NATIONAL LAW JOURNAL
Supreme Court Brief
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Tony Mauro
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Marcia Coyle
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The justices are in their second "quiet" week before beginning their final round of oral arguments on April 15. Did the title of Justice Neil Gorsuch's forthcoming book ring any bells? Plus: A major religion-clause opinion by the late Justice Antonin Scalia is under attack in a new petition. Scroll down for headlines, including Jeff Wall's recent remarks at Princeton. Tips and feedback welcome: Contact us at tmauro@alm.com and mcoyle@alm.com, and follow us on Twitter at @Tonymauro and @MarciaCoyle. Thanks for reading!
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Gorsuch’s Book Title, Borrowing from History
Soon after we reported last week that Justice Neil Gorsuch is writing a book titled “A Republic, If You Can Keep It,” we learned yet again the lesson that at the high court, there is (almost) nothing new under the sun.
We were reminded, thanks to a tweet by law prof John Q. Barrett, that the late Chief Justice Earl Warren wrote a book with the same title in 1972. Benjamin Franklin coined the phrase in 1787 when he was asked after the Constitutional Convention whether we had a republic or a monarchy. His answer was, “a republic, if you can keep it.”
So, with Gorsuch’s September book release five months away, is there a copyright problem here?
His publisher did not respond to a query on this point, but the short answer is no.
We asked copyright experts their thoughts on Gorsuch’s book title:
>> “I think that, because someone else originally said it hundreds of years ago, perhaps the [Warren] book was sort of borrowing from that. I guess the argument could be made that, ‘hey, you can borrow from history again.’ I think that attenuates the risk.” — Keyonn Pope, partner at Reed Smith and member of its intellectual property group.
>> “Generally speaking, book titles also aren't subject to trademark protection. The one exception is when you have a series of books like Harry Potter that kind of take on a secondary meaning of their own, so people identify those as more or less a brand. At least in bookstores, if anybody goes to those anymore, they organize books by author rather than title, so if you're looking for the latest Neil Gorsuch book, you're not going to be confused.” — Jason Bloom, partner and head of Haynes and Boone copyright practice group.
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Another Wedding Cake Petition, With a Twist
Are the high court's newest originalists—Justices Neil Gorsuch and Brett Kavanaugh—ready to overturn a major religion decision by one of the court's most acclaimed originalists, the late Justice Antonin Scalia?
That unusual scenario may become a distinct possibility if the high court grants review in a follow-up case—with a twist—to last term's Masterpiece Cakeshop v. Colorado Civil Rights Commission.
The case Klein v. Oregon Bureau of Labor and Industries has similar facts: a baker refused to make a custom wedding cake for a same-sex couple because of his religious belief that marriage is between a man and woman. The Oregon Court of Appeals, like the Colorado Court of Appeals, ruled that the baker violated the state's public accommodation law.
In addition to raising First Amendment speech and free exercise claims, Adam Gustafson, partner at Boyden Gray & Associates, urges the justices to overrule Scalia's majority opinion in Employment Division v. Smith. That 1990 decision said neutral laws of general application are constitutional even if they prohibit a core practice of a person's religion—in this case, the use of peyote.
Scalia said that allowing exceptions to state laws or regulations affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind."
Gustafson, pointing to last term's 5-4 decision overruling the four-decades-old union fee precedent, Abood v. Detroit Board of Education, argues that the factors leading to that decision also support overruling Smith.
As we reported here in January, four justices, led by Justice Samuel Alito Jr., suggested they were open to revisiting Smith in a cert denial statement in a petition that involved a high school coach's public prayer on a football field (Kennedy v. Bremerton School District).
Alito, joined by justices Clarence Thomas, Gorsuch and Kavanaugh, said that in Smith, "the court drastically cut back on the protection provided by the Free Exercise Clause. In this case, however, we have not been asked to revisit [this decision]."
Those justices could provide the four votes needed to grant review in the Klein case. And there may even be a fifth vote: Justice Stephen Breyer. In a 1997 decision, Breyer said the Smith decision should be reconsidered.
Oregon Solicitor General Benjamin Gutman argues there is no sound basis for overruling Smith. He writes, "In the nearly three decades since Smith, the state and federal courts have relied on Smith’s standard in evaluating free exercise challenges to state law. Re- visiting that standard would have a profound impact on settled law around the country, an impact that petitioners have not justified."
Originalism scholar Michael Ramsey of the University of San Diego Law School wrote on his Originalism blog back in January that if the court takes up an attack on Smith, it will "surely involve appeals to original meaning."
The Klein petition has been distributed five times for the justices' private conference, the latest for the April 12 conference, with orders likely on April 15. |
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Supreme Court Headlines: What We're Reading
>> U.S. Deputy Solicitor General Discusses Upcoming Supreme Court Cases. The Justice Department's Jeffrey Wall (above), principal deputy solicitor general, recently spoke at Princeton about the SG's office, trends in the law and what's coming up. “I’m not going to say consultation with the president never happens, but it’s very, very rare,” Wall said at one point. And another point he made, about challenges to executive authority: “The tools you forge today will be used against you tomorrow. I don’t think Republican lawyers in red states will forget this when a Democrat takes the White House.” [ Princetonian]
>> Gorsuch Will Share 'Personal Stories,' From Upbringing to Confirmation, in New Book. Described as “a rich collection of reflections from the youngest U.S. Supreme Court justice,” the book will include eight original essays as well as a collection of Neil Gorsuch speeches and writings. “Gorsuch shares personal stories that have shaped his life and outlook, from his upbringing in Colorado to his 2017 Supreme Court confirmation process.” [ NLJ]
>> 5th Circuit Strikes Gibson Dunn's Pro-Obamacare Brief for Recusal Issue. The U.S. Court of Appeals for the Fifth Circuit said Gibson, Dunn & Crutcher's pro-Obamacare brief would have caused a judge to be disqualified. The court did not name the judge, or judges. James Ho (at left), the former Gibson Dunn appellate vet, was confirmed to the Fifth Circuit in 2017, and his wife is an appellate partner there. The Fifth Circuit's order cited newly amended Rule 29 of the federal rules of appellate procedure. [ NLJ]
>> Breyer and Alito, Despite Stock Ownership, Say Recusal Was Not Required. Justices Stephen Breyer and Samuel Alito Jr. said they did not need to recuse themselves from participating in the recent cert denial of a case in which one of the parties was owned by United Technologies, a company whose stock they hold. [ NLJ]
>> Barnes & Thornburg Hires Former Michigan Solicitor General. A former Michigan solicitor general, Aaron Lindstrom, has joined the Grand Rapids, Michigan, office of Barnes & Thornburg. Michigan has named Fadwa Hammoudas the state's new solicitor general. [ Grand Rapids Business Journal]
>> Justice Dept. Faces Pressure to Resist Appealing Vietnam Vets' Landmark Victory. SG Noel Francisco is weighing a challenge to a Federal Circuit ruling that would open a door to hundreds of millions of dollars in claims from Navy veterans who served in the territorial waters of Vietnam. [ NLJ]
>> ‘Kick Kavanaugh Off Campus': Students Decry George Mason’s Decision to Hire Supreme Court Justice. "The contest over Kavanaugh’s nomination became a flash point in the #MeToo movement, as well as an illustration of the polarization and distrust poisoning American politics. Now, the dispute at George Mason has become the latest front in the campus culture wars, reflecting broader upheaval over sexual violence, political correctness, free speech and sensitivity." [ The Washington Post] |
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