Brett Kavanaugh arrives at the Supreme Court this morning for his first argument day, and everyone will be watching to see if the court's newest member will join his new colleagues in their quick-fire questioning. We take a look at the arguments, which confront the Armed Career Criminal Act. Although the justices may be hoping for a quiet term after Kavanaugh's bitter confirmation, one of the most politically tinged issues is back at the court—partisan gerrymandering. Kirkland & Ellis partner Paul Clement is hoping the justices will jump again into the thorny issue in his North Carolina case. We do a run-through of his arguments.

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Kavanaugh's First Oral Arguments

If Justice Brett Kavanaugh were looking for a set of low-profile cases for his first arguments on the bench following his contentious confirmation hearings, he could not have found a better trio (two consolidated for argument) than this morning's cases.

Regardless of the nature of the cases, all eyes will be on the newest justice to see what he says or does during those two hours. Will he leap into the fray—as Justice Neil Gorsuch did on his first day—by peppering advocates with questions? Kavanaugh was often very active on the D.C. Circuit. Or, will he be more circumspect, as Justice Elena Kagan was eight years ago?

Kavanaugh will face in his very first argument a staple of the Supreme Court docket—the Armed Career Criminal Act, also known as ACCA, which was enacted in 1984 and has bedeviled courts and criminal defendants ever since. The law imposes a 15-year mandatory minimum prison term on federal firearm offenders who have three prior serious drug or violent felony convictions. Those convictions can be under either state or federal laws.

The “use, attempted use, or threatened use of physical force” is an element of a “violent felony” under ACCA. The Supreme Court has defined physical force under ACCA to mean violent force. Does unarmed robbery under Florida law, which requires slight force to overcome victim resistance, involve the kind of force required by ACCA?

>> In Stokeling v. United States, Assistant Federal Public Defender Brenda Bryn of Fort Lauderdale argues that applying ACCA to her Florida's robbery law would “rebrand Oliver Twist a 'violent felony.'” Florida robbery, she contends, lacks “violent force” as an element because it can be committed by using only a slight degree of force.

Assistant to the Solicitor General Frederick Liu will make the government's argument that under Florida's robbery statute,“there must be resistance by the victim that is overcome by the physical force of the offender.” That kind of force, he writes, meets the ACCA requirement which the justices have interpreted to mean “force capable of causing physical pain or injury.”

>> The roles are reversed in United States v. Stitt II, and United States v. Sims.Assistant to the Solicitor General Erica Ross faces off with O'Melveny & Myers's Jeffrey Fisher, also with Stanford Law School, in arguments over a more straightforward question, if there is such a question under ACCA: does burglary of a non-permanent or mobile structure that can be used for overnight accommodations qualify as “burglary” under the ACCA? (Quick aside here—one of Kavanaugh's new clerks, Shannon Grammel, worked with Fisher at Stanford's appellate clinic.)

Ross argues that the U.S. Courts of Appeals for the Sixth and Eighth Circuits were wrong in making a distinction between permanent and mobile structure. “The inherent danger of a home invasion exists to an equal, if not greater, degree when a burglar invades a mobile home as when he invades a mansion,” she contends.

Fisher counters that Arkansas's burglary statute is so overbroad that his client's convictions cannot be burglaries under ACCA. And as a further challenge, Fisher argues that the ACCA sentencing enhancement scheme violates the Sixth Amendment.

He's looking for support from Justice Clarence Thomas, who “has taken the Sixth Amendment concerns that the ACCA presents a step farther and suggested that, 'in an appropriate case,' this court should hold that the act is unconstitutional whenever, as here, it exposes a defendant to a higher sentence based on the fact of his prior convictions.”

He's looking for support from Justice Clarence Thomas, who “has taken the Sixth Amendment concerns that the ACCA presents a step farther and suggested that, 'in an appropriate case,' this court should hold that the act is unconstitutional whenever, as here, it exposes a defendant to a higher sentence based on the fact of his prior convictions.”

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The Return of a Partisan Challenge

At a time when the justices may be hoping to avoid partisan-tinged cases following the politically intense confirmation process for Justice Brett Kavanaugh, one of the most partisan-infected questions today has returned to the Supreme Court.

The justices disappointed election reform advocates last term when they ducked the controversial issue of the constitutionality of partisan gerrymandering in a Wisconsin challenge. In a jurisdictional statement filed last week by Kirkland & Ellis partner Paul Clement, they are being asked to take another look, this time in a case involving North Carolina's congressional redistricting plan.

Last term, former Jenner & Block partner Paul Smith, now with the Campaign Legal Center, warned the court in his argument challenging the Wisconsin redistricting plan, that these gerrymander cases were coming to the court regardless of how it ruled in his case. But whether the justices are ready to step back into an issue that has defied resolution for decades is itself a difficult question to answer.

Clement's North Carolina case—Rucho v. Common Cause—was on the court's docket last term. The high court sent the case back to the three-judge district court, which had ruled for challengers to the plan, to reconsider in light of the Wisconsin ruling in Gill v. Whitford. The district court again invalidated the North Carolina plan, but last month it stayed its ruling pending Supreme Court review.

Clement argues the district court could not find a judicially manageable test for when partisanship is too much in redistricting and simply declared that partisan gerrymandering is “categorically” inconsistent with the Constitution. “A test that is manageable only at the expense of deeming every legislative districting exercise in recent history a probable constitutional violation is no test at all,” Clement wrote.

No response has been filed yet by Common Cause or the League of Women Voters, plaintiffs in the gerrymander challenge. Smith represented the League in the high court last term. Emmet Bondurant of Atlanta's Bondurant Mixson & Elmore was counsel to Common Cause.

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In Case You Missed It: A Scalia Statue… and Who's Up for the D.C. Circuit?

>> Kavanaugh's Supreme Court clerk hires in perspective. And more here on his four female clerk hires, a record for a justice in any single term.

>> D.C. Circuit vacancy buzz ramps up after Kavanaugh's elevation.

>> In remarks at the White House on Monday, Kavanaugh said he'll take the benchwith “no bitterness” about his confirmation proceedings.

>> One of Kavanaugh's first orders could come in a dispute over whether two high-ranking officials—Commerce Secretary Wilbur Ross and John Gore, the acting head of DOJ's civil rights division—can be deposed in a challenge to placement of a citizenship question on the next census.

>> A bronze statue of Antonin Scalia was recently unveiled at the George Mason University Antonin Scalia Law School.