Remains to Be 'Sveen' | RBG, the Trailer | Risk-Reward in the Trump DOJ
NATIONAL LAW JOURNAL
Supreme Court Brief
POWERED BY LAW.COM
Mar 14, 2018
The justices' argument sessions this term—top heavy with major cases—seem to be whizzing by nearly as fast as the revolving door at the White House. The March session begins on the 19th and we take a look at a rare Minnesota case that day involving the nearly moribund contract clause. With two high-powered veteran advocates, the case offers the justices a legal pu pu platter of federalism, originalism, and sex discrimination.
Plus, the RBG movie trailer is out and we discover who really said its opening lines, and we report on an interview with Charles Cooper of Cooper & Kirk in which he talked about why he decided not to pursue a nomination as U.S. Solicitor General.
The U.S. Supreme Court hasn't heard a contract clause case in at least a generation. Contract clause, you say? You can be forgiven if that clause, in Article I, Section 10, is not on the top of your list of most memorable constitutional clauses. The clause has "largely faded to insignificance," says James Ely, professor emeritus at Vanderbilt University Law School, considered an authority on the clause.
Just how much voltage remains could be revealed when the justices rule in Sveen v. Melin to be argued Monday, March 19. The case stems from a not-so-rare fight over life insurance benefits between the designated beneficiary—the ex-spouse of the dead policyholder—and the secondary beneficiaries—the children of the policyholder's earlier marriage.
Minnesota's revocation-on-divorce law, like the laws of roughly 19 states, provides that if a person designates a spouse as the life insurance beneficiary, the designation is automatically revoked if the policyholder later gets divorced. The law assumes that a divorced policyholder does not intend an ex-spouse to remain as the beneficiary. However, the policyholder can add the ex-spouse back to the policy by contacting the insurer after the divorce.
But can that law be applied to a life insurance policy purchased before the law was enacted? The U.S. Court of Appeals for the Eighth Circuit said, no, because retroactive application violates the contract clause.
Making the childrens' argument that the appellate court was wrong will be Jenner & Block partner Adam Unikowsky. His opponent, representing the ex-spouse's position, is Jones Day partner Shay Dvoretzky.
Vanderbilt's Ely, who filed an amicus brief supporting the ex-spouse and urging the justices to restore the original meaning—and teeth—to the contract clause, answered some general questions about the clause that we posed recently.
Why are these cases so rare in the Supreme Court? I think the Supreme Court in the 1930s and during the New Deal period tended to downplay or ignore various clauses designed to protect property owners and to facilitate the spread of the regulatory state. The contract clause was a casualty of this jurisprudential shift. In the 1970s, the Supreme Court decided a few cases that seemed to breathe life into it, using a multi-pronged test and leaving to states and state courts to figure out. The clause has only been partially recalled from limbo.
Were you surprised the justices took a life insurance contract case? A number of situations are more pressing that might trigger review. There have been attempts in some states to rewrite retroactively the terms of franchise agreements; to revamp or eliminate teacher tenure, and most hot-button effort—to trim public employee benefits.
This case seems to have something for justices on the left and the right: originalism, federalism and even gender discrimination. How do you see this playing out? Whether they will rule on the broader ground in my brief or a narrower ground, I don't know. I was trying to remind the court that there was a long history on the contract clause and modern history has wandered pretty far from what the framers provided.
Ginsburg and her “Brethren”
The much-anticipated RBG documentary won’t be in theaters until May 4, but the trailer released last week has already gotten roughly a quarter-million views on YouTube, only one of many sites where it can be watched. Justice Ginsburg turns 85 tomorrow [March 15.]
The trailer starts powerfully, with Ginsburg stating softly, “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”
All we can say is “Wow,” followed by “Hmmm.” When the justice said “brethren” with a wry smile, did she mean her brethren on the Supreme Court, as in the 1979 book "The Brethren"? Or did she mean brethren in the more general sense of the word, as in brothers? And were they Ginsburg’s words, or someone else’s?
