A Repeat Player Steps Up | Justice Thomas Gets Giddy | SG Stands Firm … Even in Error

NATIONAL LAW JOURNAL Supreme Court Brief POWERED BY LAW.COM

Tony Mauro Marcia Coyle Jan 10, 2018

We've teed up for you today's sole argument at the Supreme Court—the next in a series of voting rights cases that keep making their way to the justices. A switch in lawyers puts veteran Paul Smith in the lead advocacy role.  Also, we’ve previewed a gotta-watch interview of Justice Clarence Thomas conducted by none other than his wife Ginni. We wrap things up with a reprise of Tuesday’s Fourth Amendment arguments, plus a look at a confession of error by the U.S. solicitor general that caught the justices’ eyes. Have comments, suggestions or a different take on the news? Write to us at mcoyle@alm.com or tmauro@alm.com. We welcome your feedback!

Ready or Not … Here He Goes Again! One advantage of a Supreme Court bar is the ability of veteran members to step into a case, if needed, with very little notice. Voting rights advocate Brenda Wright, vice president of policy and legal strategy at Demos, was planning to argue Wednesday's Ohio voter registration case until medical reasons forced her withdrawal. Former Jenner & Block partner Paul Smith will carry the flag for the plaintiffs. Smith, vice president of litigation and strategy at Campaign Legal Center, is well-known for successfully arguing the landmark Lawrence v. Texas, which struck down state anti-sodomy laws. Still, voting rights have been part of his legal portfolio for many years. Wednesday's argument is his second this term involving that issue. In October, Smith argued the high profile, partisan gerrymander challenge from Wisconsin. What's the main issue? Smith will argue that Ohio's process for updating its voter registration rolls is really a purge that violates the National Voter Registration Act, which prohibits removing a registered voter for failure to vote. What process does Ohio use? Voters who fail to vote for two years are sent a notice asking for confirmation of address. If they fail to return the notice and fail to vote in the next two regular federal elections, they are removed from the rolls. Wednesday's case—Husted v. A. Philip Randolph Institute—offers more than the switch in counsel on its way to argument. The Trump Administration's Department of Justice abandoned the Obama Administration's support of the Ohio challengers in the lower court and now defends the state's process for updating its voter registration rolls. Solicitor General Noel Francisco will share argument time with Ohio Solicitor General Eric Murphy. What's at stake? Ohio is a battleground state in national elections, so every vote counts. One analysis, cited by the challengers, found that 30,000 voters have been removed for failure to vote since 2012—a larger number than President Barack Obama's margin of victory that year.

"Anticipation Is Building" That’s Marcia Coyle commenting on the Supreme Court’s slow return to business in 2018. The court issued no decisions this week and no new cases were added to the argument docket, which has SCOTUS-watchers practically twitching. “Have no fear,” Marcia says. “The court has been in this position before.” New cases will be added soon, including (almost certainly) the challenge to President Trump’s latest travel ban. ➤➤ Click below to watch two-minute video.

A Simple Rule, Please!  There’s nothing like a Fourth Amendment argument to inspire a stream of creative hypotheticals by the justices. But whether those hypotheticals in Tuesday’s Fourth Amendment arguments provide the path to the simple, clear rule that several justices were seeking, only time—and the decision—will tell. In Byrd v. United States, Robert Loeb of Orrick, Herrington & Sutcliffe offered his “bright line rule” on when an unauthorized driver of a rental car has a reasonable expectation of privacy in the car: “Unless it’s a stolen car or a criminal trespasser, there is the ability to invoke the Fourth Amendment.” But in this case, Terrence Byrd, who had body armor and heroin in the rental car trunk, violated the contract terms in the rental agreement, noted Justice Elena Kagan, and engaged in conduct that frustrated law enforcement. “Why should society recognize this conduct as reasonable?” she asked. Loeb replied: “Because society recognizes when you put your personal items in a locked trunk, you have an expectation of privacy.” Not surprisingly, Assistant to the Solicitor General Eric Feigin argued a different rule: The driver must have “an affirmative connection to the rental car.” As an unauthorized driver, Byrd had no connection to the car, and his fiancée, the authorized driver on the rental agreement, had no authority to give him permission to drive it. And a path to a simple rule also seemed difficult to find in the second Fourth Amendment argument of the day—Collins v. Virginia. The justices explored the boundaries of two Fourth Amendment doctrines intersecting in Collins: the automobile exception to the amendment’s warrant requirement, and the warrant requirement for searches of houses and their curtilage. “How far are we committed by Jardines to treat the curtilage exactly as we would the home?" asked Justice Kagan, pointing out that the motorcycle was plainly visible. McGuireWoods' Matthew Fitzgerald said the court’s precedents say to treat the curtilage as the home. “The automobile exception doesn’t apply to a vehicle found in the curtilage of a home,” he argued. But Virginia Acting Solicitor General Trevor Cox countered that he doesn’t read those precedents as requiring the curtilage and the home to be treated the same for all purposes. “If it’s not part of the dwelling,” he argued, the automobile exception applies.

