Brennan Papers: 'We Live and We Learn' | The Sides of March

NATIONAL LAW JOURNAL Supreme Court Brief POWERED BY LAW.COM

Tony Mauro Marcia Coyle Mar 19, 2018

The justices return to the bench today at the U.S. Supreme Court for a batch of arguments and decisions that may or may not make many headlines. But the array of lawyers arguing is interesting—and disappointing, as you’ll see below. We’re also beginning to delve into a new batch of documents from the papers of the late liberal giant William Brennan Jr. at the Library of Congress. And speaking of that fine institution next door to the Supreme Court, the library is offering a new way to search early court decisions online.  Thanks for reading, and we welcome your feedback at mcoyle@alm.com and tmauro@alm.com.

The Sides of March Two themes run through the lineup of advocates arguing before the U.S. Supreme Court in March. For this week, it’s “Early Lunch,” and for both weeks it’s “Men Only (Almost).” By early lunch we mean that the court will only hear one case per day during its sittings this week—from 10 to 11 Monday, Tuesday and Wednesday. If the court cafeteria offered an early-bird special the justices, who tend to dine together on argument days, could save a few dollars. As for the two-week picture, 18 lawyers will be arguing, and only two are women. Both of the women, Ann O’Connell and Rachel Kovner, are assistants to the U.S. solicitor general. In other words, none of the private practice advocates appearing before the high court this session are women. Unfortunately, that’s not a surprise. It could also be said that few of the usual suspects will be at the lectern this time around. No former U.S. solicitors general are arguing, and neither is the current one, Noel Francisco. He and others may be keeping their powder dry for the busier and possibly newsier April session. The two marquee cases of this cycle are: ➤➤ National Institute of Family and Life Advocates v. Becerra, the First Amendment challenge by “crisis pregnancy centers” against a California law requiring them to inform clients about abortion as an option. The case was backed by Alliance Defending Freedom, and its president and CEO Michael Farris will handle the argument March 20—his first before the high court in more than 30 years. He’ll be joined by Deputy U.S. solicitor general Jeffrey Wall, and opposed by deputy California Solicitor General Joshua Klein, a former clerk to Justice Sandra Day O’Connor. California AG Xavier Becerra is expected to attend the argument. ➤➤ Benisek v. Lamone, the Maryland political gerrymandering case that targets Democratic mapmakers. Mayer Brown partner Michael Kimberly will go up against Maryland SG Steven Sullivan. Kimberly is part of the new generation of skilled private-practice Supreme Court advocates, along with others who will be arguing this cycle: Adam Unikowsky of Jenner & Block arguing against Shay Dvoretzky of Jones Day in the divorce and contracts clause case Sveen v. Melin today, and Eric Miller of Perkins Coieappearing in Wednesday’s tribal sovereignty case Upper Skagit Indian Tribe v. Lundgren. And then there are some more seasoned veterans: Stanford Law School professor Jeffrey Fisher, arguing his third case this term, serving as appointed counsel in Koons v. United States, a sentencing guideline case, and David Frederick of Kellogg, Hansen, Todd, Figel & Frederick, arguing his 50th Supreme Court case in the class action case China Agritech v. Resh. Yes, his 50th.

