SCOTUS in the House | #GorsuchStyle | Election Law Tsunami

NATIONAL LAW JOURNAL Supreme Court Brief POWERED BY LAW.COM

Tony Mauro Marcia Coyle Jan 31, 2018

Ah, no rest for the weary! The justices are in week two of their winter break but that hardly slows the wheels of litigation. While federal lawmakers are fighting over Russian involvement in the 2016 elections, state lawmakers, with an eye to the 2018 elections, are asking the high court to intervene in their battles over judicial decisions invalidating their redistricting plans as racial or partisan gerrymanders. We have an update on the not-so-quiet winter break. And veteran Supreme Court advocate Paul Smith offers his thoughts on the election law tsunami in our video—take a look!  Plus, we recap why it ain't easy being Gorsuch. (Scroll down for a peek at his mood during last night's State of the Union.) What are you watching while the court's on break? Let us know at tmauro@alm.com and mcoyle@alm.com.

SCOTUS in the House

In the end, only four justices attended President Donald Trump’s first State of the Union address Tuesday night. Justice Ruth Bader Ginsburg’s absence was alreadywidely noted, but there were question marks about some of the others. Just minutes before Trump entered the House chamber, the four attendees ended the mystery and walked down the center aisle: Chief Justice John Roberts Jr., Stephen Breyer, Elena Kagan and Neil Gorsuch. Two conservatives and two liberals—not a bad balance, though short of a quorum. Trump shook their hands as he neared the podium. During his address, Trump boasted that he has appointed “more circuit judges than any new administration in the history of our country,” judges who “will interpret the Constitution as written.” Trump also praised Gorsuch, “a great new Supreme Court justice.” Gorsuch was stone-faced as Trump mentioned him.

Justices Rewriting Election Law Books? The U.S. Supreme Court is on its winter break but its electronic filing system appears to be in overdrive. A flurry of emergency stay applications and requests for expedited briefing flowed into the system last week—most by state lawmakers trying to block court decisions striking down their redistricting maps as racial or partisan gerrymanders. The justices already have agreed to decide five election-related cases this term and at least four more are waiting in the wings—and we thought just one partisan gerrymander case was going to make the term a potential blockbuster in this area of the law! You almost need a cheat sheet to keep track of what is happening, but at least the argument docket—for now—is firm. And if you thought these cases only involved the blood, sweat and tears of civil rights and government reform legal organizations, think again. Plenty of big law firms are laboring behind and at the forefront of these challenges: Perkins Coie, Jenner & Block, Mayer Brown, Blank Rome, Patterson Belknap Webb & Tyler, Baker & Hostetler and Kirkland & Ellis. A number of those firms also have invested years in this typically long-running litigation. As the justices sort out what they will do with the four gerrymander cases waiting in the wings, here’s a quick update on the election cases that they have agreed to decide. Everyone thought the big political case of the term would be the partisan gerrymander challenge to Wisconsin’s state legislative map. The case, Gill v. Whitford, was argued in October by Paul Smith of the Campaign Legal Center with help from Jenner, Mayer Brown and Wisconsin’s Law Office of Peter G. Earle. Smith and company were thrown a bit of a curveball when the justices granted review in a second partisan gerrymander case, this one a challenge to a Maryland congressional district. Benisek v. Lamone will be argued March 28. Take a look at our video for Paul Smith’s thoughts on this and related issues. Mayer Brown’s Michael Kimberly will argue for the challengers. BTW, Kimberly’s original client when the case first went to the high court on a jurisdiction question—Stephen Shapiro—is now a 3L at George Washington University law school. George Washington’s Alan Morrison filed an amicus brief for Shapiro in Benisek. No argument date has been set for Abbott v. Perez, a consolidation of two cases chock full of issues ranging from jurisdictional to vote dilution to intentional race discrimination. And the justices will decide two non-redistricting cases: a challenge to Ohio’s process for updating its registration rolls and a First Amendment challenge involving political apparel at voting polls. Stay tuned. The justices may be about to rewrite the book on election law. ➤ I (Marcia here) sat down with Paul Smith on Tuesday to catch up on the flurry of election disputes at the Supreme Court. Watch the video here.

Can Gorsuch Catch a Break? It has been a rough few weeks for the still-newest justice Neil Gorsuch. There was the flap over his dining with Republican leaders, revealed in a tweet that Sen. Lamar Alexander, R-Tennessee, no doubt thought was benign: “I enjoyed having dinner tonight at the home of Senator John Cornyn and his wife Sandy with our newest Supreme Court Justice, Neil Gorsuch, Transportation Secretary Chao and a few of my other Senate colleagues to talk about important issues facing our country.” The dinner was a sign of improper political mingling to some, a return to civility to others, including Cornyn. Gorsuch also faced a one-two punch challenging his dissent in an otherwise sleepy January 22 civil procedure case, Artis v. District of Columbia. Justice Ruth Bader Ginsburg, a world-class expert on the subject, took Gorsuch to task in the majority opinion, dismissing his “history lesson” on the meaning of common law rules pertaining to tolling. Then came the headline in Slate: “Neil Gorsuch Is a Terrible Writer,” also focusing on Gorsuch’s Artis dissent and setting off more commentary about his performance thus far. Gorsuch led off with a-one sentence description of a metaphor about a fence that he felt the need to expand on in a second sentence. One tweet called it “a gratuitous and clunky explanation.” That passage spawned a new hashtag #Gorsuchstyle, launched by “First Mondays” podcaster and Washington University at St. Louis professor Dan Epps. He encouraged others to supplement historic Supreme Court lines with superfluous Gorsuch-like explanations.

Leah Litman elaborated on Chief Justice John Marshall’s classic admonitionfrom the 1819 decision McCulloch v. Maryland: "We must never forget that it is a Constitution we are expounding.” Litman, a professor at University of California Irvine School of Law, added, “You see, Constitutions are really important, and they differ from statutes, so we should take that into account when we are interpreting the Constitution." And there’s more: #Gorsuchstyle begat #GorsuchDictionaries, a very deep dive into Gorsuch’s choice of dictionaries as resources in the Artis dissent. Neal Goldfarb’s LAWnLINGUISTICS blog criticized Gorsuch for using dictionary definitions that “don’t necessarily shed much light on the meaning of the statutory language that was in dispute.” Goldfarb is a senior attorney at Butzel Long in Washington. So, the short answer is: No, Gorsuch can’t catch a break, at least anytime soon…

SCOTUS Notes Unhappy Anniversary: The Student Press Law Center is marking the 30th anniversary of Hazelwood v. Kuhlmeier, the Supreme Court ruling that set the stage for decades of student censorship. (The decision was actually handed down on January 13, 1988.) With the hashtag #CureHazelwood, the center has fought for years to mitigate the impact of the decision at the state level, with more than a dozen states passing laws protecting student free speech rights. Happy Anniversary: On Jan. 31, 2006, Justice Samuel Alito Jr. took his seat on the high court and became the 110th justice.  Birthday News: Chief Justice John Roberts Jr. turned 63 on January 27. Born in Buffalo New York, Roberts grew up in Indiana. RIP: Von Keetch, an elder and lawyer with The Church of Jesus Christ of Latter-day Saints, died January 26. He clerked for Justice Antonin Scalia and retired Chief Justice Warren Burger in 1989 and 1990. Kannon Shanmugam of Williams & Connolly, also a Scalia clerk, said in a tweet that Von Keetch was the first Scalia Supreme Court clerk to die—remarkable, given that Scalia had 125 clerks during his nearly 30 years on the high court.