They actually were first spoken by Sarah Grimke, a nineteenth century American abolitionist and feminist who was unlikely to be singling out Supreme Court justices in her statement.
Here’s the full quote: “I ask no favors for my sex, I surrender not our claim to equality. All I ask of our brethren is that they will take their feet from off our necks, and permit us to stand upright on the ground which God has designed us to occupy.”
Why Chuck Cooper Is Not Solicitor General For a period early last year, veteran advocate Charles Cooper of Cooper & Kirk seemed to be on the fast track toward being named U.S. solicitor general. But Cooper nipped the idea in the bud, telling Politico, “Life is too good, and too short.”
In a lengthy recent profile of Cooper posted by TPM, Cooper elaborated on his decision: “There were powerful forces in the White House who had different candidates.” He said he removed his name from consideration even before the vetting process began.
“After seeing what Jeff [Sessions] went through and knowing that the support I’d get—I would not have the benefit, as I did once, of a White House machine in all likelihood caring a lot about me, having come out of the campaign, out of the [Ted] Cruz campaign tradition—it just seemed to me … at the end of the day, the risk-reward on this isn’t working,” Cooper told TPM.
➤ Another factor was the polarized media and political climate, Cooper said. He acknowledged that a biting Rachel Maddow segment last February helped cement his decision. “I didn’t want Rachel Maddow night two or Washington Post editorial or a New York Times editorial and the rest of basically the organized attack on the next bad idea from the Trump administration to start taking root,” he said. “Don’t think for a minute that I wasn’t fully aware that if I had gone through with this that I wouldhave been a regular feature on Maddow’s show.”
If you enjoy Supreme Court Brief, check out more briefings from Law.com writers. We recommend What's Next on the intersection of law and technology, Skilled in the Art on everything IP, and Labor of Law on the hot spots in employment law.
#alwaysascotusangle On March 13, President Donald Trump announced his intention to appoint Jane Nitze to the Privacy and Civil Liberties Oversight Board. You may remember Nitze from one of the Judicial Crisis Network’s widely televised ads supporting the nomination of Neil Gorsuch to the Supreme Court. She clerked for Gorsuch on the Tenth Circuit, and then for Justice Sonia Sotomayor. Nitze returned to the high court last year to clerk for Gorsuch for his abbreviated first half-term. The ad labeled her as a “former Obama administration attorney,” and that is correct. She spent four years in the Office of Legal Counsel at the Justice Department, and now works at the National Security Institute at Antonin Scalia Law School at George Mason University, which was founded by fellow Gorsuch clerk Jamil Jaffer.
ICYMI ➤ The federal judiciary's working group on workplace harassment in the judicial system has developed nearly 20 reforms to deal with concerns raised in the aftermath of the sexual misconduct scandal last year involving Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.
➤ Google Inc.is defending a cy pres-only settlement in the U.S. Supreme Court stemming from a class action that alleged the tech company illegally shared the search queries of its users. Mayer Brown's Donald Falk, who was once described as "California's class action killer," represents Google.
Republican Charlie Baker is incapable of LEADERSHIP! This is solely ONE issue and ignores Charlie Baker's MISMANAGEMENT that caused a BOND RATING DOWNGRADE. Why has the media given Charlie Baker a FREE RIDE?
- "Battenfeld: Statie scandals may roil Baker's re-election bid", by Joe Battenfeld, Boston Herald: "Multiple scandals in the state police have put Gov. Charlie Baker's administration in a politically perilous position, just as the governor's re-election campaign is gearing up."
KENNEDY’s Florida dinner — POT lobbying hits new high — DEVAL on reinvesting in America
03/05/2018 07:31 AM EDT By Lauren Dezenski (firstname.lastname@example.org; @LaurenDezenski) with Brent D. Griffiths (email@example.com; @BrentGriffiths) GOOD MORNING, MASSACHUSETTS.KENNEDY'S FLORIDA DINNER - Rep. Joe Kennedy III made his first high-profile out-of-state visit since his State of the Union response speech this weekend, visiting Florida for the Broward County Democrats…
THE BIG IDEA: PITTSBURGH—If Republican congressional candidate Rick Saccone wins an unexpectedly close special election here next Tuesday, it will be on Donald Trump’s coattails. On the other hand, this race wouldn’t be competitive at all if the president was not so polarizing – even in a mostly blue collar, largely rural southwestern Pennsylvania district that he carried by 20 points in 2016.