Brennan Bits: 'We Live and We Learn' The latest tranche of documents in the files of the late Justice William Brennan Jr., his correspondence, became open to the public at the Library of Congress last July 24, on the 20th anniversary of his death. It regrettably appears that most fans of justices’ papers—including me—let that date come and go without mining the files for interesting tidbits. William Brennan Supreme Court blogger and academic Josh Blackman seems to be the first to dig in, posting interesting letters recently between Brennan and Jacqueline Onassis, and Brennan and the late Harvard Law School dean Erwin Griswold. Blackman was kind enough to send another batch of letters my way, this one pertaining to a 1987 incident that got then-ABC News Supreme Court correspondent Tim O’Brien in trouble. The Supreme Court press corps was (and still is, mostly) a well-mannered group, but O’Brien was known then as the Peck’s bad boy of the press corps. In June 1987, O’Brien and a camera person were filming the court’s empty conference room for “b roll” footage for an upcoming story. He glanced toward the fireplace and spotted a crumpled piece of paper that looked like a status report of pending cases. Almost reflexively, O’Brien fetched the paper and began to read it. “The first thing I saw was 7 to 2, with Brennan writing the opinion in Edwards v. Aguillard,” a high-profile church-state case, O’Brien recalled last week. (That’s how the case actually turned out, by the way.) The court staffer who accompanied O’Brien registered her disapproval, and O’Brien turned the document over to her. Word spread, and then-new Chief Justice William Rehnquist was said to be furious. O’Brien, who had written stories about several leaked opinions in the past, promised not to use the information. In a letter found in the Brennan file, O’Brien apologized profusely to Rehnquist. “This incident has left me feeling simply awful,” O’Brien wrote. “I sincerely hope you and your colleagues can accept my apologies.” Rehnquist, himself a bit of a prankster, responded in a letter. “I most certainly accept your apologies … and I daresay my colleagues will do the same … We live and we learn.” O’Brien, who still follows the court, said last week, “I shouldn’t have done it. But there was no mens rea. I sometimes have a juvenile sense of humor.” Alert: Watch this space in future editions for more Brennan bits.

225 Years of SCOTUS Decisions: Now Online The Library of Congress has rolled out a new, fully searchable collection of more than 225 years of Supreme Court decisions. The justices in the earliest years could be quite blunt about their views. In Jennings v. The Perseverance, the plaintiff's lawyer said it was true that the court had never expressly decided a case with a record containing evidence but no statement of facts—although, he added, the chief justice appeared to adopt the view it would not. The lawyer said if the rest of the court shared that view he would decline "troubling them with any further argument." In what resembles a footnote, Justice Samuel Chase wrote in 1797: "Even if the court were to permit it, you would find little encouragement to enter into the merits: The evidence is too plainly against you." Ouch. Justice Noah Haynes Swayne revealed that his colleagues in 1865 were truly worldly men—at least when it came to the origins of fine bubbly. In Cliquot's Champagne, a case involving certain French champagnes that were fraudulently invoiced for this country below actual market value, Swayne wrote: "The wine region itself—the ancient province of Champagne—is a small district in the northeast of France, of which the ancient, decayed, and deserted cathedral city of Rheims—lying to the side of the great thoroughfare of travel from Paris to Strasburgh—is the capital. The region is largely owned by particular persons, Moet and his partner, Chandon; Mumm, Heidsick, Jaqueson, and the family of Cliquot: most of whom reside about here, but who with all the leading champagne manufacturers have agencies in Paris; they themselves not commonly attending to details of the 'commerce;' though perhaps responding—some of them—from the spot, to communications addressed to them on the subject of their wines; referring also sometimes to their agents at Paris or abroad. Different manufacturers supply different countries, Eugene Cliquot sending large quantities to the United States, Jaqueson to Russia: different countries having different tastes." Take a walk through the "library" and discover early America!

ICYMI... ➤➤ Most U.S. Supreme Court cases are born the old-fashioned way: an aggrieved party goes to a lawyer to appeal a lower court decision, and the lawyer petitions the court. But the high-profile case of South Dakota v. Wayfair, involving state taxation of online retail sales, unfolded in a very different way—"from the ground up," as Tom Goldstein of Washington's Goldstein & Russell put it. ➤➤ Newly disclosed documents from the U.S. Marshals Service revealed confusion and lack of coordination in the immediate aftermath of the death of Justice Antonin Scalia at a West Texas lodge in February 2016. ➤➤ A University of Miami law school professor examined every signed opinion, concurrence and dissent in the 2014 and 2015 terms to see how the justices aligned when it came to writing styles. She found they generally agreed on most matters of style but divided on the use of conjunctions, sentence fragments, and possessives. ➤➤ The U.S. Justice Department, in an amicus brief, warns the U.S. Supreme Court that an appellate court decision in an Oklahoma death penalty case could place nearly half of that state into Indian territory with massive problems for federal, state and Native American jurisdiction in civil, criminal and regulatory matters.

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