NATIONAL LAW JOURNAL
Supreme Court Brief
|
Tony Mauro
|  |
|
 |
Marcia Coyle
|
|
|
Happy Wednesday—and welcome to Supreme Court Brief. Oral arguments this term have ended, and that means the return of the "prom party" for SCOTUS advocates. We've got the details below. Plus: the latest effort to extend 'Janus' failed—but another challenge is in the wings. And scroll down for our report on a tribute to the life and legacy of Barbara McDowell. Feedback is welcome, and 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.
|
|
Georgetown ‘Prom Party’ Celebrates End of Supreme Court Arguments
The feeling of relief was palpable at Georgetown University Law Center on April 25, the final day of oral arguments in the current term. As usual, Georgetown’s Supreme Court Institute celebrated the occasion with what’s been called the Supreme Court bar’s prom party.
Justices Elena Kagan and Brett Kavanaugh were spotted, along with the familiar faces of lawyers from the solicitor general’s office and the private Supreme Court bar, including #AppellateTwitter aficionados.
Irv Gornstein, executive director of the institute, thanked the lawyers who helped populate moot courts at Georgetown for 70 out of the 71 argued cases this term.
Then, Sidley Austin partner Virginia Seitz (at left) introduced Carter Phillips who, with 87 Supreme Court arguments under his belt, was being honored by the institute. Seitz praised Phillips as someone who “doesn't take himself too seriously. He's a happy camper, a cheerful warrior,” and someone who is quick to give credit to colleagues and adversaries.
Phillips made brief remarks, recalling that when he first argued at the court in the early 1980s, there was little need for the moot courts that Georgetown and other institutions organize for Supreme Court practitioners.
“The reason they didn't do moot courts is that if you gave a 30-minute oral argument, the chances were pretty close to even that you might get five or six questions in the 30 minutes,” Phillips said. “There wasn't much point in trying to moot you because you couldn't really guess very well what the questions were going to be like. Of course, Justice Scalia went on the court [in 1986] and it went from five to ten questions in 30 minutes to five to ten questions from him in the first 30 seconds.”
|
|
Pushing Boundaries of Union-Fee Blockbuster
An attempt to extend the justices' union-fee ruling last term in Janus v. AFSCME failed on Monday—at least for now. Another challenge is pending.
The high court denied review in Uradnik v. Inter Faculty Organization. The petition, brought by The Buckeye Institute, urged the justices to find that a state violates the First Amendment when it recognizes a union as the "exclusive representative" of public-sector employees who refused to join the union.
BakerHostetler partner Andrew Grossman represented Kathy Uradnik, a college professor, in the petition. The case, which came to the high court after the U.S. Court of Appeals for the Eighth Circuit affirmed the denial of a preliminary injunction, returns to the district court for trial on the merits.
But another Eighth Circuit petition—Bierman v. Dayton—also from Minnesota and decided by the appellate court shortly before Uradnik, now raises the exclusive representation issue but adds a wrinkle: Is it constitutional for the government to compel individuals who are not public employees (here Medicaid providers) to accept an exclusive bargaining representative?
The lawyer who won the Janus ruling— William Messenger of the National Right to Work Defense Foundation—represents a group of the providers. Scott Kronland of San Francisco's Altshuler Berzon represents the union, SEIU Healthcare Minnesota, and Minnesota Solicitor General Liz Kramer is counsel for the state.
The Bierman petition, listed for the justices' May 9 conference, has drawn amicus support from a number of conservative legal and business groups, including the Pacific Legal Foundation, The Buckeye Institute, NFIB Small Business Legal Center, Goldwater Institute and Cato Institute.
|
|
Remembering Barbara McDowell
Ten years after she died of brain cancer in 2009, Barbara McDowell’s legacy resounds within the Supreme Court community.
Her friends and admirers gathered at Drinker Biddle & Reath's Washington office April 23 to mark the tenth anniversary of her death, celebrate her life and support the Drinker Biddle Barbara McDowell High Impact Pro Bono Initiative led by her husband Jerry Hartman, now a retired partner at the firm.
From 1994 to 2004 as an assistant to the solicitor general, McDowell (pictured above, from 2004) argued 18 cases before the high court—a large number then and now, especially among female advocates.
Judge Patricia Millett of the U.S. Court of Appeals for the D.C. Circuit, who worked with her at the SG’s office, said in remarks at the celebration that when McDowell left the office, “She could have had just about any job she wanted and just about any salary she wanted.” Instead of heading to BigLaw, McDowell became the first director of the Appellate Advocacy Program at the Legal Aid Society of Washington, D.C.
