After a somewhat ho-hum two days of argument at the Supreme Court, a more tantalizing case will be argued this morning, on a certain type of class action settlement that has raised concerns with some members of the court. Plus: an assistant SG gets his second pro hac vice approval from the court, and we've got a roundup of some of the big SCOTUS headlines. See what James Ho has to say about birthright citizenship. Thanks for reading Supreme Court Brief. Comments welcomed at [email protected] and [email protected].

Big Day for 'Cy Pres': The Advocate Lineup

The Supreme Court hears arguments today at 10 a.m. in Frank v. Gaos, the high-profile case that could determine the fate of “cy pres” class settlements—”near as possible” funds that are distributed to third parties when awarding class members would be impractical or impossible.

A lot is at stake, not just whether the court strikes another blow against class actions. Example: The American Bar Association reminds the court that cy pres settlements feed money into legal services organizations at a rate of more than $15 million a year.

We've written about the case itself, the fact that named petitioner Ted Frank will be arguing on own behalf, the extensive amicus briefing, and why it will be argued first, not second, in the court's lineup today.

And we've also revealed how Frank intends to pronounce the Old French phrase “cy pres” during argument. He favors “sigh pray” over the more French-sounding “see pray.” We'll see how French-speaking Justice Stephen Breyer pronounces it at argument.

But Ted Frank who, by the way, was spotted at the court on Monday watching arguments, is not the only lawyer arguing this morning. The all-male line-up:

➤➤ Jeffrey Wall, principal deputy solicitor general, will have 10 minutes to argue for the government, which filed a brief in support of neither party. Because of that position, he's taking five minutes from both sides, leaving them with 25 minutes each. Wall was formerly with Sullivan & Cromwell and clerked for Justice Clarence Thomas.

➤➤ Ted Frank will have 25 minutes to make his case against cy pres settlements, more time than any other lawyer arguing. Frank is director of the Center for Class Action Fairness at the Competitive Enterprise Institute.

➤➤ Mayer Brown partner Andrew Pincus, who argued on Monday in an arbitration case, returns to the lectern, this time representing Google, which agreed to the settlement that Frank is challenging. He'll have 12 minutes to argue.

➤➤Jeffrey Lamken of MoloLamken is allotted 13 minutes to argue on behalf of the plaintiff class against Frank. He's a former law clerk to Justice Sandra Day O'Connor.

When Google and the plaintiff class, both respondents, asked the court for divided argument time, they stated that while they both want to defend the cy pres settlement, they had different points of view that the justices should hear.

“Google is almost always a defendant in class-action litigation; its position reflects defense perspectives,” the letter stated. “By contrast, the class brings a plaintiff's perspective.”

Interestingly, the September 5 letter seeking divided argument time stated that Mayer Brown partner Donald Falk would argue for Google, not Pincus. Falk did not respond to a question about why Pincus stepped in.

An eleventh hour twist in the briefing: Frank filed a supplemental brief on October 23 alerting the high court to In Re EasySaver Reward Litigation, a recent Ninth Circuit opinion that he said shows the “pernicious effects” of cy pres settlements.

Lamken shot back with a reply brief on October 29, two days before argument, asserting that EasySaver “has no bearing” on the case before the court, and is nothing more than “a late-arriving and less-than-fully explored anecdote.”

Pro Hac Vice, Again

On Dec. 3, Christopher Michel, an assistant to the solicitor general, will argue before the justices after the court—for a second time—granted a rare pro hac vice request by U.S. Solicitor General Noel Francisco. A former speechwriter for President George W. Bush, Michel graduated from Yale Law School in 2013 and will be just six days short of eligibility for admission to the Supreme Court's bar when he makes his argument.

Michel, who clerked for Chief Justice John Roberts Jr. and then-Judge Brett Kavanaugh, argued pro hac vice for the government as amicus curiae last term in Digital Realty Trust v. Somers. The government lost 9-0. His argument on Dec. 3 is in Lorenzo v. Securities and Exchange Commission.

Francisco noted in a footnote to his latest request that the justices have authorized pro hac vice argument by members of his office on a number of other occasions, including in 2002, 2004 and 2009.

The chief justice, however, may be particularly sympathetic to these requests, according to Sean Marotta, senior appellate associate at Hogan Lovells. On Twitter, Marotta tweeted: “The Chief, when he was at the SG's office, was called in last minute to argue a case after the Court denied an assistant's pro hac vice motion. He had the weekend to prepare. He won.”

SCOTUS Headlines: Birthright Citizenship, RBG Biography & More

>> “There was little question that any action by Mr. Trump to try to alter birthright citizenship would be met with immediate legal challenges,” the New York Times reports. Omar Jadwat, director of the American Civil Liberties Union's Immigrants' Rights Project, said in a statement: “The president cannot erase the Constitution with an executive order, and the 14th Amendment's citizenship guarantee is clear.”

More reading: The Washington Post looks at some of what now-Circuit Judge James Ho has said about birthright citizenship. “Birthright citizenship is guaranteed by the Fourteenth Amendment. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers,” Ho, a former Gibson, Dunn & Crutcher partner, wrote in a 2006 article at The Green Bag.

>> The Supreme Court will decide if the U.S. government can join the PTAB party, our colleague Scott Graham reports. The America Invents Act says any “person” can petition for review of patent validity. A patent owner backed by Covington & Burling says the government isn't a “person.”

>> The New York Times reviews Jane Sherron De Hart's “Ruth Bader Ginsburg: A Life.” Linda Greenhouse writes: “The question for any Ginsburg biography—and there will be others, including a long-anticipated authorized one by Wendy Williams and Mary Hartnett of Georgetown Law School, still some years down the road—is not only what happened, but why. Why Ruth Ginsburg?”

>> “Liberal lawyers are reassessing their Supreme Court strategies now that they face not only a solidly conservative majority but the addition of a justice who has openly expressed animosity toward them,” the Huffington Post reports.