The U.S. Supreme Court is now firmly launched into its low-key, November argument session. With an important cy pres case ready for arguments Wednesday, we take you behind the switch of that day's argument lineup. Plus: Justice Sonia Sotomayor on Monday criticized an Alabama trial judge in a capital case with a missing trial audio recording, and we've got a link below to this year's NLJ Appellate Hot List, in case you missed it. Thanks for reading Supreme Court Brief. Contact us at [email protected] and [email protected].

The Story Behind This Week's Argument Shuffle

The court last week announced that the order of the two cases set for argument on Wednesday will be switched. Frank v. Gaos, the interesting cy pres case, will be argued first, and Jam v. International Finance Corporation will go second, rather than the other way around, as was originally scheduled.

There was some wonderment on social media about the reasons for the change. No explanation from the court was forthcoming, but we can assure you it's not a Halloween prank. Switches like this take place when a justice is recused in the first case scheduled on a given day. And that would have happened if the Jam case were to go first this Wednesday.

Jam, which tests whether international organizations enjoy the same level of immunity from lawsuits as foreign governments do, is one of three cases on the docket in which new Justice Brett Kavanaugh will be recused, so far. The lower court decision in Jam came from the U.S. Court of Appeals for the D.C. Circuit, and then-judge Kavanaugh was on 2017 order denying en banc review in the case. Judges are supposed to recuse in cases in which they participated at an earlier stage.

>> So why don't cases that involve a recusal get argued first?

Retired Supreme Court clerk William Suter says it's a longstanding but informal “clerk's rule” aimed at accommodating the recusing justice.

To understand this, there are two background facts to know: it is impossible to predict when an argument will end—sometimes they run short—and when it does end, the court likes to start the next argument swiftly.

Because of these facts, to take Wednesday's example, if the Jam case went first, Kavanaugh couldn't just hang out in his chambers waiting for someone to tell him that the argument is over. Because the court wants to start the second case quickly, Suter said, Kavanaugh would have had to “wait and wait behind the curtains,” ready to take the bench as soon as the first argument ends.

Switching the order of the arguments takes care of the problem. All nine justices will sit for the Frank v. Gaos case. When it ends, Kavanaugh can unobtrusively slip away through the curtains, and the Jam case can begin without him, no matter how long it lasts.

What's in a Word? Life or Death, Sotomayor Says

Although Justice Sonia Sotomayor agreed with the denial of review in the capital case, Townes v. Alabama, on Monday, she had some harsh words for the trial judge—Alabama Circuit Court Judge Larry Anderson.

The Alabama Court of Criminal Appeals had reversed Tawuan Townes's death sentence after finding that Anderson's jury instructions—as reported in the trial's certified record—said the jury “must find” specific intent to kill “if the act was done deliberately and death was reasonably to be apprehended or expected as a natural and probable consequence of the act.'”

That kind of presumption, according to the Supreme Court, violates the due process clause.

But after Townes's conviction was reversed, the trial judge filed a “supplemental record” claiming he said “may” not “must” and the audio recording of the instructions confirmed that. The state appellate court ordered a new transcription by a new court reporter who subsequently submitted a new transcript that reported the word “may” instead of “must.” The appellate court withdrew its reversal and affirmed Townes's conviction and death sentence.

On Monday, Sotomayor said the Supreme Court had called for the trial record and a copy of the audio recording. The court was told, she said, the recording no longer existed.

“In a matter of life and death, hinging on a single disputed word, all should take great care to protect the reviewing courts' opportunity to learn what was said to the jury before Townes was convicted of capital murder and sentenced to death,” Sotomayor wrote. “Yet the trial court, after its unilateral intervention in Townes' appeal resulted in dueling transcripts, failed to preserve the recording at issue—despite the fact that Townes' case was still pending direct review, and, consequently, his conviction was not yet final.”

The trial judge's actions, she added, erode confidence that fundamental rights have been respected. “That gives me—and should give us all—great pause,” she wrote.

In Case You Missed It: 'Low Point' in Civic Dialogue, Kennedy Says | NLJ Appellate Hot List 

>> Americans have reached “a low point in our civic dialogue,” retired Justice Anthony Kennedy said Friday at Stanford Law School. Kennedy said at another point: “I think in a very short time the court will show that it's functioning. All the justices have a very great respect for each other.”

>> “Not long before Jamal Khashoggi was killed inside the Saudi Consulate in Istanbul, Saudi Arabia filed a brief in the Supreme Court. It asked the justices to protect the sanctity of Saudi embassies, consulates and other foreign missions,” the New York Times reports. Read the brief here, filed by Squire Patton Boggs. Pierre Bergeron, chair of the firm's Supreme Court and appellate practice, is counsel of record.

>> Two arguments aired Monday suggested the court's pro-arbitration momentum still faces some obstacles, in the form of liberal justices who may be skeptical of arbitration's omnipresence. The more conservative justices, including newly confirmed Brett Kavanaugh, asked far fewer questions.

>> Check out the 22 law firms honored in this year's NLJ Appellate Hot List. “Common sense beats a footnote every time,” writes Kirkland & Ellis partner Paul Clement, when detailing the practice advice he'd give his younger self. “Focus on what's right and true, not what's clever and shrewd,” Donald Verrilli Jr. of Munger, Tolles & Olson says.

>> “A shift to to the right is a near certainty for the U.S. Supreme Court. How quickly it will happen is up to Chief Justice John Roberts,” according to a Bloomberg report. Allison Orr Larsen, a constitutional law scholar, said: “His record shows a consistently conservative view of the law.” Still, Roberts “seems to care very much about the court as an institution, and he is particularly aware of the fragility of the court when all eyes are watching and people view the justices as just politicians in robes.”

>> Justice Ruth Bader Ginsburg officiated the wedding ceremony of her grandson, Paul Spera, at the high court on Oct. 27.