Welcome to Supreme Court Brief. The Kavanaugh saga has taken over the usual preparations for the new Supreme Court term that begins Oct. 1. We offer a vignette of court advocates clearly pondering what will happen next. On a much-needed lighter note, we report on a Supreme Court trivia contest that stumped some top-tier lawyers. And then, a look at the life and hard times of the “reasonable expectation of privacy” standard in Fourth Amendment annals. Thanks for reading, and we welcome feedback at [email protected] and [email protected].

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Kavanaugh Controversy Takes Its Toll Among Supreme Court Bar

No matter what happens to Supreme Court nominee Brett Kavanaugh at the hastily reopened Senate Judiciary Committee hearing next Monday, the stunning turn of events has already cast a pall on the Supreme Court bar.

How do we know? Consternation and uncertainty were on display Monday at the annual preview of the court's upcoming term at Georgetown University Law Center's Supreme Court Institute.

The panelists were among the most seasoned court advocates: Irv Gornstein, executive director of the institute; Paul Clement of Kirkland & Ellis; Marty Lederman, Georgetown Law; Nicole Saharsky of Gibson, Dunn & Crutcher; Kannon Shanmugam of Williams & Connolly, and; Donald Verrilli Jr. of Munger, Tolles & Olson.

Anticipating the elephant in the room, Gornstein began by saying that for purposes of the discussion, it should be assumed that “the current nominee” will be confirmed and “questions that may have arisen by virtue of things that occurred over the weekend” would be avoided.

Fair enough, but from then on, Kavanaugh's name was almost never mentioned during the two-hour discussion, and panelists talked about the ramifications of a prolonged eight-member court, as if they've been thinking hard and recently about the possibility. In short, everyone had Kavanaugh on their mind, but no one was sure what to say or think about it all.

Some takeaways from the discussion:

➤➤ The reopened Kavanaugh hearing is on Sept. 24, the same day as the court's long conference, when it reviews hundreds of petitions that piled up over the summer. Even without the Monday hearing, it was unlikely that Kavanaugh could have been confirmed and sworn in time to participate. But with the timeline uncertain, some of the petitions that might have been granted at the long conference or the next one may be held over.

➤➤ An eight-member Supreme Court is always tough on cert petitions, which need four votes for a grant, Clement said. “We all do the math. Four out of eight is harder than four out of nine. It will slow down the pace of grants. Maybe some people think that's a good thing, but Supreme Court practitioners don't.”

➤➤ That kind of delay, said Saharsky, comes at a bad time. “There is real pressure this time of year at the court to fill out its calendar” for January and beyond, she said. “They have to grant certs now so there won't be an extremely accelerated briefing schedule.”

➤➤ Shanmugam said a prolonged vacancy “may affect which cases the court grants, not how many.” As it did after the death of Justice Antonin Scalia, the court may be on the lookout for cases that can be decided “by a clear margin,” he said, rather than knotty cases that could end in unproductive ties.

➤➤ But guess what: some of the knottiest cases of the term are on the Sept. 24conference list, including: an Establishment Clause test of a cross on public land in Maryland; a lead paint liability case from California; and a Bill Cosby defamation case.

It's not just cert grants that feel the brunt of an eight-member court. Oral arguments can also be affected. Example: on Oct. 2, the second argument day of the term, the court hears a key case on non-delegation, Gundy v. United States, and the death penalty case Madison v. Alabama. The outcomes of both could change without a ninth justice on board.

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Testing Your Knowledge of High Court History

Do you know which president holds the record for the most failed Supreme Court nominations? How about which justice had the nickname “Old Bacon Face?” If you draw a blank on the answers, don't feel too bad.

Two teams of veteran Supreme Court practitioners wrestled with those and other Supreme Court-related questions during “Supreme Trivia: A Supreme Court History Competition.” The trivia competition was sponsored by the Heritage Foundation and the National Constitution Center on Sept. 13 and offered a light-hearted reminder that a new term will begin in less than two weeks.

