UVA Prof Nabs Rare Invite | Ferris Bueller's Ferrari | Inside 'Nino and Me'

NATIONAL LAW JOURNAL Supreme Court Brief POWERED BY LAW.COM Tony Mauro Marcia Coyle Jan 16, 2018 Hearing the siren call of their long February break and vacant argument slots, the justices rolled out grants of review Friday in 12 cases. With another nine already awaiting argument dates, the latest dozen will help to fill out March and April argument calendars. BUT still no decisions expected this week.  Meanwhile, the justices wrap up their January argument session by hearing a rare trio of servicemembers' cases—first in 21 years!—from the U.S. Court of Appeals for the Armed Forces. Even rarer is the grant of argument time in those cases to a UVA law professor who challenges the justices' right to hear them. How rare? We let you know. We also look under the cover of Bryan Garner's new "biography" of his friendship with the late Justice Antonin Scalia and reveal how a solo appellate litigator captured Chief Justice John Roberts Jr.'s attention with a classic movie (Bueller? Bueller?....).  What’s on your minds SCOTUS-watchers? Send your questions, suggestions and feedback to mcoyle@alm.com or tmauro@alm.com. Professor Bamzai Speaks for Himself A University of Virginia law professor has thrown a curveball to lawyers arguing Tuesday in consolidated cases with potential significance for civilian control of the nation's military. In an amicus brief that won him rare argument time, Aditya Bamzai contends the judges of the Article I U.S. Court of Appeals for the Armed Forces are executive branch officers over whom the U.S. Supreme Court cannot exercise its appellate jurisdiction. And he cites for authority no less than Marbury v. Madison. The Supreme Court has exercised appellate jurisdiction over that court in the past. But Bamzai's arguments triggered enough interest for the high court to expand the usual hour-long arguments by 10 minutes to hear from him. Some experts said that the court's acceptance of Bamzai's view would call into question other areas of the high court's jurisdiction, such as over federal territories. The three consolidated cases from the Armed Forces Court don't center at all on the jurisdiction issue raised by Bamzai, who declined to comment. Instead, more than 170 convicted service members ask whether military judges hearing their court-martial appeals—while also serving in a civilian position as judges on the U.S. Court of Military Commission Review—violates a Civil War-era law. The law bans active duty military officers from concurrently holding a civil office. Tuesday's cases are not the first time that Bamzai, along with Adam White of the Hoover Institution, have filed an amicus brief raising the jurisdiction issue. Bamzai, who has a special interest in Article III jurisdiction, brought it up in Akbar v. United States, a separation-of-powers challenge to the military death penalty. The justices denied review in 2016. Although not unprecedented, it is unusual to see pro se lawyers at the high court podium. Bankruptcy trustee Jan Hamilton argued Hamilton v. Lanning in 2010. Michael Newdow faced the justices in 2004's Elk Grove United School District v. Newdow, and Silvia Ibanez successfully defended her advertising practice in 1994 in Ibanez v. Florida Board of Accountancy. "I can't think of a recent case in which a law professor speaking only for himself successfully persuaded the court to grant him argument time,” said Kate Shaw of Yeshiva University Benjamin Cardozo School of Law, author of Friends of the Court: Evaluating the Supreme Court's Amicus Invitations. “It's quite an accomplishment for Prof. Bamzai." Besides Bamzai's argument, the justices on Tuesday will hear from the convicted service members' counsel, Stephen Vladeck of the University of Texas School of Law, who is making his first appellate argument. Assistant to the Solicitor General Brian Fletcher will argue for the United States. (Photo by Julia Davis, UVA School of Law) The Picture Worth 1000 Words Most lawyers tend to rely on words in their Supreme Court briefs. But sometimes a picture really does speak a thousand words, said appellate litigator Mahesha Subbaraman of Minneapolis. It did in Collins v. Virginia, a Fourth Amendment case involving a warrantless search of a tarp-covered motorcycle on the driveway of someone's home. The issue was whether the amendment's automobile exception applied when the motorcycle was in the curtilage of the home where searches require warrants. Subbaraman filed an amicus on behalf of Restore the Fourth, a nonpartisan civil liberties group dedicated to robust enforcement of the Fourth Amendment. To bolster his argument, he used the movie “Ferris Bueller's Day Off” and a photo of the glass-enclosed, garaged Ferrari that Ferris and his friend Cameron Frye (whose father owned the Ferrari) "borrowed" for their joy ride. If the justices approved the police action in Collins, Subbaraman argued, there would