NATIONAL LAW JOURNAL
Supreme Court Brief
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Tony Mauro
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Marcia Coyle
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Good morning—there is the possibility the Supreme Court will issue opinions this morning, before the justices hear arguments in perhaps the most visible case of the term—the addition of a citizenship question on the 2020 census. The challengers received Big Law help on their amicus briefs. We take a look at some of those briefs and law firms behind them. We also highlight one of those memorable argument moments when the justices assert their role in the constitutional structure. And LGBT cases now are on next term's decision docket. Thanks for reading Supreme Court Brief. Contact us at tmauro@alm.com and mcoyle@alm.com, and follow us on Twitter at @Tonymauro and @MarciaCoyle.
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Census Challengers Get Big Law Boost
The justices this morning will hear arguments on whether the addition of a citizenship question on the 2020 census violates the Constitution's enumeration clause, the Administrative Procedure Act and the Census Act. The case is the most significant confrontation of a Trump administration policy since last term's 5-4 travel ban decision in favor of the administration.
The justices have added 20 minutes to the usual 60 minute-argument time. Four lawyers will take their turn at the podium: Francisco for the government; and for the challengers: New York Solicitor General Barbara Underwood (above), Dale Ho of the ACLU, and Douglas Letter, general counsel of the U.S. House of Representatives. Letter is making his second-ever argument at the high court.
More than half of the 36 amicus briefs supporting the challengers in the case Department of Commerce v. New York and the New York Immigration Coalition relied on lawyers from major law firms to make their arguments. Some included veteran high court advocates Mayer Brown partner Andrew Pincus, counsel to five former Census Bureau directors; Pratik Shah, co-head of the Supreme Court and appellate practice at Akin Gump Strauss Hauer & Feld, representing the Fred T. Korematsu Center and the Council on American-Islamic Relations, and Latham & Watkins partner Richard Bress, counsel to the National School Boards Association.
Other firms that filed amicus briefs included Kellogg, Hansen, Todd, Figel & Frederick; Gibson, Dunn & Crutcher; Paul, Weiss, Rifkind, Wharton & Garrison; Goodwin Procter; Boies Schiller Flexner; Hogan Lovells; Jenner & Block; Sidley Austin; Manatt Phelps & Phillips; Reed Smith; and Covington & Burling.
These amicus briefs tackle a range of issues raised by a citizenship question: impact on federal funding of states and localities; apportionment of congressional seats, effect on the Voting Rights Act and minority communities, among others.
Gibson Dunn's Stuart Delery (at left), who represents 24 businesses and business organizations, including Lyft Inc., Levi Strauss & Co. and Univision Communications, tells the high court: "With a census whose accuracy is impaired by the citizenship question, businesses will have less ability to design and build stores and service locations that meet the needs of local communities. Inaccurate Census data will also affect the development and marketing of numerous products around the country."
The Department of Commerce, represented by U.S. Solicitor General Noel Francisco, has drawn nine supporting briefs. The smaller number is not surprising given the weight and respect generally accorded to briefs by the solicitor general. All nine come from conservative organizations, such as Citizens United, the Project on Fair Representation and Eagle Forum Education and Legal Defense Fund, as well as the Republican National Committee.
Some of these briefs contend the lower courts should have deferred to Commerce Secretary Wilbur Ross on his reasons for adding a citizenship question. And they argue Ross's decision was not "arbitrary and capricious" under the Administrative Procedure act.
William Consovoy, partner at Consovoy McCarthy Park, represents the Project on Fair Representation. He argues: "Adding the citizenship question would give States and localities the most complete dataset possible should they choose—as is their right under the Constitution—to draw districts based on eligible voters. The citizenship data also is needed to comply with and enforce Section 2 of the Voting Rights Act."
