The Supreme Court is still enjoying its winter break, which means the justices have been fanning out across the land. Justice Ginsburg's near-marathon of public appearances included a talk at NYU that urged optimism in the face of bleak numbers regarding women's status in the legal profession. In our briefing today, we reveal Ginsburg's favorite bagel and look ahead to the marquee case of U.S. v. Microsoft, set for argument February 27. In addition, an update on the government's unusual effort to get the court to sanction ACLU lawyers in an abortion case.

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Gearing Up for Microsoft

No confirmation yet, but Deputy U.S. Solicitor General Michael Dreeben may soon be taking another detour from working for special counsel Robert Mueller to argue before the U.S. Supreme Court in the high-profile digital privacy case of United States v. Microsoft.

Numerous Microsoft-side lawyers are privately predicting that Dreeben, the Justice Department's criminal law guru, will step to the lectern on February 27. And tellingly, his name is on the government's main brief, though his boss Noel Francisco is counsel of record.

If Dreeben does appear, it will be his second argument this term in between whatever undisclosed work he is doing for Mueller's Russia investigation. The first argument was last November's Carpenter v. United States, a test of whether police can access cellular phone data without a warrant. Microsoft asks whether U.S. law enforcement agencies can obtain email content stored in foreign servers.

Both cases involve the 1986 federal Stored Communications Act. Who knew the 1986 federal law would be so alluring? But seriously, the two cases combined will make for “an incredible term for the Fourth Amendment and privacy,” said DLA Piper partner Ilana Eisenstein, a former colleague of Dreeben at the SG's office.

Veteran advocate E. Joshua Rosenkranz, partner at Orrick Herrington & Sutcliffe, will argue for Microsoft, his second and final argument of the term. A few months ago, Rosenkranz told us he is limiting himself to two Supreme Court arguments a term, in part to spread the work around to colleagues, including women. Orrick partner Kelsi Corkran will be arguing February 20 in a Fifth Amendment case, City of Hays, Kansas v. Vogt.

Measured by the number of amicus briefs, if nothing else, Rosenkranz has the upper hand so far. Twenty-three briefs side with Microsoft, while only one backs the government.

Seven other briefs were filed “in support of neither side,” nominally, at least, though some are fairly helpful to Microsoft. The “neither side” brief filed by Ireland, for example, ends with this sentence: “Finally, in the absence of any obvious error in the interpretation of the Court of Appeals for the Second Circuit [in favor of Microsoft,] Ireland would propose that the judgment be affirmed.” Not exactly neutral. Thomas Goodwin of McCarter & English was counsel of record on the Ireland brief.

That solitary pro-government brief is by Vermont Solicitor General Benjamin Battles on behalf of 35 states plus Puerto Rico, arguing that law enforcement agencies should be able to obtain email content through search warrants, even if stored outside the country (in this case, Ireland.)
After all, the emails can be retrieved by tapping a few buttons on Microsoft computers in Seattle.

But lawyers on the side of Microsoft appear confident that two strong currents in Supreme Court doctrine will carry them to victory: adhering to the text of a statute and the court's disdain for extraterritorial application of U.S. laws.

“Congress was not contemplating cloud computing” when it wrote the law at issue, says Eisenstein, who is counsel of record on an important brief for European high-tech groups warning about the “looming clash” between the U.S. position and new privacy rules in Europe that will take effect in May.

Other key briefs worth reading: The Policing Project at New York University School of Law filed its first-ever Supreme Court brief urging a legislative debate on this and other police surveillance issues; the brief for Amazon, Apple, Facebook and other tech giants is by a relative Supreme Court newcomer, Marc Zwillinger of Zwillgen; a group of computer scientists tell the court that location matters for cloud computing; and a coalition of media organizations warns that a government win could jeopardize news-gathering when data is stored in countries hostile to a free press. (Disclosure: Tony Mauro is on the steering committee of the Reporters Committee for Freedom of the Press, whose executive director Bruce Brown is counsel of record on the media brief.)

Catching Up With Marcia Coyle

The justices are on winter break, but there's still a lot happening. Marcia Coyle breaks it down in this two-minute video. Click here to watch.

Relisted (Again): High Court Ethics Fight

For everyone following the ethics challenge filed by Solicitor General Noel Francisco against American Civil Liberties Union attorneys, here's an update:

The justices have relisted the solicitor general's petition for their Feb. 16 conference—the first conference after the court's winter break. This is the fourth time the case—Hargan v. Garza—has been listed for conference. Given the long winter break, the justices may take some action that day or the following Tuesday when they are back on the bench for the next round of arguments.

Francisco is asking the court to vacate an en banc D.C. Circuit ruling that upheld a trial judge who allowed a pregnant immigrant teenager to seek an abortion. Francisco wants the case remanded to the district court with orders to dismiss all claims for future relief sought by pregnant unaccompanied minors. He argues that vacating the D.C. Circuit ruling is justified based on alleged misrepresentations to the government by ACLU lawyers on the timing of their client Jane Doe's abortion. Francisco has also suggested sanctions against the lawyers.

The ACLU's response, filed by Carter Phillips of Sidley Austin, is here.

RBG's Favorite Bagel

On the evening of Feb. 1, the Washington Post was livestreaming the editor of the Forward's interview with Justice Ruth Bader Ginsburg at Adas Israel Synagogue in the Cleveland Park neighborhood of Northwest D.C. Editor Jane Eisner's very last question to the justice: What is her favorite bagel?

As I (Marcia here) leaned forward to discover that nugget—one that I didn't know after nearly 25 years of covering Ginsburg—the livestream is cut off. What!!! Inquiring minds (at least my mind) want to know!

The Forward has now come to the rescue by publishing the well-worth-your-time interview transcript here. The snippet from the conversation is below:

Eisner: If I can take a personal privilege here it's a question that I had the privilege of asking President Obama and Prime Minister Benjamin Netanyahu and Susan Rice when she was national security adviser. What is your favorite flavor of bagel?

Ginsburg: A New York poppy seed bagel.

Eisner: This is amazing! I did not know the answer to this and this may be the only thing that Barack Obama and Benjamin Netanyahu and Ruth Bader Ginsburg agree on. They all pick poppy seed. Wow. I am amazed.

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