The public line outside of the Supreme Court on Monday snaked around the corner. An old-fashioned demonstration with music, bull horns and placards played out on the sidewalk below the plaza. Had the culture wars returned to the high court? No, there were no abortion, religion or race arguments on tap. It was a high stakes, union fee challenge in the morning. Tuesday's Microsoft challenge is unlikely to draw that type of a crowd but it is a huge case. We take a peek at the arguments that the justices will hear. Oh, and guess what gets under the skin of the chief justice of the United States? We have the answer.

This morning we're watching for decisions at 10 a.m. Let us know what you're watching at [email protected] and [email protected].

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A Peek at Microsoft's SCOTUS Strategy

Today is the big day when the United States squares off with Microsoft before the U.S. Supreme Court in a digital privacy case that has been built up beyond imagination as something of a tech-era Armageddon.

Deputy Solicitor General Michael Dreeben—the Justice Department's top criminal law expert—is taking a break from the Mueller special counsel team to argue that U.S. search warrants should be able to access emails that are stored in servers overseas. He goes up against E. Joshua Rosenkranz, the partner at Orrick, Herrington & Sutcliffe who will defend Microsoft and argue that worldwide chaos would ensue if the government gets its way.

In a phone briefing for the media last week, Rosenkranz and Microsoft President and Chief Legal Officer Brad Smith offered a glimpse at their strategy before the court, and why the case matters. Some excerpts to whet your appetite:

Smith on why Microsoft persisted: “The case arose from a warrant that we received in late 2013. It happens to involve email that is in our data center in Ireland just south of Dublin. We therefore went to court initially before the magistrate to contest it … Shortly after we lost the decision before the magistrate, I was doing a series of meetings in Berlin. Everyone who showed up at the meeting actually had the magistrate's decision. A chief information officer for one of the German states came to me and he said, 'Unless you are able to turn this around, we will never be able to put our data in any data center that is owned or operated by an American technology company.'”

Rosenkranz on the government's big concession: “Unlike most of the extraterritoriality cases that have come before the court, this one gets to the court with a huge concession by the government. The concession is that this statute, the Stored Communications Act, does not reach overseas, and obviously it doesn't. The Congress that wrote this statute in 1986 simply did not conceive of a world where you could sit in Redmond, Washington, and access a lifetime of emails stored clear across the world.'

Rosenkranz's three themes: “The first is that what is happening in Ireland is very significant, as much as the government tries to trivialize it. What is happening in Ireland is the execution of a law enforcement search and seizure. We know something significant is happening in Ireland because EU regulators are outraged. We know something significant is happening in Ireland because if another country did this to us, we would get outraged.”

“Second theme, the government's position is a recipe for global chaos, which is of course exactly what the presumption is designed to protect against.”

“Third theme, this is really complicated stuff. You're going to hear debates about law enforcement prerogatives, about international relations, about where the cloud is headed. This court is not a forum for this debate. The court doesn't have the tools to figure out the best balance. It's a policy decision that requires a scalpel and all the court has is a meat cleaver.”

Rosenkranz's head-scratcher: “This whole notion that criminals can game the Microsoft system to put them outside of the reach of the U.S. government has always struck me as a head scratcher. If you want to make sure your emails are out of access to the U.S. government, you don't use Microsoft, which is very much accessible to the U.S. government. You go to a service provider that has no location within the United States and that therefore is outside of the U.S. jurisdiction. That road map exists.”

Recusal Watch: In case you were wondering, none of the justices appear to own Microsoft stock, so recusals appear unlikely today. Chief Justice John Roberts Jr. sold between $250,000 and $500,000 in the company's stock in 2016, enabling him to participate in Microsoft v. Baker, a class action case. According to his financial disclosure, Justice Stephen Breyer owns up to $100,000 of stock in Cisco, which joined in an amicus brief in the Microsoft case. Justices usually recuse when they own stock in a direct party, but not amicus groups—though Fix the Court and other reformers think they should consider doing so.


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You Won't Like John Roberts When He's Angry

OK seriously, no one would say the chief justice has a bad temper. But occasionally—especially when he thinks the court's rules or traditions are being ignored or circumvented—he can make his displeasure known, at a slow boil. As we reported Monday, one such moment came February 20 during argument in City of Hays, Kansas v. Vogt, when facts that were not in the record were being asked about.

“As far as I'm concerned,” Roberts said, “coming in and saying I want to know about this thing that's not in the record is no different from somebody else coming off the street and saying: 'Hey, wait a minute, I know what happened in this case.'”

The non-record material could be discussed, he said, though he added, “I'm just saying I will discount the answers because it's not something that's in the record.”

Click here to read the full story—and listen to the three-minute audio clip.

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ICYMI

5 Key Moments From Supreme Court's Union-Fee Arguments

What to know: Neil Gorsuch, who holds the key vote in Janus v. AFSCME, was silent during yesterday's argument. Court watchers expect him to vote against the union and scholars will pour over anything he decides to write in the case.

What to know: The fight will continue in the U.S. Court of Appeals for the Ninth Circuit—unfriendly turf for the Trump administration.

Also on Monday, the high court granted review in a death penalty appeal (Madison v. Alabama), an arbitration case (New Prime Inc. v. Oliviera) and an age discrimination dispute (Mount Lemmon Fire District v. Guido), each of which will likely be argued next term, beginning in October.

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