Why Today's Docket Is Totally Original | Plus, Close Encounters of the SCOTUS Kind

NATIONAL LAW JOURNAL Supreme Court Brief POWERED BY LAW.COM

Tony Mauro Marcia Coyle Jan 08, 2018

Justices return to the bench today for the first oral arguments of 2018. Both cases are ”original jurisdiction” cases—high-stakes cases that don’t always make national headlines. But they often attract top-notch lawyers who find original cases fascinating. You will too.  Also today, the court will hand down orders. We’ll see if any of the crop of pending petitions caught the justices’ eyes. What are you watching for? Let us know at mcoyle@alm.com or tmauro@alm.com. More in today’s edition: the latest on the judiciary’s handling of the sexual harassment issue, some justice sightings in ordinary places, and new questions on whether President Trump really wanted to appoint Justice Neil Gorsuch. Dig in!

Today in Court … Water Wars If you attend today’s Supreme Court arguments, keep an eye out for the white-haired man with the bowtie. No, not retired Justice John Paul Stevens; he is likely (and wisely) catching rays in Florida. We’re talking about Ralph Lancaster Jr., a partner at Pierce Atwood in Maine who, aside from wearing bowties whenever he comes to the court, is known as the unrivaled master of … being a special master—in original jurisdiction cases before the U.S. Supreme Court. Those are the cases—usually between states and usually disputes over water rights or state boundaries—where the Supreme Court is the court of first, not last resort. As such, the court appoints a special master to do fact-finding, establish a record, and recommend an outcome in this often protracted and complex category of litigation. When Lancaster was picked by the court in 2014 to be special master in Florida v. Georgia, it was his fourth such assignment—apparently, more than any other lawyer in history.  Four years later, the Supreme Court will hear arguments today by both states on the recommendations he made in favor of Georgia to resolve the dispute over Florida’s use of water from the Apalachicola-Chattahoochee-Flint River basin. There’s a mouthful. Lancaster presided over a trial that ran from October 31, 2016 to December 1, 2016 and introduced numerous lawyers to the charms of Portland, Maine. A 20-member team from Kirkland & Ellis representing Georgia, led by partner Craig Primis, “rented out an entire floor of a nearby office building to work,”according to our sibling publication in Atlanta, The Daily Report. “The team lived at a downtown hotel. They found a favorite coffee house and an antique map shop where they could peruse renderings of the rivers and bay they were fighting over.” They also often bumped into the Latham & Watkins team representing Florida. This morning, they’ll bump into each other again. Former Solicitor General Gregory Garre, Latham’s global chair of Supreme Court and appellate practice, will make the case for Florida. Kirkland’s Primis will argue for Georgia, accompanied by deputy U.S. solicitor general Edwin Kneedler. What will be the outcome? The Daily Report’s prediction is capsulized in a headline over a story about the case: No Matter What SCOTUS Does, Georgia's Water War With Florida Is Not Over. But Florida and Georgia are not the only states mixing it up today. The court will also hear arguments in Texas v. New Mexico and Colorado, another water dispute—this one over usage of water from the Rio Grande River—that has been refereed by special master A. Gregory Grimsal, member at Montgomery Barnett in New Orleans. The cast of lawyers arguing in this case is decidedly more local than those handling Florida v. Georgia. Some states stick with their own lawyers for original cases, while others hire outside counsel— sometimes angering budget-conscious legislators. In the Rio Grande case, Texas Solicitor General Scott Keller will go up against Colorado Solicitor General Frederick Yarger and New Mexico lawyer Marcus J. Rael Jr., managing partner of Robles, Rael & Anaya. Ann O’Connell, assistant to the U.S. solicitor general, will also argue as an intervenor. Footnote: Special masters don’t work for free. The court’s docket reveals that the justices have ordered Georgia and Florida to split payment of Lancaster’s $481,259.08 in legal fees since 2014. Grimsal, for his part, has submitted fee requests totaling $615,587.10 since 2014, to be divided between Texas, New Mexico and Colorado.

Justices—They're Just Like Us!