be a "garage exception" to the Fourth Amendment allowing warrantless searches of closed garages if police can see the vehicle through a gap in the doors or a window. "Would the police have been free to enter the Fryes’ glass garage without a warrant so long as they had probable cause to believe the Ferrari was located there?" Subbaraman wrote. The image apparently stuck with Chief Justice John Roberts Jr. who mentioned "the Porsche (oops!) in Ferris Bueller" during the arguments. After spending several weeks researching the Collins case, Subbamaran said, "I woke up one morning and thought: I've seen this movie before." He included the photo with the Bueller analogy in order to show a glass garage was not such an outlandish hypothetical. Subbaraman opened a solo practice in 2015. He practiced at Robins Kaplan and the Institute for Justice before striking out on his own. "I started looking for interesting issues and cases, particularly with respect to civil liberties, and offered my services regardless of cost," he said. "There is something you cannot get anywhere else in terms of independence." His practice has been successful enough, he said, to allow him to continue to do what he wants. As for the Collins arguments, "It never ceases to amaze me you can write an amicus brief and end up on the mind of a justice and the chief justice at that!" Errata! In our Jan. 8 preview of the water cases, we shorted the name of one of the law firms. Special master A. Gregory Grimsal practices at New Orleans' Gordon Arata Montgomery Barnett, not Montgomery Barnett. And Grimsal's $615,587 fee request would be divided by Texas, New Mexico, Colorado AND the United States. Our apologies! “Nino and Me” — and Me? Bryan Garner’s fascinating memoir of his friendship with Justice Antonin Scalia, out today, recounts the ups and downs of the last years of his life, as we report in this story. One anecdote tells how Scalia overcame his disdain for journalists—or at least one journalist—to help promote the book he and Garner wrote in 2008 titled "Making Your Case: The Art of Persuading Judges." That journalist was me, Tony Mauro. I had heard that the book project was underway in 2007, and wanted to talk to Scalia about it. I made the request through Garner, and Garner asked his co-author. “I don’t want to talk with that man. I won’t talk to him!” Scalia told Garner. Garner chalked up Scalia’s resistance to Scalia’s bad experiences with the media generally, but Scalia and I had had a falling out that led him, in 2001, to write a letter to the editor of Legal Times calling a story I had written “mauronic.” Garner told Scalia that if he is “nice to the media, they’ll generally be nice to you,” but Scalia was adamant. “I’m not talking to the guy.” Scalia did give me a written statement, and the story I wrote about the book was positive. Scalia wrote to Garner, “The Mauro piece was fine. Whets the appetite.” But that is not the end of the story. Once the book was published in 2008, Scalia and Garner made numerous public appearances to promote the book, including a major event at the Kennedy Center. I told Garner I wanted to cover it, and he invited me to come backstage during intermission to chat with Scalia. Again, Scalia balked. “I don’t want to talk to Mauro! … He won’t be fair to us.” Garner pressed the point. “If you want good press, you have to cooperate with the press.” He urged Scalia to express interest in me, ask me questions, and the like. “It’s pure Dale Carnegie.” Scalia relented, and we did meet. I was as wary as he was, and his eyebrow arched as we shook hands. He was the courtly Old World gentleman I had heard about but not experienced. Sure enough, he asked me about my family. Soon I was telling him about my daughter, and he was giving me parental advice. “I could barely break them apart,” Garner wrote. If flattery was the goal, I guess it worked—though I continued to write articles in the years since that Scalia and his colleagues were unlikely to put in their scrapbooks. One more thing: My daughter Emily got married two days ago. Orders Recap  In case you got an early start on the holiday weekend and missed Friday's flurry of orders, here's a recap: ➤ Justices, Adding 12 Cases, Will Rule on State Sales Taxes for Online Retailers Eric Citron of Goldstein & Russell represents South Dakota in the state's fight to overturn the court's 1992 decision in Quill v. North Dakota. ➤ Supreme Court Takes Up Dispute Over SEC Judges The justices granted review in Lucia v. SEC but took no action Friday in a companion case out of the Tenth Circuit that could raise recusal complications for Justice Neil Gorsuch. ➤ With New IP Case on Its Docket, SCOTUS Poised to Shake Up Patent Damages The U.S. solicitor general is asking the court to expand the boundaries for damages in patent infringement cases to include sales around the globe. Additional orders are expected this morning. 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