While uncertainty surrounds Supreme Court nominee Judge Brett Kavanaugh, the high court brings a breath of normalcy today, returning to business, like clockwork, on the first Monday of October. Well, sort of normal. Once again, the justices will be one member shy of a full bench. We take a look at how the first week shapes up—top advocates are returning to the court, and there are some big issues on the docket. And we speak with one veteran advocate who has assumed some new duties with the Alliance Defending Freedom. Thanks for reading, and we welcome feedback at [email protected] and [email protected].

 

 

Eight Justice Déjà Vu

As the U.S. Senate continues to weigh the fate of high court nominee Brett Kavanaugh, an eight-justice bench across the street begins a new term weighing the fate of an endangered frog.

Weyerhauser Company and other owners of property in Louisiana are challenging the property's designation as a “critical habitat” of the dusky gopher frog by the U.S. Fish & Wildlife Service. The frog is not currently living on the property.

The case is the first argument of a two-week argument cycle that features many of the top advocates of the Supreme Court bar. Six of the 22 lawyers arguing are women, with only one of the six from the office of the U.S. solicitor general.

The justices are no strangers to operating with a short-handed court. It was just two terms ago—October 2016—that they began with eight following the death that February of Justice Antonin Scalia. Justice Neil Gorsuch did not come on board until April 2017.

Justice Elena Kagan reminisced about the period in a recent conversation with the dean and law students at the UCLA law school:

“None of us wanted to look as if the court couldn't do its job. I think we all felt as though the country needed to feel that the court was a functioning institution no matter what was happening outside.”

Although the court worked hard to reach consensus that time, Kagan said, consensus-building in general, “especially perhaps in a time of acrimony and partisanship in the country at large, makes a lot of sense.”

➤➤ Here's a quick rundown of the lawyers who will be hoping the justices reach consensus in their favor during the new term's first week of arguments:

>> Mayer Brown partner Timothy Bishop is first to the lectern on behalf of Weyerhauser. Bishop, a top appellate environmental advocate, will make his 11th high court argument. Deputy Solicitor General Edwin Kneedler, who has argued more than 100 cases in the Supreme Court, represents the Fish & Wildlife Service.

>> Right after the frog challenge, two veterans face off in Mount Lemmon Fire District v. Guido, which questions whether the Age Discrimination in Employment Act covers all state political subdivisions of any size or only those with a minimum of 20 employees as with private employers. Representing the fire district, E. Joshua Rosenkranz, who heads the Supreme Court and appellate practice at Orrick, Herrington & Sutcliffe, takes on Stanford Law's Jeffrey Fisher, who recently signed on as special counsel to O'Melveny & Myers. Fisher has a second argument the following week in the consolidated cases, United States v. Sims and United States v. Stitt.

➤➤ The term's second and third argument days bring more familiar faces.

>> Principal Deputy Solicitor General Jeffrey Wall represents the United States on one of those issues that causes Supreme Court geeks to salivate. Gundy v. United States involves the nondelegation doctrine and the federal Sex Offender Registration and Notification Act. Herman Gundy's counsel is Federal Defender Sarah Baumgartelof New York, who is making her first high court argument.

>> Right after the Gundy arguments, Bryan Stevenson of the Equal Justice Initiative steps up in Madison v. Alabama. Stevenson argues his client has vascular dementia and neither remembers his crime nor understands that he is to be executed. Alabama Deputy Attorney General Thomas Govan Jr. argues that the Eighth Amendment permits the execution.

>> On Wednesday, the final day of the first week, U.S. Solicitor General Noel Francisco argues as amicus in an important takings case, Knick v. Township of Scott, Pa. He will be supporting J. David Breemer of Pacific Legal Foundation, counsel to Rose May Knick. The township's counsel is Teresa Ficken Sachs, vice-chair of the appellate advocacy group at Philadelphia's Marshall Dennehey Warner Coleman & Goggin, also a high court first-timer.

