National Law Journal: Inside the Court for Trump v. Hawaii | Shanmugam's Hat Trick | Feuding Footnotes: Alito v. .....



NATIONAL LAW JOURNAL
Supreme Court Brief
POWERED BY LAW.COM
Tony Mauro
Marcia Coyle
Jun 27, 2018
We've arrived. The Supreme Court this morning is expected to put a wrap on the October 2017 term. Two cases remain: a challenge to "fair share" fees paid to unions and an "original" water dispute between Florida and Georgia. After Tuesday's dramatic decisions—with passionate dissents from the bench in the travel ban and California crisis pregnancy center cases—will today bring more drama? Perhaps a retirement? Stay tuned. Meanwhile, our observations from Tuesday's historic sitting are below, and we report on an under-the-radar petition about law firm arbitration clauses.

As always, thanks for reading, and we welcome feedback at tmauro@alm.com and mcoyle@alm.com.
Inside the Court for Trump v. HawaiiFor 40 minutes, an extraordinary amount of time, Chief Justice John Roberts Jr.Stephen Breyer and Sonia Sotomayor, in contrasting styles, read from the bench in the court's landmark decision in Trump v. Hawaii. It was high drama.

Roberts methodically knocked down, one by one, the plaintiffs' arguments that the Trump travel ban violated immigration law and the First Amendment's Establishment Clause.
No surprise so far—until Roberts was almost done. He had dismissed the notion that the travel ban was anything like the World War II Japanese American internment decision Korematsu v. United States, stating unequivocally that "Korematsu has nothing to do with this case."

But he wasn't done. Even though Korematsu was irrelevant, Roberts said that the dissenting justices' mention of the case gave him the chance to declare the 1944 Korematsu ruling was "gravely wrong the day it was decided, and has been overruled in the court of history."

Roberts's words were a stunning reminder that the court can do pretty much whatever it wants even on an issue that is not squarely before it. Previous efforts to get the court to overturn Korematsu were unsuccessful, but the court finally made the move on its own—74 years late.

Then came Breyer, who seemingly tried to strike a middle ground. As his wife Joanna watched from the justices' guest section, Breyer, who only minutes earlier and in a strongly disapproving tone, summarized his dissent in the California First Amendment challenge, returned to an issue that worried him during the travel ban arguments: Was the government fairly applying an elaborate system of waivers from the bar on entry?

There were amici briefs, statistics and anecdotes saying no, Breyer said, but that wasn't evidence. The court should have sent the case back for additional findings, but since it wasn't, he added, the evidence, including President Trump's anti-Muslim statements, were "sufficient to set the Proclamation aside."
Sotomayor delivered a searing summary from the bench, pulling no punches in her criticism of Trump—and her colleagues in the majority. She listed the president's statements with the name "Trump" repeated over and over again.

"Let the gravity of those statements sink in,” Sotomayor said. “Most of these words were spoken or written by the current president of the United States.” As for her fellow justices, Sotomayor predicted that history would not look kindly on the court’s “misguided decision” as she called it. She added, “Nor should it.”

➤➤ Looking for the audio of Tuesday's opinion announcement in Trump v. Hawaii, so you can hear the justices’ statements from the bench? It doesn't exist—not publicly at least. The court traditionally clings to audio from decision announcements until the following term—releasing it months after cases have been decided and opinions announced.

Why? The court won’t say, but here’s the reason: justices don’t want their or their colleagues’ cursory, sometimes hyperbolic bench statements to be viewed as a definitive rendition of the actual decision. So they hide the audio as long as they can. 
Law Firm's Arbitration Push in Malpractice Dispute Fails at High Court
The justices on Monday turned back a challenge to a Maine ruling that requires attorneys to obtain informed consent from prospective clients that any future legal malpractice claims will be submitted to binding arbitration.

The high court declined review in Bernstein, Shur, Sawyer & Nelson v. Snow. The law firm, represented by Jenner & Block partner Matthew Hellman, challenged a ruling in December by the Maine Supreme Judicial Court. Hellman argued the Federal Arbitration Act, or FAA, should preempt the state-law rule.

