NATIONAL LAW JOURNAL
Supreme Court Brief
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Tony Mauro
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Marcia Coyle
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The final argument cycle of the 2018-2019 term begins today, and we spotlight some new and notable items from the latest hearing list. Plus: SG Noel Francisco wants the court to take up a cross-border shooting case, and scroll down for our Supreme Court headline roundup: The court disputes the claim Justice Ginsburg has a 100-year restriction on her papers, and we've got some links about today's big trademark case—but don't expect obscenities to fly. 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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Advocate Spotlight: Who's Arguing This Cycle
We’re in the home stretch! The final oral argument cycle of the current term begins today, and it is truly an interesting mix of cases and advocates.
It begins today with a marquee dispute over profanity (Iancu v. Brunetti) and ends with a lower-profile case over bankruptcy on April 24. (Taggart v. Lorenzen.)
Some notable data points about the upcoming cases and the lawyers arguing:
>> Only six of the 34 lawyers arguing in April are women. And of those six, only two are in private practice: Hogan Lovells partner Colleen Roh Sinzdak and Mayer Brown’s Nicole Saharsky, co-head of the firm's Supreme Court and appellate practice. In a 2017 tweet, Sinzdak wrote, “It is tough to be a big law lady lawyer, but working in the @HoganLovells appellate group makes it much, much easier.”
>> Saharsky (at left), for her part, will be the last lawyer to argue this term on April 24 in the bankruptcy case Taggart v. Lorenzen. It is her first Supreme Court argument since her time at the solicitor general’s office and then at Gibson, Dunn & Crutcher before joining Mayer Brown last November. It will also be her 30th career high court argument—more arguments there than any other female in the last decade.
>> Dallas solo practitioner Daniel Geyser will be arguing twice this cycle: today in Emulex v. Varjabedian, a securities fraud case, and on April 24 in Taggart v. Lorenzen, the bankruptcy case. They’ll be his third and fourth argument this term, and his seventh and eighth, career-wise.
What’s it like for a solo to prepare for two Supreme Court arguments in the space of 10 days? Geyser’s reply: “While I do have a solo practice, I wouldn’t say I’m doing this alone. For each case, I’ve been lucky to team up with terrific co-counsel, and my colleagues in the SCOTUS bar are always amazingly generous in devoting their time to moots, etc. So in a real sense, each case has its own elite ad hoc team.”
>> By our count, four former U.S. solicitors general will be arguing, along with the current one, Noel Francisco: Gregory Garre of Latham & Watkins in Emulex v. Varjabedian, the securities case; Paul Clement of Kirkland & Ellis in Parker Drilling Management Services v. Newton, on overtime rules for drilling rigs; Neal Katyal (acting) of Hogan Lovells, in McDonough v. Smith, a test of the statute of limitations in civil rights claims; and Barbara Underwood (acting) now solicitor general of New York state, in Department of Commerce v. New York, the contentious case of the proposed citizenship question for the 2020 Census.
On April 23, Francisco will argue before Underwood in the census case, which has been allotted 80 minutes for argument, unlike the usual 60. The court also has granted argument time to U.S. House general counsel Douglas Letter, who will make his second-ever Supreme Court argument, as we reported Friday.
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SG Urges Court to Hear Border-Shooting Case
U.S. Solicitor General Noel Francisco (above) has urged the justices to take a second look next term at a case involving the cross-border fatal shooting of a Mexican teen. The dispute takes on even greater relevance as the Trump administration weighs closing the Mexico border, and as the administration's anti-asylum policies are tangled up in the courts.
The high court has two petitions that ask whether the families of Mexican teens killed by U.S. Border Patrol agents can pursue damages for alleged Fourth and Fifth amendment violations for which there is no alternative legal remedy: Hernandez v. Mesa, and Swartz v. Rodriguez.
The U.S. Court of Appeals for the Fifth Circuit refused to extend so-called "Bivens" damages in Hernandez; the Ninth Circuit reached the opposite conclusion in Swartz. The Swartz petition also involves a qualified immunity issue tied to the border agent who killed the immigrant. The agent was charged with murder and acquitted.
