What to Watch in 2018: Hot Petitions, Big Cases and Justice Kennedy

NATIONAL LAW JOURNAL Supreme Court Brief POWERED BY LAW.COM

Tony Mauro Marcia Coyle Jan 03, 2018

Happy New Year, Supreme Court aficionados! The court is easing back to work with a conference on Friday and the next cycle of arguments starting January 8. Get caught up with a quick video from Marcia Coyle on what to look for in 2018—hopefully including decisions, which the justices have been parsimonious in doling out lately.  We'll get into more detail on the arguments next week. But the holidays did not slip by without news from the Marble Palace. Chief Justice Roberts issued his annual report on New Year's Eve, as always. And, as you'll see below, there's a new twist on rumors that Justice Kennedy will retire. The news never stops … If you have feedback on this briefing or news you'd like to share, reach out at tmauro@alm.com or mcoyle@alm.com.

SCOTUS Conference Watch The justices hold their first conference of 2018 on Friday and, if so inclined, will find lots of fodder for the March and April argument dockets, and for SCOTUS junkies as well!  We're watching a number of petitions on the conference list, and while it's difficult to predict what the justices will do, we may know as early as Friday afternoon what cases have triggered their interest. The court is behind the pace of granting cases and a Friday orders list could give lawyers a little extra time to get ready for those final two months of argument. Two petitions that have drawn keen interest are Lucia v. Securities and Exchange Commission and Hidalgo v. Arizona. In Lucia, Mark Perry of Gibson, Dunn & Crutcher represents investment advisor Raymond Lucia in a challenge to the status of the SEC's administrative law judges—an issue closely watched by the white-collar bar. The case is one of several this term in which Solicitor General Noel Francisco has switched the government's position from that of the Obama Administration. Francisco said the government no longer defends the D.C. Circuit decision holding that the ALJs are "employees," not "officials" subject to the Constitution's appointments clause.  Another wrinkle in the case is the SEC's recent move to "ratify" the appointments of its five in-house judges. If Lucia is not chosen for review, the ALJ issue is also raised in SEC v. Bandimere from the Tenth Circuit. But that too presents a potential problem—recusal by Justice Neil Gorsuch. In Hidalgo, Hogan Lovells' Neal Katyal urges the justices to take up his constitutional challenge to Arizona's capital sentencing scheme to find that the death penalty in itself is cruel and unusual punishment. Justice Stephen Breyer listed numerous problems with the death penalty in his 2015 dissent in Glossip v. Grossand asked for full briefing on whether the penalty violates the Constitution. Only Justice Ruth Bader Ginsburg joined his dissent. Undeterred, Katyal argues that Hidalgo is the right vehicle and the court should answer the constitutional question now. One of the more unusual petitions of the term comes from Francisco in Hargan v. Garza. The solicitor general is asking the court to vacate a D.C. Circuit decision that allowed a pregnant immigrant teenager to get an abortion and to take disciplinary action against the teen's ACLU lawyers who, he contends, misled the government about when the abortion would occur. The ACLU brought on board for its defense, Sidley Austin's Carter Phillips, who called Francisco's complaints "extraordinary and baseless." This should be interesting. There's more on the list: states' efforts to get out-of-state, online retailers to pay state sales taxes, a Second Amendment challenge to California's waiting period for gun purchases, and a big money challenge filed by Kirkland & Ellis' Paul Clementto the Federal Circuit's per se bar against the recovery of foreign lost profits in patent infringement cases.  ➤ Read more here. We'll let you know what happens.

Counting Down the Term's Big Cases Now that we've put 2017 to bed, it's time to focus on 2018 which promises to be just as packed with contentious issues and top-flight Supreme Court advocates at the podium. The list may grow (see above), but right now we're keeping close watch on five cases that the justices have agreed to hear and are likely to make news headlines. 5. Husted v. A. Philip Randolph Institute Last year was already a huge year for voting rights as the high court took up the question in a Wisconsin case about when partisan gerrymanders violate the Constitution. This month the justices turn to another side of the voting rights issue in Husted, a challenge to Ohio's system of purging its voter rolls. Former Jenner & Block partner Paul Smith, now with the Campaign Legal Center, represents the challengers who argue Ohio violates the National Voter Registration Act by using a person's failure to voter over a two-year period to trigger removal from the rolls. Smith, a former clerk to Justice Lewis Powell Jr., will face Ohio Solicitor General Eric Smith, a former Justice Anthony Kennedy clerk. Smith argued the partisan gerrymander challenge to Wisconsin's redistricting plan in October. 4. Janus v. AFSCME February offers the justices a second shot at so-called fair share fees paid by nonunion members to unions that represent them in collective bargaining. The high court deadlocked in 2016 in a case raising the same claim that the fees violate the First Amendment. In Janus, set for Feb. 26 arguments, William Messenger of the National Right to Work Foundation will argue for Janus. David Frederick of Kellogg, Hansen, Todd, Figel & Frederick, who represented the union in the 2016 case, returns on behalf of AFSCME. 3. U.S. v. Microsoft Set for argument Feb. 27 is a showdown between the United States and Microsoft Corp. over the government's search and seizure warrant for data stored in Microsoft's data center in Dublin, Ireland. The U.S. Court of Appeals for the Second Circuit held that the Stored Communications Act does not authorize courts to issue warrants for customer email content stored on foreign servers. E. Joshua Rosenkranz of Orrick, Herrington & Sutcliffe represents Microsoft. 2. National Institute of Family and Life Advocates v. Becerra Abortion is back on the docket in a First Amendment challenge to California's law requiring certain disclosures by so-called crisis pregnancy centers. Alliance Defending Freedom, which brought to the court Masterpiece Cakeshop v. Colorado Civil Rights Commission this term, is defending the National Institute of Family and Life Advocates. ADF's David Cortman is counsel of record.  California Deputy Solicitor General Joshua Klein, a former clerk to Justice Sandra Day O'Connor, is counsel for the state. 1. Benisek v. Lamone And last but not least, the justices will hear a second partisan gerrymandering case this term. The appeal, not yet scheduled for argument, challenges a single congressional district in Maryland. The justices got a glimpse of the case in 2015 when the challenge triggered a dispute over the role of three-judge district courts in apportionment cases.  The two lawyers who argued the 2015 case are back in Benisek: Mayer Brown's Michael Kimberly, who won in 2015, represents the Benisek challengers, and Maryland Solicitor General Steven Sullivan is counsel for the state.