>>Rounding out the first week is New Prime Inc. v. Oliveira, concerning an the application of an exemption in the Federal Arbitration Act. Gibson Dunn & Crutcherpartner Theodore Boutrous represents New Prime. Also arguing for the first time is Jennifer Bennett of Public Justice in Oakland, California, counsel to Dominic Oliveira.

 

 

Veteran SCOTUS Advocate Joins ADF

Alliance Defending Freedom, a conservative Christian legal advocacy and training group, scored two significant victories in the Supreme Court last term and recently added another veteran high court practitioner to its appellate team.

John Bursch (above), a former Michigan solicitor general, has been named senior counsel and vice president of appellate advocacy for ADF. Bursch has argued 11 Supreme Court cases since 2011, but is probably best known for defending Michigan's ban on same-sex marriage in 2015 in Obergefell v. Hodges. In Obergefell, a 5-4 majority struck down state bans on same-sex marriage.

“I've long admired the folks I've gotten to know at ADF and I support their mission of trying to keep doors open for spread of the gospel,” Bursch said. “It gives me more time to work on religious liberty issues and opens up a lot more possibilities.”

ADF, has been successful in its own right, he said, but by adding him to their team, he hopes to amplify their experience in the Supreme Court. ADF general counsel Kristen Waggoner was the winning advocate last term in the First Amendment case Masterpiece Cakeshop v. Colorado Civil Rights Commission, and she was on the team that won National Institute of Family & Life Advocates v. Becerra. (ADF's general counsel, Michael Farris, argued the NIFLA case.)

In the new term, ADF and Bursch are hoping the justices will grant review in their petition asking whether Title VII's ban on sex discrimination includes gender identity and transgender status. In R.G. & G.R. Harris Funeral Homes v. EEOC, ADF is challenging a decision by the U.S. Court of Appeals for the Sixth Circuit requiring a funeral home to allow a male employee who identifies as a woman to wear female clothes.

Bursch said he intends to divide his time between ADF and his law firm, Bursch Law, in Caledonia, Michigan. He is awaiting the outcome of the justices' “long” conference on Sept. 24 to see if they agree to hear a petition that he helped the Louisiana attorney general's office write: Gee v. Planned Parenthood of Gulf Coast, a challenge involving the state's attempt to eliminate Medicaid funding of Planned Parenthood clinics.

ADF has found a welcoming ear in U.S. Attorney General Jeff Sessions. In July, the Justice department hosted a religious liberty summit organized by ADF, and Sessions announced a religious liberty task force to implement his religious liberty guidance and to ensure “that our employees know their duties to accommodate people of faith.”

 

 

In Case You Missed It

>> Anthony Kennedy, appearing in Sacramento last week, was mum when askedabout the Kavanaugh controversy. “No, we've decided carefully not to comment,” Kennedy said, when asked about Kavanaugh, one of his former clerks.

>> Former Kavanaugh colleague Helgi Walker, an appellate partner at Gibson Dunn, describes watching the Kavanaugh-Ford hearing: “Yes, people react strongly, and I think emotionally. And I cried, my husband cried because we know Judge Kavanaugh, and we know what he's been through. And we also know that he is innocent of these charges.”

>> “The U.S. Supreme Court has chosen an expensive battle between Oracle Corp. and third-party software support company Rimini Street Inc. to resolve a circuit split over cost-shifting in copyright cases,” our colleague Scott Graham reports. Check out Scott's preview of the intellectual property docket at SCOTUS this term.

>> On the eve of the Kavanaugh-Ford hearing, Justice Ruth Bader Ginsburg was speaking at Georgetown law, and she praised #MeToo. Kavanaugh's name did not come up.

>> Several reports, including at the NYT and Los Angeles Times, look at what Kavanaugh's bombastic tone and partisan rage might mean for the high court if he is confirmed.

Thanks for reading, and we welcome any tips, feedback and observations. Reach us at [email protected] and [email protected].