NATIONAL LAW JOURNAL
Supreme Court Brief
POWERED BY LAW.COM
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Tony Mauro
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 Marcia Coyle
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The year 2017 sped by like one of the late Justice Antonin Scalia's famed trips across the 14th Street bridge. With Neil Gorsuch taking his seat in April, the Supreme Court is back in blockbuster mode with more to come in 2018.
We're closing out the year with this issue of the Supreme Court Brief and while we aren't offering visions of sugar plums, we've got lots of items to satisfy the inner SCOTUS nerd. A First Amendment challenge to mandatory bar membership has landed at the justices' door and is certain to spark both opposition and support. The solicitor general and the ACLU continue their court fights over immigrant teens seeking abortions and the government's allegations of unethical conduct by ACLU lawyers.
We'll recap our deep dive into diversity—or lack of—among high court clerks. And for last-minute holiday shoppers, we offer five "must-read" books for SCOTUS lovers. Let’s start off with some speculation about what Chief Justice John Roberts Jr. might, or might not say, in his New Year's Eve annual report.
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The Chief’s Year-End Report
Barring any surprises, the next we’ll hear from the Supreme Court is the chief justice’s annual year-end report, issued when so many of us are eagerly awaiting it—New Year’s Eve! In his 12 reports as chief justice, John Roberts Jr. has used the occasion discuss a wide range of issues, from judicial salaries and technological tardiness to Supreme Court ethics and budget constraints. This year, in the wake of the Alex Kozinski debacle, Roberts is under pressure to devote his report to reassuring judicial employees that they will be heard if the experience sexual harassment from federal judges or other court personnel. A group of legal scholars and Fix the Court wrote a letter urging Roberts to speak out against judicial misconduct and spell out procedures for dealing with it. “It is important that the judiciary be an outspoken champion for justice and equality,” the letter states. A worthy cause for sure, but not a slam-dunk for Roberts, who is generally glad not to make headlines—especially about subjects like sexual harassment. Besides, it has been Roberts’ usual habit to start off his year-end reports with an anecdote from Supreme Court history—such as his 2014 riff on the pneumatic tubes that once decisions to the court press corps. What clever anecdote could Roberts use on judicial misbehavior and scandal? Abe Fortas’s 1969 resignation under a cloud over payments he received outside his salary? William O. Douglas and his financial and marital shenanigans? Not likely. We’ll just have to see what develops. Maybe he’ll pay tribute to another suddenly retired judge: Richard Posner.
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Mandatory Bar Membership ChallengedThe conservative Goldwater Institute in Arizona is urging the Supreme Court to end mandatory bar membership and so-called opt-out bar fees on behalf of a Bismarck, North Dakota lawyer. The attorney, Arnold Fleck, represented by the institute's James Manley, argues that two recent high court decisions involving public sector unions reinforce his claim that mandatory bar memberships violate the First Amendment. Those two decisions—Harris v. Quinn and Knox v. Service Employees International Union—were written by Justice Samuel Alito Jr. and cast doubt on the continued viability of the court's 40-year old precedent upholding nonunion members' "fair share" fees under the First Amendment. Manley said the "deeper question" is whether mandatory bar associations can still be justified under the heightened scrutiny applied by the justices in Harris and Knox. He points out that 19 states allow attorneys to choose whether to join the bar association and "they're all managing to regulate attorneys." Don't expect the petition to go without strong opposition. In last term's First Amendment challenge to union "fair share" fees, the institute also urged the court, in an amicus brief, to end mandatory bar association membership and opt-out fees. But 21 former D.C. Bar presidents warned that step would harm regulation of the profession and improving legal services. ➤➤ We've posted our full story at Supreme Court Brief.