"The Maine SJC adopted a rule subjecting attorney-client engagement agreements to a heightened 'informed consent' requirement, on the ground that those agreements 'waive' the client’s 'fundamental right' under the Maine Constitution 'to a jury trial in civil matters,'" Hellman wrote in the petition. "It is difficult to imagine a clearer articulation of a legal rule that violates the FAA."

The case stemmed from Bernstein Shur's engagement with Dr. Susan Snow, who hired the firm to represent her in civil proceedings related to the distribution of her father's estate. Snow signed Bernstein's standard terms of engagement, which included an arbitration clause.

The clause dealt specifically with fee disputes and stated that "any other dispute that arises out of or relates to this agreement or the services provided by the law firm shall also, at the election of either party, be subject to binding arbitration.”

Snow later sued the firm for alleged malpractice, and the law firm moved to compel arbitration.

Relying on Maine Rules of Professional Conduct and opinions by the ABA Standing Committee on Ethics and Professional Responsibility and the Maine Professional Ethics Commission, the state high court said attorneys must "effectively communicate" clients that malpractice claims are covered under the arbitration agreement.

"The attorney must also explain, or ensure that the client understands, the differences between the arbitral forum and the judicial forum, including the absence of a jury and such ‘procedural aspects of forum choice such as timing, costs, appealability, and the evaluation of evidence and credibility,'” the court said.

On the preemption question, the state high court concluded: "Here, the requirement in question—that attorneys fully inform a client of the scope and effect of a contractual provision requiring the client to submit any malpractice claims against the firm to arbitration—does not 'singl[e] out' arbitration agreements, and is therefore not preempted by the FAA."

Snow's counsel, Benjamin Donahue of Hallett Whipple Weyrens in Portland, Maine, had urged the justices to deny review.

Donahue argued the state high court's ruling "does not 'target arbitration either by name or by more subtle methods,' but even-handedly applies to arbitration agreements the same standard of informed consent that applies to other transactions between attorneys and clients that involve significant matters in which the parties have potentially conflicting interests."
Feuding Foonotes: Alito v. Sotomayor EditionWas Justice Samuel Alito Jr. getting a little testy with Justice Sonia Sotomayor's dissent in the Texas racial gerrymander decision? Alito wrote 41 pages in his majority opinion to Sotomayor's 45 pages—and they battled in footnotes as well: 27 by Alito; 21 by Sotomayor.

Alito's footnote No. 19 said: "The dissent is simply wrong in claiming over and over that we have not thoroughly examined the record. The dissent seems to think that the repetition of these charges somehow makes them true. It does not. On the contrary, it betrays the substantive weakness of the dissent’s argument."

Sotomayor shot back in footnote No. 13: "The majority contends in passing that its analysis takes account of 'all the relevant evidence in the record,' apparently believing that stating it explicitly somehow makes it true. It does not. The district court orders in these cases are part of the public record and readers therefore can judge for themselves."
ICYMI: Kannon Shanmugam's Hat Trick, Trump's Tweets & More

>> The Supreme Court's repudiation of its "Korematsu" Japanese internment ruling was bittersweet for rights advocates.

>> Justice Clarence Thomas, writing alone, used the travel ban decision to raise doubts about the lawfulness of nationwide injunctions. That issue is now on the justices' plate in a sanctuary cities case.

>> The court's travel ban decision could, according to the Washington Post, "shed light on an increasingly important question to civil society: What is the legal value of a presidential tweet?" More here from Ellis Kim at the NLJ on what the court said about Trump's tweets.

>> Williams & Connolly's Kannon Shanmugam won three cert grants this week. "It's going to be a busy summer," he says

>> US Supreme Court rejected a cert petition from Brendan Dassey, central the Netflix series "Making a Murderer."

>> The justices gave a Washington state florist a new chance to argue she did not discriminate against a gay couple in refusing to make an arrangement for a same-sex wedding. The Washington Post says the decision was "like punting after a punt."

>> The Supreme Court will decide whether confidential prior sales of an invention trigger the “on-sale bar,” and qualify as prior art that can invalidate a patent.

>> The justices turned back a challenge that addressed a federal judge's tweets.
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