Welcome back to Supreme Court Brief. The first week of the final argument cycle of the Supreme Court term ends today, with a major Native American law case capturing interest. It was a big day at the court Tuesday, and not just because of the argument in South Dakota v. Wayfair. An otherwise routine admission to the Supreme Court bar was of interest, as was a decision that allied Justice Neil Gorsuch with the court's liberals. Thanks for reading, and we'll be back on Monday. We welcome feedback at [email protected] and [email protected].

 
 

The Long History of 'Washington v. United States'

Today's arguments haven't reached the high profile of Tuesday's high-stakes South Dakota v. Wayfair, or next week's blockbuster Trump v. Hawaii.

But Washington v. United States, set for argument today, has deep history and enormous importance for Indian tribes. It's a dispute that dates back more than a century over how faithful the government must be to the words of ancient treaties meant to protect fishery rights at the heart of tribal life. The tribes are challenging Washington state's redirection of salmon-bearing streams and other moves that endanger fragile fisheries.

The litigation has been underway so long that, belatedly, Justice Anthony Kennedy discovered last month that he had to recuse himself because, as the clerk of the court announced, “while serving as a judge on the Ninth Circuit Court of Appeals, he participated in an earlier phase of this case.” That was in 1985!

➤➤ Believe us, reading the briefs will give you a new appreciation for salmon beyond its status as a versatile weeknight meal. As the U.S. solicitor general's brief states in its first paragraph, the Supreme Court stated in 1905 that in Lewis and Clark days, salmon was viewed as “not much less necessary to the existence of the Indians than the atmosphere they breathed.”

Goodwin Procter partner William Jay, who will argue on behalf of the Suquamish and other Indian tribes of western Washington, also waxes poetic about the importance of the right to fish salmon.

“Salmon begin and end their lives with a long journey,” he wrote in his brief. “After their juvenile period, young salmon travel downstream to the ocean. And every salmon, if it survives long enough, will make the arduous trip, perhaps hundreds of miles, back upriver to the same stream where it was born. There salmon reproduce and die.”

Washington has responded claiming that a Ninth Circuit ruling favoring the tribes “violates federalism and comity principles by requiring Washington to replace hundreds of culverts, at a cost of several billion dollars,” when the culverts have little or no connection to the fisheries. Washington solicitor general Noah Purcell will argue on the state's behalf.

 

Gorsuch Aligns With Liberal Wing in Striking Down Immigration Law 

When President Donald Trump was looking to fill the vacancy created by the death of Justice Antonin Scalia, he said he wanted to find someone like Scalia, a proponent of originalism. Enter Neil Gorsuch. On Tuesday, Gorsuch flexed his originalist chops to conclude the clause defining “crime of violence” in federal immigration law was unconstitutionally vague.

Gorsuch joined the court's liberal wing in a 5-4 decision written by Justice Elena Kagan. The case, Sessions v. Dimaya, was argued for the second time after the justices apparently deadlocked after Scalia's death in 2016. The Scalia connection in Dimaya is more than just Gorsuch's originalist approach to the issue before the court. The majority relied heavily on a 2015 decision by Scalia—Johnson v. United States—which also examined the clause “crime of violence” in the Armed Career Criminal Act and found it unconstitutionally vague.

Gorsuch used his concurring opinion in Dimaya to answer Justice Clarence Thomas. Thomas questioned, in his dissenting opinion, whether the court's void for vagueness doctrine had roots in the Constitution as originally understood. It does, Gorsuch said.

“And while the statute before us doesn't rise to the level of threatening death for “pretended offences” of treason, no one should be surprised that the Constitution looks unkindly on any law so vague that reasonable people cannot understand its terms and judges do not know where to begin in applying it,” he wrote.

Dimaya's counsel, E. Joshua Rosenkranz of Orrick, Herrington & Sutcliffe, said:

“Like Justice Scalia before him, Justice Gorsuch demonstrated that due process is not a liberal/conservative issue. His approach was originalism at its finest. He explained exactly why the Constitution keeps a check on the government's arbitrary exercise of power, and why the Framers cared about the mischief of vague laws. And he read the due process clause, which covers not just criminal cases, but 'Life, Liberty, or Property.'”

Gorsuch's opinion, he said, suggested “that all manner of harsh penalties, like civil commitment, losing a business license, or foreclosure are subject to just as strict constitutional protections.”

The Dimaya decision affirmed an opinion by the late Judge Stephen Reinhardt, the “liberal lion” of the Ninth Circuit.

A Notable Bar Admission at the Supreme Court

An otherwise routine Supreme Court bar admission Tuesday morning seems worth noting.

Assistant to the U.S. solicitor general Jeffrey Sandberg, who argued a caseon Tuesday, moved the admission of his husband Elliott Mogul, a fellow Yale Law School graduate. Chief Justice John Roberts Jr. granted the motion,mentioning the applicant by name. It all happened quickly and without fanfare, but it may be the first time—or one of the first—that a lawyer has moved the admission of his or her same-sex spouse to the Supreme Court bar in the court chamber.

➤➤ The episode takes on special meaning because it was the Supreme Court that declared in Obergefell v. Hodges in 2015 that same-sex marriages were protected by the Constitution. Roberts was one of the four dissenters.

Neither court officials nor a spokeswoman for the solicitor general's office could confirm whether it was a first, but there was a sense that something rare had occurred.

“My guess is that with the volume of bar admissions, it's probably happened before. But that's a guess,” said Paul Smith, a veteran advocate who is gay. “That said, I'd say it's worth a mention. Given that it's less than three years since the court's ruling in Obergefell was accompanied by four separate strongly worded dissents, it's interesting to see such an event happening without anyone batting an eye.”

In Case You Missed It…

–> Sotomayor was back on the bench after breaking her left shoulder at home.

–> The Microsoft email privacy case quietly ended in a per curiam.

–> Three takeaways from the court's argument over online sales taxes.