The Consovoy firm is fast becoming the go-to firm for conservative causes. Consovoy also represents President Donald Trump in the lawsuit filed Monday that will try to block a subpoena of his financial records by the U.S. House Oversight Committee. (Our colleague Ellis Kim has more on the case here.) |
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They Don't Call It 'Supreme' for Nothing
Every once in awhile, Supreme Court justices feel the need to tell the world that they really call the shots, no matter what lower courts or Congress say or do.
Such a supreme moment took place Monday during arguments in Food Marketing Institute v. Argus Leader Media, a hard-fought dispute over the meaning of the word "confidential" in Exemption 4 of the Freedom of Information Act.
Robert Loeb, partner at Orrick Herrington & Sutcliffe,argued for a narrow interpretation that would allow news media to obtain certain commercial data culled by the Department of Agriculture.
Loeb leaned heavily on National Parks & Conservation Association v. Morton, a 1974 D.C. Circuit precedent defining the exemption, which he said has been followed by eight other circuits and embraced by Congress when it enacted 29 statutes since 2001 that adopt the interpretation. In effect, Loeb said, Congress had amended the exception.
But that seemed to rub some justices the wrong way, as these skeptical comments from the bench demonstrate:
>> Justice Ruth Bader Ginsburg: "You're saying that the D.C. Circuit decision and then other measures using the same language stops this court from saying what the words of Exemption 4 mean?"
>> Justice Samuel Alito Jr.: "If there were a statute that says something has to be done within 30 days, and a court said 30 really means 50, and all the other courts fell in line, and Congress enacts statutes related to that—we would say, well, Congress has implicitly ratified that?"
>> Justice Neil Gorsuch: "The average person who's supposed to have fair notice of the statutes opens up the books and sees 30 days but, in fact, is supposed to know that it means 50 because a lot of district courts have said so?"
>> Justice Brett Kavanaugh: "Why, if we disagree with National Parks, the D.C. Circuit's decision, should we nonetheless follow it?"
The skepticism doesn't mean for sure that the court is ready to overturn National Parks, and Loeb gamely stuck by his argument: "This court has been deferential to Congress when it reenacts a statute and there is a uniform construction, as there was here in eight, nine different uniform circuits."
But the colloquy was yet another muscle-flexing reminder that the Supreme Court is boss.
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Supreme Court Headlines: What We're Reading
>> Justices Will Hear Major LGBT Workplace Cases, Testing Title VII's Scope. The U.S. Supreme Court on Monday agreed to decide whether the nation’s major workplace anti-bias law prohibits discrimination on the basis of sexual orientation and transgender status. The cases, closely watched by employers, consumers, civil rights groups, conservative and religious organizations, will draw the high court back into the culture wars amid the 2020 presidential election year. [ NLJ] The New York Times has more here, and The Washington Post here.
>> Justice Breyer Rejects Democratic Plan to 'Pack' Supreme Court: Nine Seats 'Is fine.' "Justice Stephen Breyer rebuffed a proposal to add more seats to the Supreme Court, saying instead that nine members 'seems to work.' 'I think nine is fine,' Breyer said during an event Monday. 'I’m not speaking about anybody’s proposal, but I’ve discovered that nine seems to work.'" [ The Washington Examiner]
>> Supreme Court Girds for Fight Over Trump Census Citizenship Question. "The nine justices will consider whether Commerce Secretary Wilbur Ross, whose department includes the Census Bureau, violated a federal law called the Administrative Procedure Act and the U.S. Constitution’s mandate to enumerate the nation’s population every 10 years. A ruling is due by the end of June." [ Reuters] The Washington Post has more here, and law professor Garrett Epps writes here at The Atlantic.
>> Amazon, Walmart, Others May Win Broad FOIA Disclosure Exemption. "The U.S. Supreme Court, hearing arguments in a case potentially impacting Amazon, Walmart and other leading retailers, seems primed to change Freedom of Information Act disclosures in a way that would please business." [ Bloomberg Law] Politico has more here: Supreme Court Leans Toward Restricting Access to Business Data.
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