Among the veterans of the solicitor general’s office in attendance, besides Millett, were Jeffrey Minear, counselor to Chief Justice John Roberts Jr., Jeffrey Lamken of MoloLamken, Douglas Hallward-Driemeier of Ropes & Gray, and Matthew Roberts, now special counsel to the Sentencing Commission.
Roberts, who clerked for Justice Ruth Bader Ginsburg when she was on the D.C. Circuit, conveyed the justice’s memories of McDowell:
"Whether arguing a complex case before the Supreme Court, entertaining a Shakespeare Theater audience at a moot court, or leading the appellate advocacy endeavors of the Legal Aid Society, Barbara McDowell was an advocate to appreciate and applaud. It is fitting that a foundation has been established in her memory. I join legions in celebration of the foundation's 10th anniversary. May it continue to thrive in its efforts to aid those most in need of caring advocates committed to promoting justice that is equal and accessible to all."
Roberts and Millett both recalled one of McDowell’s best-known Supreme Court arguments in the 1999 case Minnesota v. Mille Lacs Band of Chippewa Indians. She immersed herself in the case by visiting the tribe, and famously smoked a peace pipe with her clients shortly before she argued and won the case.
|
|
Supreme Court Headlines: What We're Reading
• What the Supreme Court Is Doing Behind Closed Doors. "In deciding what to decide, through internal rules not made public but described here, they can often influence the nation's law as much as any signed opinion." [ CNN]
• Paul Weiss Expands New SCOTUS Practice as More Follow Shanmugam.Former Williams & Connolly associates Stacie Fahsel, Joel Johnson, William Marks and Benjamin Moskowitz are now with Paul, Weiss, Rifkind, Wharton & Garrison in Washington, while Masha Hansford joined the firm as of counsel. It's been three months since Kannon Shanmugam left Williams & Connolly to launch a Supreme Court and appellate practice at Paul Weiss. [ NLJ]
• David Boies, Judge Posner’s Pro Bono Case Stops at Supreme Court. "Big Law partner David Boies and retired federal appeals court judge Richard Posner fell short on Monday in a pro-bono case at the U.S. Supreme Court. The justices decided not to hear William C. Bond’s appeal about access to justice for litigants representing themselves." [ Bloomberg Law]
• Supreme Court Asks SG's Views on Oracle-Google Copyright Case. Our colleague Scott Graham reports: The U.S. Supreme Court just doesn’t seem to know what to make of the titanic copyright clash between Oracle Corp. and Google LLC over the Java application programming interfaces, or APIs. The high court asked the solicitor general’s office to weigh in for a second time on Google v. Oracle, which Google calls “the copyright case of the century.” [ NLJ]
• The Three-Letter Word that Triggered a Revolution. "Because of sex. Over the past 55 years, that single three-letter word has had momentous legal and social consequences for American life that the man who inserted it into the 1964 Civil Rights Act on a wintry Saturday morning could never have imagined. And now that the Supreme Court has agreed to decide whether that landmark law forbids employment discrimination based on sexual orientation and gender identity, the adaptive power and enduring meaning of that plain little word is about to be tested once more." [ The Atlantic]
• The Supreme Court Can't Allow Trump to Weaponize the Census. "Litigation over the inclusion of a citizenship question has raised significant constitutional concerns. It has also clearly shown that the Commerce Department violated the Administrative Procedure Act in failing to appropriately test its proposed change to the census questionnaire," Covington & Burling's Eric Holder, a former U.S. attorney general, writes. [ The Washington Post]
• Roberts Delivers Latest Pro-Arbitration Ruling for Divided Court. The ruling in Lamps Plus v. Varela was the second pro-arbitration ruling this term, joining Schein v. Archer and White Sales in the Supreme Court’s longstanding trend of strengthening the Federal Arbitration Act against attack by consumer groups that view arbitration as a one-sided process working against employees. [ NLJ] The New York Times has more here.
• Supreme Court Adopts Rules Changes Aimed at Modernization. "The U.S. Supreme Court adopted amendments to federal appellate and evidentiary rules intended to make them more modernized and user-friendly. These amendments will take effect on Dec. 1, unless Congress enacts legislation to the contrary." [ Bloomberg Law]
• U.S. Supreme Court Hears Dispute Over Debt Collection Violations. "The nation’s highest court will decide soon whether debt collectors should have more leeway to fight steep fines for pursuing collections even after a consumer used bankruptcy to make that debt disappear. Consumer advocates worry the case could weaken protections for Americans that file for bankruptcy." [ The Wall Street Journal] |
|
|
Comments
Post a Comment