With a simple tweet that he once saw Justice Elena Kagan at Whole Foods and followed her to see if anyone recognized her, Bob Barnes, The Washington Post's Supreme Court reporter, triggered a Twitter thread of memorable justice-spottings by lawyers, law profs, journalists and other keen-eyed SCOTUS nerds. There was Hollingsworth's Greg Chernak, whose wife "accosted the Chief Justice buying yogurt." Trademark attorney Matt Saunders of Saunders & Silversteinsaid his mother once encountered Justice David Souter in the frozen food aisle of Market Basket. Akin Gump Strauss Hauer & Feld associate Mike Parsonstweeted: "Stood behind J. Kagan in line at SweetGreen once. My friend dared me to yell 'IT IS SO ORDERED' after she was done getting her food, but I decided I should try to be respectful. In hindsight, that was the wrong choice. #missedopportunities Catholic News Service reporter Rhina Guidos said she saw Justice Sonia Sotomayor at Trader Joe's and quietly said hello. "It was such a thrill. Do it next time." The notorious RBG was met on the D.C.-N.Y. shuttle and "she was delightful," tweeted another. And another journalist met Justice Sandra Day O'Connor when O'Connor asked for an arm to help her walk; she tweeted: "I offered mine and she took it!" The whole thread can be found here. ➤➤ If you've had a memorable encounter with a justice, we'd like to hear about it. Share your story and we'll collect the best ones for a future issue. Email mcoyle@alm.com or tmauro@alm.com.

#MeToo and the Judiciary  James Duff, director of the Administrative Office of the U.S. Courts and others are "actively discussing the working group" on safeguards against sexual misconduct within the judiciary" and "when formed, its membership will be announced publicly," according to David Sellers of the Administrative Office. Shortly before the year's end, Chief Justice John Roberts Jr. asked Duff to create a working group to examine whether sufficient safeguards exist to protect court employees, including law clerks. Duff has said he plans to produce a report and recommendations by May 1. But the U.S. Court of Appeals for the Seventh Circuit is not waiting for the working group. Chief Judge Diane Wood recently announced she has appointed a committee, chaired by Judge David Hamilton, to examine the process for raising and addressing claims of job-based harassment in the courts of the circuit. Other committee members are: Circuit Judge Diane Sykes, Southern Indiana District Judge Tanya Walton Pratt, Northern Illinois District Judge Gary Feinerman, Southern Illinois District Judge Nancy Rosenstengel, Northern Illinois Bankruptcy Judge Jacqueline Cox, and Circuit Executive Collins Fitzpatrick. Wood's announcement said the committee's review will include the current Equal Employment Opportunity Plan and Employment Dispute Resolution Plan of the United States Court of Appeals, and the procedures for filing a complaint against a judge for misconduct including sexual or other harassment under the Judicial Conduct and Disability Act of 1980. "I don't know of any other courts that have taken that step but I'm sure they will proceed consistent with the process the chief justice outlined in his year-end report," said Sellers. ➤➤ On clerking for Alex Kozinski, Wilson Sonsini partner Katherine Ku in Los Angeles recounts her experience—and raises new allegations of misconduct—in an op-ed at the Washington Post. Ku, who later clerked for Justice Ruth Bader Ginsburg, writes to make a larger point: Retirements—as in Kozinski's case—and resignations without investigations force accusers to fall back "into collective silence" and leave all of us without knowing what the "proportionate punishment" and suitability of future redemption should be.

Justice Rudy Giuliani?  Well, no. Neil Gorsuch got the nod. But apparently Trump considered Giuliani. That's the hot take in Michael Wolff's new book "Fire and Fury: Inside the Trump White House." Trump was focused on loyalty—picking a friend—and questioned the value in choosing someone he did not know, Wolff writes.  South Texas College of Law Houston prof Josh Blackman, tweeting about Wolff's book, said nominating Greenberg Traurig's Guiliani for the Supreme Court "makes no sense." Guiliani's nomination, as Blackman puts it, "would have broken so many promises." Blackman tweeted his assessment and the book's passages here. We reached out to the former New York City mayor, who was traveling and unavailable for comment.

Thanks for reading Supreme Court Brief.  We'll see you again tomorrow to catch up on arguments, orders and other developments at 1 First Street.

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