Remains to Be 'Sveen' | RBG, the Trailer | Risk-Reward in the Trump DOJ

Supreme Court Brief
Tony Mauro
Marcia Coyle
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.

It's almost spring! Can June be far behind? Let us know what you’re watching at and
Resurrecting a Once Potent Clause 

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 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.

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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.
➤ 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.

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