The Pulse of the Court Podcast Series

The Pulse of the Court is a Gray Matters podcast series that examines and analyzes major decisions and current events revolving around the Supreme Court of the United States:


Episode 2 (Episode 87 of Gray Matters): Lawsuits Against Government Officers & the February Sitting
March 3, 2022

With Steve Engel, Partner, Dechert LLP & former Assistant Attorney General, Office of Legal Counsel
& Jenn Mascott, Assistant Professor of Law & Co-Executive Director, Gray Center

Today, in the Gray Center’s “Pulse of the Court” podcast series, Steve Engel of Dechert LLP and Jenn discuss the just-completed February oral argument sitting at the Supreme Court. They focus primarily on the final case of the sitting, Egbert v. Boule, which raises important questions about whether, and when, federal officers should be subject to monetary damages for alleged violations of constitutional rights.

In Egbert, a border agent was sued in his individual capacity for his actions during an investigation of a bed-and-breakfast known as the Smugglers Inn near the U.S.-Canada border. Mr. Engel filed an amicus brief in the case on behalf of former U.S. attorneys general who addressed the separation of powers issues related to judicial implication of remedies versus congressionally enacted statutory causes of action. Prof. Mascott filed an amicus brief in her academic capacity, discussing whether historical practice within the federal system is consistent with the Bivens implied claims for monetary damages at issue in the case. On the episode, Jenn and Steve discuss lawsuits against government officers, the facts and arguments in this particular case, their amicus briefs, and the Justices’ discussion at oral arguments yesterday morning. They also briefly address general themes from the February sitting, which also included consideration of the challenge to U.S. Environmental Protection Agency clean air regulations in West Virginia v. EPA.


Episode 1 (Episode 83 of Gray Matters): Recap of the Supreme Court Arguments on the Vaccine-or-Testing Mandate
January 10, 2022

On Friday, the Supreme Court heard oral arguments on the legality of the Occupational Safety and Health Administration’s (“OSHA”) vaccination-or-test mandate.  The parties challenging the mandate contend that it is unprecedented in the breadth of its assertion of authority.  On this podcast, Professor Jenn Mascott, co-director of the Gray Center, interviews Steve Lehotsky of Lehotsky Keller–the counsel of record for the business groups challenging the mandate.  Mascott and Lehotsky discuss the oral arguments from Friday, including the questioning faced by Lehotsky’s partner, Scott Keller, who was the first attorney to argue before the Court in 2022.  Friday’s argument was in an unusual posture, as it involved the parties’ request that the Court stay the government’s mandate, which Lehotsky and Mascott will also address.  Tune in for discussion of the Justices’ consideration of who, and which institution, in our federal system has the power to decide health and economic policy questions of enormous magnitude, based on the terms of a law passed by Congress more than five decades ago in 1970.

This episode features Steve Lehotsky and Jenn Mascott.