple, and that is, let's actually look at what the representation was, to what extent was their reliance and treat it more like a traditionalist stop rather than a rigid legal as stop them. Tell us a little bit more about the facts here. The employee sells the patent or give the rights to the patents to his employer.

Then he leaves the company and he challenges that patent or is it more more discreet than that? Well, that's that's close enough. What happened was there was some transfers to subsequent companies. So the company was sold, and he was the founder of the original company, and he was paid and he he did receive some money for the sale of the company as a shareholder, and then there were successor companies. And so this rule applies to anybody

in privaty. So he obviously was in privity with the sale of the patent initially, and so he was precluded by the appellate court, the United States Court of Appeals for the Federal Circuit in Washington, d c. They held that the but these really didn't matter that since he was the seller of the patent initially or the patent application, he has precluded no matter what happens in subsequent prosecution

of the patent application. I think I think the the Supreme Court will think the Appellate Court was way too rigid in its application of the rule. They should have

considered how the invention changed over time. So remember in patent sometimes the prosecution takes ten fifteen years before the patent office, and so I could sell you a disclosure on an automobile, but the ultimate claim that issues from the patent office may happen ten fifteen years later, and the claim may be much broader then simply the disclosure

in the patent application. So if I sell you an application to a car, you could effectively prosecuted to have it covered any transport mechanism, something much broader than a car. And so that's what makes this different than real property where the boundaries are set. Those are the facts. So now, during the Supreme Court oral arguments, what were some of the main concerns the justices were expressing in their questioning, Well, there were many, and this case could be decided on

many many grounds. First of all, is it settled doctrine? That's the first question, and there's much debate about whether or not this doctrine still survived much tortuous case law. The second question is is this a job for Congress? Should this be left alone? Did Congress ever adopt or sanction such a doctrine, and so the justices were not sure whose role it would be to cabineist doctrine in The third thing is also should the doctrine be curtailed?

That was the main focus of the argument. It appears the doctrine will survive, but in a very modified scale down version. Did so of the justices expressing opinion that you know, why disturb this doctrine? It's been in place for so long. Yes, the best example of that would be Justice Kavanaugh. He specifically asked the petitioner, why should we upset a doctrine that has been around for so long? That's exactly what his point was. So, where do you

think the Court is going to come out? I do think the Court will preserve the doctrine, but scale it back. Let the court's focus on some of the key equitable facts to show that the doctrine makes sense. The doctrine may not make sense under the facts of this case because the patent changed form, it did not claim the exact same invention that was transferred at the time of the initial assignment. And that's what makes intellectual property cases

or patent cases so difficult. The legal rights change over time because there's continuing prosecution before the at in office, which changes the boundaries of the patent rights. So how would the Supreme Court then frame the ruling in order to reach some kind of middle ground? Is this going to be on a case by case basis, well, case by case basis by actually looking exactly what was assigned, What did the action or actually believe he was transferring?

That's the key fact, and that's the position the government has taken. The government did advance a middle ground, as did we at the a I p l A, that you should look to the facts and actually try to determine what did the assonaur believe he was transferring and warranting at the time of the assignment. What's the position of tech companies? Are they afraid that this is going to, you know, erode their rights and intellectual properties? No? And

it's it's funny how you label tech. These tech companies fall all over the spectrum. Many of the large tech companies normally are defendants in patent cases. So um, they are not as dependent on patents as smaller companies. So really we divide uh the markets and normally by the size of the company. Smaller companies tend to be more dependent on the patent system than larger tech companies. Does the Supreme Court take patent cases very often? Well, no, um,

And depends what window of time you're looking at. I do remember in the nineties or in the eighties and nineties, they might take one or two a decade. Now they're taking three, four a year um. And so there the Court is showing much more interest in patent cases because they recognize the importance of our patent system. Thanks for being on the Bloomberg Laws Show. That's Joseph ray, a partner Canoby Martin and President of the American Intellectual Property

Law Association. And that's it for the edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify and at www dot Bloomberg dot com, slash podcast slash Law. I'm June Grosso and you're listening to Bloomberg