This race should be a gimme for the GOP. Democrats didn’t even bother to field a candidate in 2016 or 2014. But public and private polls show the contest in the 18th district is now a toss-up, even after Republicans have poured in more than $10 million – about five times what Democrats have spent.
Court-ordered reapportionment means that the district will ceas…
DEMS hammer BAKER over new ranking — HOUSE harassment report incoming — LOWELL suing over opioids
02/28/2018 07:13 AM EDT By Lauren Dezenski (firstname.lastname@example.org; @LaurenDezenski) with Brent D. Griffiths (email@example.com; @BrentGriffiths) RAKED OVER RANKINGS - Massachusetts' drop on the US News and World Report's ranking of top states - from first in the nation to eighth - has provided a new opportunity for Democrats to hammer Gov. Charlie Baker. While Massachusetts continues to be the top state in the country for education, it's fallen to 40th for fiscal stability and 45th for infrastructure. The top overall spot is now occupied by Iowa. The criticism over the drop is fair game. Baker himself had repeatedly touted the best-in-the-country ranking from 2017 - even going so far as to mention it (among over top rankings) in his state of the commonwealth speech this year. And for the Democrats eager to find the governor's Achilles heel, it's a welcome chance to …
THE BIG IDEA: A few hours after President Trump called it “disgraceful” that his attorney general is not using Justice Department lawyers to more aggressively pursue perceived critics, he declared at the White House that cops should be able to confiscate guns from American citizens without due process. “Take the guns first, go through due process second,” he said.
These might have been defining moments for any previous president, but they weren’t even the biggest stories of the day. It was just another Wednesday in Trump’s Washington, where many have become inured to comments and actions that suggest both disregard and even disdain for the rule of law.
During a televised roundtable with lawmakers to discuss what should be done to prevent future school shootings like the one in Florida, …
THE BIG IDEA: President Trump got the headlines he wanted this morning by signaling openness to modest gun-control measures, but will policy changes really follow?
Reacting to the “evil massacre” that left 17 dead at a Florida high school last week, Trump directed the Justice Department on Tuesday to draft a proposed ban on the devices known as “bump stocks.” Then he tweeted that Democrats and Republicans “must now focus on strengthening Background Checks!” And his press secretary told reporters that raising the minimum age at which a person could buy a semiautomatic weapon from 18 to 21 is “on the table for us to discuss.”
THE BIG IDEA: President Trump campaigned like a populist but has mostly governed like a plutocrat. On trade, he’s decided to follow his populist id.
Trump has few core convictions. He has been all over the place on almost every issue. Trade is the biggest exception. The president has consistently agitated for protectionism since the 1970s, and it was a signature theme of his insurgent candidacy.
On Thursday, he followed through on his campaign rhetoric by announcing that he plans to slap tariffs of 25 percent on foreign-made steel and 10 percent on aluminum.
“You will have protection for the first time in a long while, and you’re going to regrow your industries,” Trump told steel executives at a White House meeting. “What’s been allowed to go on for decades is disgraceful.”
The president added this morning …
THE BIG IDEA:
MOON TOWNSHIP, Pa.—How could conservatives be so critical of Barack Obama’s multilateral agreement with Iran to curtail their nuclear program but so supportive of Donald Trump meeting face to face with North Korean leader Kim Jong Un?
I posed that question to 30 supporters of the president over three hours on Saturday night as they waited to see Trump speak at a rally outside the Pittsburgh airport, where he campaigned for Republican congressional candidate Rick Saccone ahead of today’s special election. The answers had nothing to do with ideology and everything to do with personality.
“To me, Obama was a butt-kissing liberal. Trump is Teddy Roosevelt. He just might go in there and kick some a**,” sa…