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.
THE BIG IDEA: Get ready for Macron-mania.
Donald Trump was the first president since Calvin Coolidge, a century ago, not to welcome a foreign leader for a state visit during his first year in office. Fifteen months into his presidency, Trump is finally rolling out the red carpet for French President Emmanuel Macron. The country’s tricolor flag is flying all over downtown, and three days of events are planned in the capital city. After Macron lands this afternoon, the presidents and their wives will take a helicopter to Mount Vernon, George Washington’s home, for a sunset dinner on the terrace overlooking the Potomac.
Trump and Macron will meet one-on-one tomorrow morning in the Oval Office. Vice President Pence will host a lunch for Macron at the State Department, and he will tour Arlington National Ceme…
THE BIG IDEA: SAN FRANCISCO—When Mark Zuckerberg is under the klieg lights on Capitol Hill today, he will emphasize Facebook’s endorsement of the Honest Ads Act.
“We know some members of Congress are exploring ways to increase transparency around political or issue advertising, and we’re happy to keep working with Congress on that,” the founder and chief executive of the social networking giant plans to say, according to his prepared testimony.
Technology companies pride themselves on being insulated from the sorts of burdensome government requirements that apply to most other industries. So why on Earth would Zuckerberg support a new law that would be expensive to comply with and, thus, ostensibly hurt his bottom line?
Here are six reasons:
1. Desperate times calls for desperate measures.
The war on drugs is an insult to the intelligence of the American people. There are mountains of evidence proving that the biggest importers of harmful, addictive, mind diminishing street drugs is the government. The drug laws that exist do not apply to the government agencies that bring these substances to our country. They are only designed to keep everyone else from this extremely lucrative business and give the establishment another reason to oppress people.
THEY ALSO RUN DRUGS ON THE BITCHES FATHER FLEET OF SHIPS! Top Republican Husband-Wife Duo Caught Funneling Money to Offshore Tax-Free Haven
US Department of Transportation Secretary Elaine Chao and her husband Republican Senate Majority Leader Mitch McConnell, recently attended a…
Mitch McConnell’s Freighted Ties to a Shadowy Shipping Company
After drugs were found aboard the Ping May, a vessel owned by his wife’s family’s company, Colombian authorities are investigating.
THE BIG IDEA: President Trump said in an interview that aired on Fox News this morning that “the NFL owners did the right thing” by altering the league’s national anthem policy. Football players will no longer be required to appear on the field when the anthem plays before games, but teams and the league will now be allowed to impose discipline for those who protest publicly during the song.
“I don’t think people should be staying in the locker rooms, but still I think it’s good,” Trump said on “Fox & Friends.” “You have to stand proudly for the national anthem!” The president added that athletes who don’t stand “shouldn’t be playing.” “Maybe they shouldn’t be in the country,” he mused.
Even by Trump standar…
Trump: ‘I am totally opposed to domestic violence of any kind’
BY JAMES HOHMANNwith Breanne Deppisch and Joanie Greve THE BIG IDEA: President Trump has not nominated anyone to be the director of the Office on Violence Against Women in the Justice Department.
The person in this position oversees a budget of more than $450 million and is supposed to be the administration’s leading voice on domestic and sexual violence, both nationally and internationally. By controlling the flow of grants, the director can influence programs to better protect and serve victims. Women’s advocates lobbied for years to elevate this job and require that the Senate confirm the president’s pick.
It is one of more than 200 high-profile appointments that Trump has left vacant over the past 13 months, far more than his predecessors. But this opening has become especially glaring against the backdrop of the White House’s botched response to revelations that former senior aide Rob Porter allegedly assaulted both of …
Juan Cole, Informed Comment Cole writes: "John Kelly, White House chief of staff, is an immigrant-hating bigot, as demonstrated by a long series of Draconian statements and measures that would have embarrassed most normal people into a lifetime vow of silence in their wake." READ MORE
THE BIG IDEA: Martin Luther King Jr.’s final speech, delivered 50 years ago tonight in Memphis, is well remembered for its prophetic musings on mortality. “I've seen the Promised Land,” he said on a stormy night at the Mason Temple. “I may not get there with you. But I want you to know tonight that we, as a people, will get to the Promised Land.”
The reverend’s declaration that he was not worried about anything and did not fear any man – because he had seen the glory of the coming of the Lord – followed more than 40 minutes of reflection on the cause that brought him to Memphis – and martyrdom. Slain at just 39, the extemporaneous oratory on the eve of his assassination ensured that King would be remembered as a sort of American Moses. But the meat of his …