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Our Law Clerks Special Report
We find the clerk phenomenon at the Supreme Court pretty fascinating, and a lot of readers seemed to also. If you missed any story in our recent series, everything is posted here. The stories did not just deal with the persistent lack of diversity—both racial and gender—but also the feeder judges who recommend clerks to the justices, and unusual cohorts of clerks at places like Jones Day and The Boeing Company. Related stories of interest: a profile of the court’s first blind law clerk, a primer on how to become a clerk, Justice Clarence Thomas’s broader approach to recruiting clerks—and the unusual pathways some have taken to become clerks. Another highlight: Our conversation with Neal Katyal of Hogan Lovells, himself a former clerk for Justice Stephen Breyer. ➤➤ Listen to the Tony Mauro-Katyal conversation here. “We all bear some of the responsibility what these numbers are,” Katyal told Mauro. “One thing to get on the table for the conversation is the responsibility of law schools.” Also from Katyal: “We haven’t talked about this yet—but also religious diversity and sexual orientation also, I think, are two things that are really missing in the data and in the conversation.”
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On the Docket
The legal fight between Trump administration Solicitor General Noel Franciscoand lawyers for the American Civil Liberties Union over pregnant immigrant teens seeking abortions continues on several fronts. The justices now have before them the ACLU's response to Francisco's petition for review seeking to vacate a D.C. Circuit decision that allowed the teen known as "Jane Doe" to have an abortion and to consider imposing sanctions on her ACLU lawyers for alleged unethical behavior. Sidley Austin's Carter Phillips, counsel to the ACLU, told the high court in Hargan v. Garza: “The solicitor general has filed extraordinary and baseless complaints to distract from his own failure to act promptly in response to an adverse decision of the court of appeals.” Both sides have agreed, however, to make public redacted, non-record material supporting their positions and to put under seal unredacted materials. With two more immigrant teens now seeking abortions, Francisco has wasted no time in filing a request for a stay and/or a petition for certiorari in the event the government once again loses before the U.S. Court of Appeals for the D.C. Circuit. A three-judge panel recently granted a temporary administrative stay of a district court order permitting the abortions. ➤➤ Two former solicitors are facing off. Former Bush II Solicitor General Paul Clement of Kirkland & Ellis and former Obama Solicitor General Donald Verrilli Jr.of Munger, Tolles & Olson are on opposite sides of a First Amendment challenge that seems headed to the Supreme Court. Clement is representing the Archdiocese of Washington in its challenge to the no-religious- advertisements policy of the Washington Metro Area Transit Authority. He argues that WMATA's refusal to advertise the archdiocese's "Find the Perfect Gift" Advent campaign on its buses was unconstitutional viewpoint discrimination. The district court disagreed and Clement is seeking an injunction pending appeal and an expedited appeal on the merits from the D.C. Circuit. Verrilli counters that a municipal transit system is not a traditional public forum open to speech on all subjects. WMATA, he argues, acted constitutionally in closing its advertising space to religious, political and advocacy-oriented ads. Keep an eye on this one.
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In Time For The HolidaysThe genre known as Supreme Court fiction seemed to take a sabbatical this year, with few new thrillers involving the nation’s highest court. But in the non-fiction category, here are must-read books for Supreme Court aficionados: ➤➤ The RBG Workout: Written by Justice Ginsburg’s trainer Bryant Johnson—viewed by some as the most important person in America— this book will inspire (or shame) you with a vigorous workout schedule that people half her age and twice her size find daunting. ➤➤ Table for 9: Hot off the presses, this book is a fascinating peek into life—which of course involves eating—at the Supreme Court. The photos, the recipes, the anecdotes reveal the camaraderie among justices, as well as one unexpected truth: Some justices are better at writing decisions than they are at cooking. It also includes the court’s fabled eggnog recipe. ➤➤ The Judge: You might not think the diabolical Niccolo Machiavelli’s book The Prince would have much in common with the U.S. Supreme Court, but fascinating—and unflattering—parallels are drawn in this unique think-outside-the-box book. It assumes the justices are political. Shocking! ➤➤ Scalia Speaks: Love him or hate him, Justice Antonin Scalia could turn a phrase. Many of his best turns appear in this compilation of previously non-public speeches. Topics include turkey hunting, Irish humor, and oh yes, the Constitution, the law, and the legal profession. ➤➤ Nino and Me: This memoir by Bryan Garner, the legal language expert who coauthored three books with Scalia, won’t be available until January 16, so mark the date—or pre-order it. It will make news. Garner calls it “the most up-close portrait of a U.S. Supreme Court justice ever written,” and by profession, he does not toss superlatives around lightly.
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Thanks for reading, and have a great holiday. We'll see you in the new year.
—Tony and Marcia
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