Justice Thomas Gets Giddy with Ginni: Conservative commentator Ginni Thomas grilled 340 national and world leaders for The Daily Caller before she asked her husband Justice Clarence Thomas for an interview. He said yes, with apprehensions, but it resulted in a riveting 35-minute conversation that was by turns funny, intimate and serious—well worth watching. Yes, there was some “cringe-y stuff” as colleague Jenna Greene put it in her Daily Dicta column for Litigation Daily. But sometimes cringe-y equals priceless. One such moment came when Ginni asked the justice to list the blessings of his life at age 69. “Reading is a blessing,” he said, and went on to extol Boswell’s ‘Life of Samuel Johnson,’ a famed biography that dates back to 1791. Ginni was off-camera, but she must have been rolling her eyes, because he melted into giddy laughter. “I’ll put it on my list, Justice,” Ginni told him. “I’ll lend you my copy,” Thomas laughed. “As long as you underline it for me,” she said as Thomas almost lost it. “What about Adam Smith’s ‘Wealth of Nations?’” he joshed. “I have a life to live,” she replied. “God, you make me laugh,” Thomas told her. Not your average interview with a Supreme Court justice. The conversation was not all laughs. Ginni asking him several different ways about the hardships and criticisms he has faced through his life. Thomas, who once might have reacted with bitterness, seemed serene in his answers—at peace with his detractors, cherishing his friends, especially his law clerks. Thomas said he has learned “not to focus on whether you are praised or criticized. It doesn’t matter. What really matters is what you are called to do.” Ginni asked him what lessons can be learned from being a target of “ritual defamation,” a term that has been used by Alabama Senate nominee Roy Mooreand other conservatives to describe persistent attacks from those who want to stifle independent views. Thomas’s calm response: “When you react negatively, you allow them to define you.”

Confessing Error But…  You might think that when the government says its argument on the key issue in a criminal defendant’s appeal was wrong, that the defendant would get another shot at making his case. Well, if you’re the government, it isn't necessarily so. In November, Solicitor General Noel Francisco told the Supreme Court that the government was wrong when it argued in the lower court in Jimmie White’s drug case that time spent in plea negotiations is automatically excludable under the Speedy Trial Act. The confession of error represented a reversal of a decades-old position, one that the Sixth Circuit followed in ruling against White’s appeal. Francisco said the earlier position could not be squared with the Supreme Court's 2010 decision in Bloate v. United States. Nevertheless, Francisco urged the justices to deny White’s petition for certiorari. But the high court on Monday had other plans. It granted White’s petition, vacated the Sixth Circuit judgment, and remanded the case for further consideration in light of Francisco’s confession of error. Vinson & Elkins’ Jeremy Marwell, counsel to White, sharply criticized the government’s opposition to the petition while confessing error. He wrote in his reply brief that the government’s brief was an “extraordinary document.” It concedes a circuit split exists, he wrote, and “it is so certain—for now—that its long-held position is wrong that the government ‘does not intend in the future to press’ it, and released (unspecified) guidance instructing (unspecified) federal prosecutors not to do so. Yet, remarkably, the government counsels this court to take no action although the Sixth Circuit’s sole basis for ruling ‘is incorrect.’” The government offers “a welter of minor (and baseless) objections” that only reveal “how determined the government is that the Department of Justice, and not this Court, control the pace at which courts correct this widespread legal error.” Tell us what you really think, Mr. Marwell.

SCOTUS Law Clerk Diversity, Revisited The debate over diversity among SCOTUS law clerks continues. In a column for USA TODAY, where I (Tony here) researched law clerk demographics 20 years ago, I recounted the latest data, which reveals that diversity is still an elusive goal at the high court. The column triggered many comments from the newspaper’s national audience, most of them equating a push for diversity with affirmative action. ● “So you want affirmative action in the Supreme Court? That will bring in better staff? Explain,” one reader said. ● “Just hire the most qualified without regard to race, color, or creed. Anything else is despicable discrimination,” said another. What do you think? Let us know at tmauro@alm.com or mcoyle@alm.com.  TRENDING STORIES NY Lawmakers Ask Congress to Pass Marijuana Law Following Sessions Pot Reversal NEW YORK LAW JOURNAL Greenberg Traurig, the G.O.A.T. of Law Firms? THE AMERICAN LAWYER Kirkland Raids Another Law Firm to Expand in Boston THE AMERICAN LAWYER Brooklyn Assemblywoman Indicted for Allegedly Bilking City Council, FEMA NEW YORK LAW JOURNAL Milberg Joins Forces With Mass Torts, Personal Injury Firm THE AMERICAN LAWYER