Welcome to Supreme Court Brief. In advance of all-Kavanaugh all-the-time news coverage next week, we change the subject and look ahead to preview the unusual twists of an important class action case set for argument in October. Plus some polling data about the Supreme Court that may be surprising. Thanks for reading. Feedback is welcomed at [email protected] and [email protected].

 

Ted Frank's First SCOTUS Oral Argument

Theodore Frank has been firing shots at so-called “cy pres” settlements—an especially controversial component of some class actions—for more than a decade. On October 31, he will take his crusade all the way to the U.S. Supreme Court, lock, stock and barrel.

That is because Frank, director of the Center for Class Action Fairness at the Competitive Enterprise Institute, isn't just the named petitioner in the case Frank v. Gaos. He will also argue for his first time before the high court, on his own behalf.

It's an exceedingly rare happening at the Supreme Court, where detached, dispassionate advocacy is prized. Frank's decision inevitably evokes the hoary, male-predominant axiom that “he who represents himself has a fool for a client.”

“I'm well aware of the famous aphorism,” Frank said in an interview Monday as he awaited the next round of briefing in the case, which could produce one of the most important class action rulings in years. “And I made sure I wasn't suffering from Dunning-Kruger syndrome.” That's the phenomenon whereby low-ability people think they have much greater ability than they really do.

But as he thought about the case, he decided, “I should hire the person who has won the most cy pres cases in the appellate courts. That's me.”

Andrew Grossman of Baker & Hostetler, who was counsel of record for Frank, stepped aside. Frank said he has argued two dozen cases in lower courts, adding that he “created the circuit split” that may have led the Supreme Court to grant cert in the case. His brief cites the cases.

In this case, Frank objected to a class action against Google involving the privacy of users' search queries. It settled for $8.5 million, but because of the huge number of Google users and more than $3 million in attorney fees, it was impractical to distribute the minimal awards. That's where the cy pres settlement came in, distributing the remaining $5 million or so to institutions that work toward protection of privacy on the Internet.

“Cy pres” is a shortened Old French expression that means, roughly, “as near as possible,” signifying a settlement that approximates what the class action was about, even though class members don't receive anything directly.

First question for Frank: How will he pronounce “cy pres” during oral argument? Some dictionaries embrace the French-sounding “see pray,” but legal writing expert Bryan Garner prefers “sigh pray,” and that's what Frank will go with.

Frank said he is planning a “holistic approach” to the case, aiming to sweep away several systemic class action problems in the context of cy pres. But will that work before the Roberts Court, which sometimes seeks narrow ground and walks baby steps? Not to worry, says Frank. If the oral argument is tending that way, “A good advocate is flexible and listens to what the justices are saying,” Frank said. A narrow decision “just gives me more opportunities to be back in front of the Supreme Court.”

Another concern that arises when lawyers represent themselves: can they look beyond their own cases, their own victories, to see the other side? “I'm intellectually invested in this,” he said, “and I've grappled with the other side.”

Frank's bottom line: “If I lose this case, it's 10 years of work down the drain.”

Historical footnote: Best we can tell, the last time an oral advocate was a named party was in 2002, in the case Christopher v. Harbury. Jennifer Harbury, a Harvard Law School-trained human rights attorney in Texas, represented herself in her lawsuit claiming that that U.S. government officials deceived her about the CIA's role in the torture and death of her husband Efrain Bamaca-Velasquez, a Guatemalan rebel leader, 10 years earlier.

She won in lower courts, but the government appealed to the Supreme Court, and she decided to argue her own case. My recollection (Tony here) was that she was able to strike a balance between telling her personal story and making her legal case. Nonetheless, the government prevailed, 9-0.

#AlwaysAScotusAngle: If Harbury's name rings a bell, that may be because a few months ago, she provided ProPublica with the heart-wrenching recording—given to her by someone who did not want to be identified—of Central American children crying because they had been separated from their parents by U.S. immigration officials.While it's hard to imagine a world where certain disputes are resolved without human interaction, technology will evolve to that point.

 

Brett, Who? Check Out Latest C-SPAN Survey.

A week before the Brett Kavanaugh hearing begins next week, C-SPAN on Tuesdayreleased the results of a survey seeking public opinion about the U.S. Supreme Court.

You may have heard already the marquee results of the poll: 69 percent of voters are following the Kavanaugh nomination closely; 56 percent say the court splits on political grounds like Congress; 64 percent want oral argument televised; and if the court says no to television (which it always does) then 71 percent would go for same-day release of audio (which the court rarely allows.)

We dug a little deeper on the survey and found these other nuggets of interest:

➤➤ SCOTUS Bingeing: 29 percent of voters say that follow Supreme Court news “very closely,” a significantly higher number than three previous polls in 2017, 2015 and 2012.

➤➤ RBG Rocks: More people said they could not identify a single Supreme Court justice than those who said they could, by a 52-48 percent margin. Among those who said they could, 25 percent named Ruth Bader Ginsburg, with Chief Justice John Roberts Jr. and Clarence Thomas trailing at 14 percent.

➤➤ Brett Who?: 60 percent of voters, when asked an open-ended question to name the newest nominee, said they could not. But there's this: 70 percent could not name Neil Gorsuch last year, and 81 percent could not identify Elena Kagan in 2010.

➤➤ Roe Reigns: Asked to name a Supreme Court decision, only 47 percent said they could, and 36 percent named Roe v. Wade. Next best-known was Brown v. Board of Education at five percent. Relatedly, 35 percent think the high court will soon overturn Roe, and 44 percent say that's not happening. As for whether Roe should be overturned, 28 percent said yes, and 52 percent said no.

➤➤ Stay or Go? Among those who have an opinion on the matter, 47 percent agree with life tenure for justices, roughly the same percentage as in years past. In separate questions, 74 percent favored some kind of restriction on tenure, and 74 percent like the idea of 18-year terms.

 

In Case You Missed It

>> Arnold & Porter's Lisa Blatt, who extolled Brett Kavanaugh in a recent op-ed, was picked to introduce him next week at the start of his confirmation hearing. [SCB]

>> There's an early potential blockbuster developing for this term, a dispute over a “peace cross” in Maryland that could reshape church-state doctrine. [SCB]

>> The Supreme Court may soon be back in the thick of partisan gerrymander battles following a three-judge district court decision striking down North Carolina's 2016 congressional redistricting plan. [SCB]

>> Just because a Supreme Court seat is vacant doesn't mean the Senate must fill it now, particularly given the unsettled political moment in Washington. [Boston Globe]

>> Erwin Chemerinsky argues in this op-ed how to make the Senate confirmation hearings for Judge Brett Kavanaugh matter. [NLJ]

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