The White House kept its nomination of Brett Kavanaugh secret until the last moment, but we all knew he was a leading contender, right? There was a lot written on Kavanaugh in the runup to Monday's big primetime reveal, and today we put a fresh spotlight on his first—and only—Supreme Court argument. Plus: Anthony Kennedy's retirement means Justice Clarence Thomas gets a new seat, and a new title. Thanks for reading Supreme Court Brief. We love your feedback. Contact us at [email protected] and [email protected].

 

 

When Brett Kavanaugh Got Roughed Up By the Supreme Court

If confirmed, U.S. Supreme Court nominee Brett Kavanaugh will follow in the footsteps of the late justices William Rehnquist and Antonin Scalia—not just doctrinally, but in having argued before the high court only once in their lives.

Yes, Kavanaugh argued in one case—and lost—in 1998, in Swidler & Berlin v. United States. It was a high profile case of special interest to lawyers. At issue was whether the lawyer-client privilege survives after the client dies.

The client was Vince Foster, the former Clinton administration aide who would later commit suicide. As part of the Travelgate investigation in 1993, Independent Counsel Kenneth Starr subpoenaed the notes of Foster's lawyer, Swidler & Berlin partner James Hamilton, who had talked to Foster shortly before his death. Hamilton argued to the court that the privilege should keep the notes private.

Kavanaugh, who was a deputy to Starr, had just returned to Kirkland & Ellis when he argued before the court in favor of the subpoena. He did not start off well.

Kavanaugh told the court that shielding “a critical category of evidence” would lead to “extreme injustice.” He added, “Not our words, the words of Mueller & Kirkpatrick.”

Chief Justice William Rehnquist interjected, “Who are Mueller & Kirkpatrick?”

Kavanaugh quickly replied, “They are two commentators on the law of evidence.” “Huh,” said Rehnquist, prompting laughter in the courtroom.

Justice John Paul Stevens chimed in with a chuckle, “They're not quite as well-known as Professor Wigmore and the like.”

Sounding nonplussed, Kavanaugh continued making his point without comment. Later, Kavanaugh referred to the exchange, with an appropriate measure of humility. “Well, with hesitation at raising their names again, Mueller & Kirkpatrick do suggest that…”

By the way, that's not the Mueller you might be thinking of. Christopher Mueller is a professor at University of Colorado Law School and co-author of several Evidence treatises. (He told us Tuesday he is not related to special counsel Robert Mueller.)

Kavanaugh got roughed up in other exchanges with the justices that day. Both Rehnquist and Scalia did not seem to have enjoyed their experience either:

➤➤ Rehnquist, then a Justice Department attorney, argued before the court in January, 1971 in a Selective Service case Ehlert v. United States. He won for the government, but he did not particularly enjoy the experience. “My adrenalin was high, and I sat like a greyhound in the slip waiting for my chance to begin,” he wrote in his 1987 book The Supreme Court. “I was drenched with sweat.”

➤➤ Scalia, also a young Justice Department lawyer at the time, argued in 1976 in Alfred Dunhill of London, Inc. v. Cuba, a dispute over Cuban cigars. His side also won, but he too seemed unsatisfied by the experience. “I had two questions my whole time. It was awful,” he told legal writing expert Bryan Garner in 2008. “Face to face, you know, I'm just saying what I've already said [in the brief], I'm like, 'C'mon, guys, give me a hand here! … How can I help you? What are you concerned about?'”

Lesson learned: The best way to avoid arguing before the Supreme Court is to become a justice. That way, you get to ask the questions, not answer them.

 

Justice Clarence Thomas in the 'Right' Seat

When the new Supreme Court term begins on Oct. 1, there may be a new justice sitting to Chief Justice John Roberts's far left. But there also will be a new senior associate justice to his immediate right: Clarence Thomas.

Thomas is now the longest serving justice on the high court. His senior status means he speaks second—after the chief justice—during the court's conferences, and when the chief justice is in dissent and Thomas is in the majority, Thomas gets to assign the majority opinion.

But those opportunities may be few, as one of his predecessors discovered. When he was senior associate justice, Antonin Scalia told me (Marcia) in an interview: “All it does for me is I get introduced as the senior associate justice. I feel I ought to come in with a walker. No good otherwise.”

Thomas has had at least two opportunities to assign majority opinions. He was the senior associate justice in the majority in the 2015 challenge to Texas's refusal to allow a confederate flag symbol on specialty license plates. His conservative colleagues were in dissent. Thomas assigned the majority opinion in favor of Texas to Justice Stephen Breyer. And in Dolan v. United States, he turned again to Breyer in 2010 when his more senior colleagues were in dissent.

When the stars—or more relevant, the votes—align, the assigning power can be an important and strategic tool. In a 2011 law review article, Christopher Smith of Michigan State University and Charles Jacobs of St. Norbert College examined the influence of Justice John Paul Stevens's opinion assignments when he was the senior associate justice.

“Because of circumstances that led him to be the longest-serving associate justice for the final sixteen terms of his career at a historical moment when he regularly disagreed with the chief justices with whom he served, Justice Stevens played an especially important role as an assigner of majority opinion responsibilities,” Jacobs and Smith wrote. “There is evidence that Justice Stevens made strategic choices about opinion assignments in some cases to gain or retain the necessary votes to keep his majority intact. He also frequently self-assigned opinions to shape the law directly with his own words and reasoning.”

More from their article: “Many of the majority opinions assigned by Justice Stevens decided issues in cases that are widely acknowledged to be of great importance for the major controversies of his era, including the rights of gays and lesbians, federal power, and access to the courts for detainees suspected of participating in terrorist plots against the United States.”

Stevens, according to Jacobs and Smith, assigned 182 majority opinions during his career, with the largest number—22—in 2004 when Chief Justice William Rehnquist was fighting cancer.

In the term just ended, Justice Ruth Bader Ginsburg stepped into the assigning role when her liberal colleagues joined by Justice Neil Gorsuch struck down as unconstitutionally vague the definition of “violent felony” in federal immigration law. She assigned the majority opinion to Justice Elena Kagan.

In case you missed it…

>> Brett Kavanaugh's very first D.C. Circuit opinion confronted agency power. The agency lost.

>> Thirty-four former Kavanaugh clerks tell the Senate their judge wasn't one to “search for easy answers.”

>> Kavanaugh's ruled on many hot-button areas, including the environment, firearms and consumer protection.

>> What's the early buzz on what Big Law lawyers and law profs are saying about Kavanaugh?

>> Here's a transcript of Brett Kavanaugh's full remarks from his nomination ceremony.