Welcome to Supreme Court Brief. It's the last day of the term—for oral arguments. The justices return this morning for one final argument and it's a big one—the closely watched dispute over the Trump administration's travel ban. We're watching for how much consideration the justices give to what President Trump has said about the ban, and will one amicus brief of the dozens stand out? We'll know soon. Thanks for reading SCB. We love your feedback, tips and suggestions: [email protected] and [email protected].

 

Why Hawaii?

 

When Hawaii Lt. Gov. Douglas Chin fields questions from the public about his state's leading role in opposition to the Trump administration's travel ban, he said he is often asked: “Why Hawaii?”

The answer is not—as U.S. Attorney General Jeff Sessions once famously described it—because Hawaii is “an island in the Pacific,” where a federal judge last year blocked the travel ban. “We take issue with being called an island in the middle of the Pacific,” Chin told reporters on a recent briefing call. “Hawaii is a sovereign state which has been joined by many other states [in the litigation battle against the travel ban].”

The answer to “Why Hawaii?” is simple in Chin's view. “We are one of the most ethnically diverse states in the country,” he said. “One out of four residents is an immigrant and that doesn't include the people who are the children of immigrants, such as myself, or the grandchildren of immigrants, such as the governor.”

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Chin, who served as Hawaii's attorney general for nearly three years until becoming lieutenant governor in February, was born in Seattle to Chinese immigrant parents. He graduated from Stanford University and the University of Hawaii's William S. Richardson School of Law. Hawaii's governor, David Ige, was born in Pearl City, Hawaii, to ethnic Japanese Americans of Okinawan descent. He is the first person of Okinawan descent to be elected governor of a state.

“We also have a very active Japanese citizens league which remembers the internment of Japanese Americans as well as the Korematsu decision (U.S. Supreme Court decision upholding the internment during World War II),” said Chin. “They also remember the Immigration and Nationality Act—when and how it was passed by Congress. It did away with nationality-based quotas.”

In Trump v. Hawaii, set for argument this morning, one of the major issues is whether the travel ban violates the Immigration and Nationality Act because it discriminates on the basis of nationality. “Most importantly, we have a small, but very proud group of Muslims in our state,” said Chin, noting that the Muslim Association of Hawaii and Dr. Ismael Elshikh, the association's Imam, are original plaintiffs with Hawaii.

Chin's legal team, now under acting Attorney General Russell Suzuki, has worked alongside a Hogan Lovells team throughout the travel ban's trip through the federal court system. Hogan Lovells partner Neal Katyal will represent Hawaii, the Muslim Association and Dr. Elshikh, during this morning arguments.

Katyal will face U.S. Solicitor General Noel Francisco. The justices have scheduled the usual 30 minutes per side, but this case—perhaps the biggest of the term—may run longer if, as is likely, the justices still have questions and the chief justice allows more time.

The court plans to release same-day audio—a rare move. Stay tuned.

 

On the Lawyering Over Texas' Electoral Maps

 

A complicated redistricting case that has been going on for seven years, involving congressional and legislative seats, challenged by nine groups of plaintiffs, probably demands more than the usual two advocates in the U.S. Supreme Court to argue for and against what a three-judge district court ruled.

That's exactly what Abbott v. Perez required on Tuesday when a quartet of lawyers—two per side—took turns at the high court lectern. In fact, Tuesday could have been labeled “quartet” day. Four lawyers sat behind the Abbott quartet as they awaited their own turn in the morning's second argument—the antitrust case Animal Science Products v. Hebei Welcome Pharmaceutical Co.

But back to Abbott, in which Texas is challenging a ruling that the state legislature engaged in intentional discrimination in its redistricting plans in 2011 and 2013.

Texas Solicitor General Scott Keller (pictured above) argued the state's case. Keller is a former clerk to Justice Anthony Kennedy and former chief counsel to GOP Sen. Ted Cruz. He has argued 11 cases, including Tuesday's challenge. He drew support from the U.S. Justice Department, represented by Deputy Solicitor General Edwin Kneedler.

Speaking of the Justice Department, the Obama administration's Justice Department originally joined civil rights groups and others in challenging the Texas maps as discriminatory. But the department under U.S. Attorney General Jeff Sessions switched positions to support the maps.

On the other side were some newer faces. Max Renea Hicks of Austin, a sole practitioner, made arguments on behalf of the challengers to the congressional districts. He has argued five high court cases, his first 40 years ago in 1978.

Representing challengers to the state House districts was Allison Riggs, a staff attorney at the Southern Coalition for Social Justice. Her focus at the coalition is on voting right and environmental justice. A first-timer at the Supreme Court lectern, she is an experienced litigator, having litigated redistricting cases in Texas, Florida and North Carolina.

At the end of more than an hour of arguments, the outcome was difficult to call. A good bit of the argument time of all four lawyers was spent on whether the justices actually had jurisdiction to review the three-judge court's ruling.

 

SG's Office Is Focus of New FOIA Suit

 

A watchdog group filed a lawsuit on Tuesday exploring whether and how much the conservative group Alliance Defending Freedom—lead counsel in this term's Masterpiece Cakeshop case and National Institute of Family and Life Advocates v. Becerra—has communicated with SG Noel Francisco.

The Democracy Forward Foundation first sought the documents last December but the department “failed to sufficiently respond,” according to its complaint.

At Jones Day, Francisco argued in the 2015 Supreme Court case Zubik v. Burwell, a challenge to the contraceptive mandate in the Affordable Care Act that was backed by the Alliance Defending Freedom and other organizations. During his confirmation for the position of solicitor general last year, senators asked about his involvement and he said he recused himself from handling the Zubik case on remand.

As solicitor general, Francisco last December argued for the United States in support of the baker in the Masterpiece Cakeshop case who refused to make a wedding cake for a same-sex couple. The baker Jack Phillips was also backed by ADF.

“We are not saying he has done anything unethical or wrong,” said John Lewis, a former Mayer Brown associate who recently joined Democracy Forward Foundation. “We don't have access to the documents that would show the extent of his connections with the ADF, and that is what we are asking for.”

The SG's office declined to comment.

In Other Action at the Court

 

  • Business interests prevailed Tuesday at the high court in a ruling that held foreign corporations can't be liable in U.S. courts for alleged human rights violations abroad.
  • The justices turned back a constitutional attack to the administrative procedure for challenging patent validity at the U.S. Patent and Trademark Office.
  • The court heard argument in a closely watched antitrust case involving U.S. vitamin purchasers and Chinese manufacturers. Bloomberg has a recap here, and Reuters here.
  • “The US Supreme Court offered new evidence on Tuesday that conservatives have exerted control and liberals are not going quietly, in a pair of 5-4 decisions that could explain the remarkably slow pace of decisions this session,” writes CNN's Joan Biskupic.
  • Supreme Court reporters Tuesday night didn't hold back on their observations of the White House guest list for the state dinner with French leader Emmanuel Macron:

UH OH. Official WH guest list calls him The Chief Justice Of The Supreme Court Of The United States. Every #scotus reporter learns early he is Chief Justice of the United States, for his power reaches beyond the Supreme Court

—Robert Barnes (@scotusreporter) April 24, 2018