Welcome, SCOTUS fans. The justices are still slow-walking their decisions, with only two issued on Monday, and no sitting days until March 19. We'll take a look at long-pending cases that everyone's waiting for. But news still happened, so please keep reading! Tips, suggestions and feedback welcomed at [email protected] and [email protected].

|

Pacific Legal's Formula for Winning Cert: “Evil villains, outrageous facts, and sympathetic clients”

The Pacific Legal Foundation has had quite a week.

Its 45th anniversary celebration at Ronald Reagan Presidential Library and Museum in California last weekend was bracketed by an oral argument before the U.S. Supreme Court February 28, and a cert grant on March 5—its third this term.

The argument in Minnesota Voters Alliance v. Mansky was a challenge to a Minnesota law banning political badges and clothing at polling places. The newly granted case Knick v. Township of Scott, Pennsylvania asks the court to reconsider Williamson County Regional Planning Commission v. Hamilton Bank, a 1985 precedent that requires property owners to pursue takings cases in state court before going to federal court.

Neither case hails from the left coast, but that's not a problem for Pacific Legal's president and CEO Steven Anderson. Even though it is based in Sacramento, PLF is a national liberty-oriented public interest group, he says. We caught up with Anderson, who came to the organization in 2016 after a 12-year stint at the like-minded Institute for Justice. Snippets from the conversation:

–>Why the Knick case is important: “The whole property rights bar has been clamoring for the court to do something about Williamson County for decades now. In fact, when I left IJ, I sat down with a couple of attorneys to talk about PLF and the first thing they said was, 'make sure you get Williamson Countyoverturned.' Because it's something that inexplicably prevents property owners from pursuing their federal takings cases without first exhausting the remedies of state courts. It just makes no sense.”

–>The key to success in getting cert granted: “You need doggedness and determination, and real subject matter expertise. You've got to be able to write great cert petitions because that's the way you get in the door, but you also need to find clients that judges can rule in favor of. Across the board if you look at any of PLF's cases, while it's pretty sophisticated constitutional law, at the end of the day it's a simple formula, and that's evil villains, outrageous facts, and sympathetic clients.”

→ Why a national organization is still called Pacific Legal Foundation:“Well, we were founded in 1973 by members of then Governor Reagan's gubernatorial staff. I'll be quite candid with you, when I came to PLF I thought we needed to change the name because of its connotation that it's just a West Coast organization. But we know that the court takes very seriously briefs that are written by Pacific Legal Foundation and we just couldn't give up more than four decades of brand equity where we've earned that reputation, so we decided to stick with the name. Southwest doesn't just fly in the southwest anymore. If we can become the Southwest of public interest law firms, we'll know we've made it.”

A Really Big June?

The month of June generally is a big month for the release of Supreme Court decisions. Chief Justice John Roberts Jr. has said he has tried in the past to “front load” the term with arguments so that April—the final argument month—offers less heavy-lifting for the justices and thus more time for writing opinions. But the bulk of the high court's decision work still comes down in June.

Given the pace of opinions so far, court watchers are predicting a June that will test even the most skillful speed readers.

The justices this week caught up with the number of decisions issued in argued cases over the same period in the October 2016 term: 13 out of 43 argued cases. The slowness of the current pace is best seen in looking at where the court was at this time in the October 2012, 2013 and 2014 terms: In each of those terms, the justices had issued 23 decisions in argued cases by early March.

Some of the term's toughest cases remain to be argued, including the challenge to President Donald Trump's travel ban; another partisan gerrymandering case; a racial redistricting challenge; states' challenge to the sales tax ban on online retailers with no physical presence within state borders, and a First Amendment case involving abortion and pregnancy crisis centers.

The four oldest, argued cases awaiting decision are all from the October argument cycle: a trio of employer arbitration challenges; an immigration case reargued from last term; the Wisconsin partisan gerrymander challenge, and the question of corporate liability under the Alien Tort Statute. Four justices have yet to write an opinion from that argument cycle: Roberts and Justices Anthony Kennedy, Elena Kagan and Neil Gorsuch.

Some of the lawyers-in-waiting from that cycle include high court regulars: Kirkland & Ellis partner Paul Clement; E. Joshua Rosenkranz of Orrick, Henderson & Sutcliffe; Stanford Law's Jeffrey Fisher; Campaign Legal Center's Paul Smith and Daniel Ortiz of the University of Virginia School of Law.

Catch Up With Marcia Coyle

The court may be quiet this week but there's plenty to talk about. Catch up on the month's biggest arguments, the petitions we're watching and the decisions we're waiting for in this five-minute video from Marcia.

Death Penalty Watch

Hogan Lovells partner Neal Katyal is in relist purgatory with his challenge to the constitutionality of the death penalty. His petition in Hidalgo v. Arizona has been listed for conference nine times.

A second constitutional challenge to the death penalty was filed recently in Evans v. Mississippi. Alison Steiner of the Office of the State Public Defender in Jackson is counsel of record on the petition, which has been before the justices' conference twice now. Steiner argues the death penalty violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its application.

“What sets the Arizona and Mississippi cases apart from earlier cases denied review is there is a more developed factual record in the state court proceedings,” said Robert Dunham, executive director of the Death Penalty Information Center. The high court requested the record in Hidalgo, he noted. “But also the court has a general practice of deciding cases on the narrowest possible grounds, so we can't tell whether they are holding it because they are interested in the big issue or other issues in the case,” Dunham said.

Katyal's case is a very well-developed challenge to the application of death penalty in Arizona, said Dunham, and that doesn't necessarily require the court to address the constitutionality of the death penalty nationwide. The Mississippi case, on the other hand, involves the geographic arbitrariness in the death penalty.

“There's nothing that says exercise of prosecutorial discretion is unconstitutional, but when discretion is exercised in a manner that is so grossly out of step with the way in which every other prosecutor in the state is exercising discretion that suggests problems,” he said. “We see that across the country where particular counties that exercise prosecutorial discretion in seeking the death penalty are outliers.”

In other news …

There's a new federal law clerk hiring plan that mirrors the one that collapsed in 2013 after strong-willed appellate judges like Alex Kozinski and Richard Posner decided to ignore the rules. We mention it because the plan, if it works, may have an impact down the road on the diversity of Supreme Court clerks, which we wrote about in December.

As if he's not busy enough challenging the Trump travel ban, Neal Katyal of Hogan Lovells has joined the legal team defending Pennsylvania's redrawn congressional districts before the Supreme Court. Our sibling publication The Legal Intelligencer has a report.

The justices refused to review a drug company's challenge to New Hampshire's original contract with Cohen Milstein Sellers & Toll to assist in the state's investigation of opioid manufacturers. High court veteran Lisa Blattof Arnold & Porter led the due process challenge on behalf of Endo Pharmaceuticals. Motley Rice's Linda Singer, formerly of Cohen Milstein, is now lead lawyer for New Hampshire.

The U.S. Justice Department was in the odd position of supporting what it called a “regrettable” cy pres agreement stemming from the government's $680 million settlement with Native American ranchers and farmers in 2011. Attorney General Jeff Sessions in June 2017 mandated that department attorneys should no longer enter cy pres agreements. But the department said there were no grounds on which the high court should grant review to two class members objecting to the $380 million cy pres agreement in the Native American settlement.