'The Post': #alwaysascotusangle  The new movie "The Post" is a riveting account of the internal struggle at The Washington Post in 1971 over what to do with the Pentagon Papers, the top-secret government history of the Vietnam War. It was publisher Katherine Graham versus the all-male business-side officials of the Post company who feared the newspaper would collapse if she defied government efforts to block publication of stories about the papers. At the end of the saga, there is of course the small matter of The New York Times v. United States, the landmark Supreme Court decision that gave First Amendment protection to both the Post and Times to publish their stories. The Supreme Court plays only a fleeting role in the movie, with protesters, spectators and journalists crowding the steps of the court—which would be illegal today—followed by the marshal crying Oyez Oyez, the justices taking their seats, and then … fade to black. But before all that, Supreme Court nerds will get a kick out of a scene from the movie in which Post editor Ben Bradlee—played by Tom Hanks—takes a call from a Justice Department official urging the Post not to publish. That official was William Rehnquist, who at the time—just months before he was nominated to the Supreme Court— was associate attorney general. Bradlee blew him off and Rehnquist thanked him for his time. As it turns out, Rehnquist played a key role in shaping the Nixon administration's response to the Pentagon Papers bombshell. Then-White House counsel John Dean wrote he was told President Richard Nixon wanted to "put those bastards … in jail" for publishing the papers. "I knew what to do," Dean wrote in 2001. "I called Bill Rehnquist." Soon, Rehnquist worked up a memo detailing the ways in which journalists could be prosecuted. That memo never surfaced during Rehnquist's 1971 or 1986 confirmation hearings.

Kennedy Clerks Up for 2018-19 Just before the holiday week, when you may have been focusing on other things,Above the Law reported that Justice Anthony Kennedy had completed hiring of four law clerks for the 2018 term. Three are Yale Law School grads and one is from the University of Chicago. Their job is to help Kennedy through a term that many people have been speculating Kennedy won't be around for. ATL correctly notes that the hires do not mean for sure that the 81-year-old Kennedy plans to continue working through mid 2019. The pantheon of law clerks is littered with eager young acolytes who find themselves jobless—briefly, at least—when their justice abruptly heads for the exit door. When that happens, the clerks are usually distributed to other justices' chambers. So it is possible that Kennedy is planning to retire next term and is giving his colleagues a farewell bouquet of four clerks to help ease their caseload. Aimee Brown is the Chicago grad. The Yalies are Conrad Scott, Alex Kazam and Clayton Kozinski. How soon, one wonders, will somebody at the court confuse the names and call one of them Alex Kozinski—the abruptly retired Ninth Circuit judge who happens to be Clayton's father.  Speaking of Kozinski: Since he went on the bench in 1985, Judge Alex Kozinski has been a major feeder judge for Kennedy, also a former Ninth Circuit judge, and the Supreme Court in general. According to data from our recent law clerk stories, Kozinski has sent at least 24 of his clerks to the Supreme Court since 2005—14 of them to Kennedy. In light of Kozinski's close ties to the justices and recent allegations that he interacted inappropriately with female law clerks and others, at least one commentator is wondering whether the justices themselves were also aware of the "open secret" about Kozinski's behavior. "The Supreme Court justices have hired dozens of former Kozinski clerks," wrote Claire Madill, a former Ninth Circuit clerk and now a Florida public defender, wrote in Slate. "It’s hard to believe that, during this incredibly intimate working relationship, the justices never learned of Judge Kozinski’s behavior." What do you think? Would rumors of Kozinski's misconduct have been likely to reach the justices? Let us know at tmauro@alm.com or mcoyle@alm.com.

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