Stephen Vladeck of the University of Texas School of Law is representing the parents of Sergio Hernandez Guereca, who was 15 when a U.S. border agent fatally shot him.
In 2017, the high court unanimously reversed the en banc Fifth Circuit's decision that border agent Jesus Mesa was entitled to qualified immunity on the Fifth Amendment claim, but a majority sent the damages question back to the appellate court to consider it in light of a separate decision that term: Ziglar v. Abbasi.
Francisco on April 11 recommended that the high court grant review in Hernandez to resolve the circuit split. He said the Fifth Circuit "correctly declined" to extend damages to an injury suffered by a foreign citizen in foreign territory.
Hernandez, Francisco said in his brief, "cleanly presents the threshold Bivens issue, and the en banc Fifth Circuit considered whether a Bivens remedy is available for both the Fourth and Fifth Amendment claims." But Ninth Circuit, he added, only addressed the Fourth Amendment context and that decision also raises a "complex" question about qualified immunity.
"Part of why these cases are so important is because they’re about whether courts can provide remedies for excessive force by @CBP officers at the border," Vladeck tweeted after the government filed its brief. "Given @realDonaldTrump’s recent statements, this is an increasingly critical context for meaningful judicial accountability."
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Supreme Court Headlines: What We're Reading
• F-words and T-shirts: U.S. Supreme Court Weighs Foul Language Trademarks. "The nine justices hear arguments in a free-speech case brought by Los Angeles-based clothing designer Erik Brunetti. His streetwear brand 'FUCT'—which sounds like, but is spelled differently than, a profanity—was denied a trademark by the U.S. Patent and Trademark Office." [ Reuters] The Washington Post has more here. Don't expect profanities to fly today, as we reported here.
• 100-Year Restriction on Ginsburg Papers 'Not True,' Supreme Court Says. A spokesperson for the U.S. Supreme Court disputed an author's published claim that there's a 100-year restriction on the papers of Justice Ruth Bader Ginsburg. [ NLJ]
>> EPA Clean Water Case, Once at Supreme Court, Could Make New Splash. "The Sackett saga is not over, and may yet become another, even stronger milestone for opponents of regulatory power, now that Trump administration appointees have joined lower courts, the Supreme Court, and regulatory agencies." [ NLJ]
• Inside Trump Administration's Mysterious Plan to Secure a 2020 Census Citizenship Question. "This is the story of that convoluted decision-making process, as recounted by three federal district court judges who presided over separate trials in New York, California and Maryl and. Now it's headed to the Supreme Court." [ USA Today]
• Roger Stone Cites Barr, Kavanaugh Writings in Last-Ditch Effort to Dismiss Mueller Indictment. "Stone cites Kavanaugh in a separate filing seeking to dismiss his case, quoting a 1998 law review article that figured prominently in Kavanaugh's confirmation hearings last year. In the article, Kavanaugh argues that any independent counsel investigating a president would inherently become politically toxic and the possible indictment of a president would be 'disabling' for the federal government." [ Politico]
• Former Justice Kennedy Says Democracy Is 'Slipping Away'. Kenendy, speaking at Duke University last week, said: “Democracy is slipping away, in part by deliberate attack.” The Bolch Judicial Institute of Duke Law School awarded Kennedy the first annual Bolch Prize for the Rule of Law. [ Bloomberg Law]
• Supreme Court May Get to Decide Fate of Obamacare Before 2020 Election. "The new time frame—with arguments in early July—means that the fate of Obamacare could come before the Supreme Court next term, with an opinion rendered by June of 2020 in the heart of the presidential campaign." [ CNN]
• Gorsuch Charts Course as Originalist With Independent Streak. "Justice Neil Gorsuch has delivered almost precisely what conservatives were hoping for over his two years on the U.S. Supreme Court, even though his principles occasionally take him in other directions." [ Bloomberg Law]
• Progressive Groups Ask Congress to Investigate Brett Kavanaugh. "More than two dozen progressive groups are sending a letter to Congress on Thursday urging an investigation into Justice Brett Kavanaugh's confirmation process and the numerous controversies around it." [BuzzFeed News] |
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