The brave advocates who fielded nearly 100 questions were on three-member Team Jefferson and three-member Team Madison. Team Jefferson included Jenner & Block partner Ian Gershengorn, a former John Paul Stevens clerk and acting solicitor general; Arnold & Porter partner Lisa Blatt, a former assistant to the solicitor general, and Mayer Brown special counsel Charles Rothfeld, a former Harry Blackmun clerk.

On Team Madison were Vinson & Elkins partner John Elwood, a former Anthony Kennedy clerk; Heritage senior legal research fellow Paul Larkin, a former assistant to the solicitor general, and Jones Day partner Kevin Marshall, a former Clarence Thomas clerk.

Team Madison prevailed, 32-27.

A modest Elwood said, “During the process of preparing and during the game itself, I learned that we've had some very colorful characters on the court, both bad (the spiteful bigot James McReynolds) and good—too many to name.”

His opponent, Gershengorn, said: “As a member of Team Jefferson, I hold this 'truth to be self-evident': I should stick to oral argument, over trivia contests! Joking aside, I enjoyed it, and I am glad that Heritage and the National Constitution Center put it together and included me—what a fun lead-in to the upcoming term.”

Now as to those first two questions: The 10th president, John Tyler, holds the record for most failed Supreme Court nominations—eight were rejected or withdrawn in a year-and-a-half. And “Old Bacon Face?” Justice Samuel Chase.

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'Expectation of Privacy'? Thomas Asks: 'Where Does This Stuff Come From?'

Justice Clarence Thomas is no fan of the “reasonable expectation of privacy” test for Fourth Amendment searches which has its origin in Katz v. United States. Last term in Byrd v. United States, Thomas, in a concurring opinion joined by Justice Neil Gorsuch, wrote: “I have serious doubts about the 'reasonable expectation of privacy' test.”

During a recent appearance before the Federalist Society in Fort Worth, Texas, the justice spoke about how the court “reflexively continues down a road without slowing down and asking, 'What is the basis of this?' Think of all the things we reflexively go along with—all these standards of decency, expectation of privacy. Where does this stuff come from? If it has a legitimate basis, so be it.”

Thomas paused and said, “By the way, reasonable expectation of privacy comes from somebody having a quick idea before oral argument in the middle of the night. That's where it comes from and suddenly it's in our jurisprudence. I'm not saying I disagree with it—I do disagree with it—but it is not well thought out. It's just someone thought it up.”

Since we're on a bit of a history roll here, who did think it up? In a 2009 law review article, Peter Winn, at the time an assistant U.S. attorney in the Western District of Washington, provided the answer and context: Although Justice John Marshall Harlan II is given credit for the test in his Katz concurrence, the real author was a young lawyer Harvey Schneider.

Schneider was just a few years out of law school when he began working on the Katz case with prominent criminal defense attorney Burton Marks, who died in 1987. As Winn tells the story, Schneider realized that the Olmstead trespass standard was falling out of favor with the high court. In the days before the argument, he began to rethink their strategy and realized that expectations of privacy should be an objective test, one that could be formulated using the reasonable man standard from tort law.

“In an act of great courage, he decided to focus all of his energy during oral argument on articulating the new standard for the Court,” Winn wrote. “As we have seen, the test had not been articulated in the briefs, and presenting it at oral argument arguably constituted a breach of protocol. Only a young and inexperienced lawyer would ever have tried such a thing.

And perhaps only a fearless and daring older lawyer such as Burton Marks would have ever permitted his young associate Harvey Schneider to take such a risk.”

After years in private practice, Schneider was elected a Los Angeles County Superior Court judge and served until 2000. He currently serves as a mediator and arbitrator.

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In Case You Missed It

>> Lessons and advice from two lawyers—Emma Coleman Jordan and Susan Deller Ross—who guided Anita Hill in 1991.

>> Kavanaugh's former female law clerks are standing by their judge despite the claims of a sexual assault from his high school years.

>> Veteran trial litigator Beth Wilkinson is reportedly on Kavanaugh's team as he prepares for Monday's scheduled hearing.

>> Kirkland & Ellis partner Paul Clement talks with Marcia about the upcoming term in this week's Law.com Legal Speak podcast.

>> Merck, represented by Jones Day's Shay Dvoretzky, asks the justices to remedy the “unduly high hurdles imposed on pharma companies asserting federal pre-emption.