Catching Up With Carter Phillips | The Haiku Amicus Brief | Jeff Fisher's Expanded Role
We caught up with Sidley Austin's Carter Phillips before his big argument Tuesday in a closely watched antitrust case. And did you see the haiku amicus brief the justices allowed to be filed? Scroll down for all the action at the high court.
April 24, 2018 at 04:28 PM
5 minute read
Welcome to Supreme Court Brief. Two more days left—of arguments, that is. Carter Phillips returns to the lectern this morning—arguing for the Chinese ministry of commerce as an amicus in an antitrust case loaded with Vitamin C (actually). Also: the justices, gearing up for Wednesday's blockbuster travel-ban arguments, permitted the filing of an unusual brief. Scroll down for more on that. We're expecting decisions this morning—so stay turned. We love your feedback. Send any tips or thoughts to [email protected] and [email protected]. Thanks for reading SCB.
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Video: Catching Up With Carter Phillips
Today's big business case Animal Science Products v. Hebei Welcome Pharmaceuticals Co. is all about Vitamin C—and China.
Plaintiffs are American purchasers of Vitamin C. They claim that Chinese manufacturers, who have cornered 60 percent of the worldwide market for the vitamin, were guilty of price- and supply-fixing in violation of American antitrust laws.
But the Chinese Ministry of Commerce countered that its export pricing is compelled by Chinese law, also claiming that the ministry has “unquestioned authority” to interpret Chinese law. The U.S. Court of Appeals for the Second Circuit agreed, stating that it was “bound to defer” to China's interpretation as a matter of comity.
Sort of like Chevron deference on the world stage.
One result of all this is that China will, for the first time, appear before the U.S. Supreme Court as amicus curiae.
Carter Phillips of Sidley Austin, who has argued more cases before the Supreme Court than any other lawyer in private practice, will be advocate on behalf of China. In advance of the argument, we sat down with Phillips to talk about the case, the challenges of representing a foreign sovereign, and about his practice.
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A New Meaning for 'Brief': Three Lines of Haiku
In the run-up to Wednesday's arguments in the historic travel ban case Trump v. Hawaii, the U.S. Supreme Court on Monday paused for a moment to allow a California lawyer to file an amicus curiae brief that takes the form of a haiku.
The text of the haiku written by David Boyle of Long Beach, California, goes like this:
A haiku ban might
not be anti-Japanese
“per se”; but . . . you know.
Boyle also summarized its meaning: “Subtext/context is of import in this case; rather as a bird's shrill tweets might give clues to its behavior.”
Asked why he used the haiku format, Boyle said in a phone interview, “The ban is so indefensible that I didn't think I needed to say a lot.” He also said the brief could be the shortest ever accepted by the court.
As the haiku and his comments might suggest, the brief was filed on the side of Hawaii and those challenging the Trump Administration's policy against allowing certain categories of aliens to enter the United States.
Boyle has filed other briefs in related cases and also wrote an analysis of the Christian-oriented briefs in the Hawaii case. So, as he told the court, it was time for a really brief brief.
“Amicus did not think a one-page brief would take too much of the court's time to read,” Boyle wrote in his motion to for leave to file the brief. He added: “We live in a diverse world, and unless someone has prejudice against Japanese (!), or against poetry (!!), “creative” submissions to the court may not be considered a problem. 'Despise not the Muse.'”
The submission might have gone unnoticed if the court hadn't prominently stated on page one of its order list Monday that Boyle's motion was granted.
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In Case You Missed It: Fisher's New Gig, and Rosenstein's Respite (at the High Court)
Stanford Law School's Jeffrey Fisher (above), a regular advocate at the high court, is joining O'Melveny & Myers as special counsel. Fisher will maintain his position at Stanford and as head of the school's Supreme Court clinic, a post he's held since 2006. Fisher said he was drawn to O'Melveny partly for its “great commitment to pro bono work.” The 47-year-old Fisher has argued 35 cases before the high court, including three this term that are pending decisions.
➤➤ Appearing at the Supreme Court for the first time, Rod Rosenstein, the deputy U.S. attorney general, borrowed traditional SG's office grab—”not bad,” he told reporters—and escaped some of the scrutiny focused on his oversight of Robert Mueller's Russia investigation. The New York Times has more coverage of Rosenstein's argument here, and SCOTUSblog posted a “view” from the court pieceon the hearing.
➤➤ The justices, weighing a challenge to the hiring of administrative law judges at the SEC, steered clear of debate over presidential firing power.
➤➤ CNN looks at how the federal judiciary is weighing removing “formalistic” hurdles to filing workplace conduct complaints against judges. “The new channel could make it easier for some victims to come forward. But it could also reinforce the secrecy of the system and potentially hide wrongdoing,” according to the report.
Thanks for reading Supreme Court Brief—we'll be back Wednesday. We love your feedback—tips, thoughts, suggestions: [email protected] and [email protected].
—Marcia and Tony
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