This morning we expect the first opinions of the new term! Don't get too excited because these early opinions usually are cases that washed out for some reason—but you never know. The Justice Department late Monday took the extraordinary step of seeking cert before judgment in pending DACA litigation. Plus: We've got a snapshot of the (many) recusals from Monday'sorders list. Scroll down for highlights from Monday's argument about uranium mining—concerns about the future of the nuclear power industry formed the backdrop to this major federal preemption case. Thanks as always for reading Supreme Court Brief. Contact us at [email protected] and [email protected].

DACA Dash by the SG's Office

Although U.S. Solicitor General Noel Francisco didn't say it explicitly in his letter to the clerk of the Supreme Court, there was a strong sense of “patience has run out” in his extraordinary election-eve filing of three petitions confronting court rulings in the Ninth, D.C. and Second circuits that have kept in place the Deferred Action for Childhood Arrivals, or DACA, program. The government is seeking review before any appeals court has ruled on the legality of the program.

Francisco unsuccessfully sought high court review before judgment in January after a nationwide injunction was issued in Dept. of Homeland Security v. Regents of the University of California. The justices denied that petition“without prejudice,” stating that it assumed the Ninth Circuit would act expeditiously on the government's appeal.

“That has not happened,” Francisco wrote in the letter to the court. “Although the Ninth Circuit heard oral argument on May 15, it has yet to issue its decision. And while similar decisions granting nationwide relief barring the rescission are also on appeal in the Second and District of Columbia Circuits, neither court is scheduled to even hear argument in those cases before January 2019.”

Francisco had warned the Ninth Circuit that if a decision was not issued by Oct. 31, the government would seek cert before judgment.

In his letter, Francisco said the government would oppose any requests by the opposition for extensions of time for the filing their briefs. If the court's regular schedule for briefing is followed, he said, the justices will be able to consider the petitions at their Jan. 4, 2019, conference, leaving time for argument and decision this term.

In the three petitions, the government asks the high court to decide two questions: whether the Homeland Security department's decision to wind down the DACA program is justiciable, and whether the decision to wind down the program is lawful.

Gibson, Dunn & Crutcher partner Theodore Boutrous, counsel to a group of DACA recipients in the Ninth Circuit case, said: “We believe that the government should not try to short-circuit the usual procedures, and particularly not for a matter as important as this one. The Ninth Circuit and the other courts considering this matter are addressing it thoughtfully, and their deliberations should be completed. Then, with the benefit of the decisions of three courts of appeal, the Supreme Court will have more information with which to consider whether it is appropriate to weigh in on this issue.”

Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights, called the government's filings “a clear election eve stunt” to avoid the courts holding it accountable. She added: “This administration is in a rush to pull the rug out from under Dreamers and subject them to deportation. This extraordinary move is blatantly cruel to immigrant youth who call this country their home and contribute to their communities. The Supreme Court must reject this politically motivated and unnecessary request.”

The DACA program was started by the Obama administration in 2012. The Trump Administration, acting on U.S. Attorney General Jeff Sessions's opinion that the program was unlawful, rescinded the program in September 2017 but it has remained in effect because of nationwide injunctions. The three petitions are U.S. Dept. of Homeland Security v. Regents of University of California (Ninth Circuit); Trump v. NAACP (D.C. Circuit), and Nielsen v. Vidal (Second Circuit).

Past is Prelude When Justices Face Recusals

Five justices recused themselves a total of eight times in cases acted on by the court on Monday, underscoring their prior involvement in cases before them, as well as occasional financial conflicts of interest.

With all nine justices having handled federal cases before they became justices—eight as appeals judges and one as solicitor general—the clerk of the court is proposing a rule change that would require petitioners to list all prior proceedings in lower courts that relate to the case they are asking the court to review.

That information, clerk Scott Harris said, “will assist in evaluating whether a Justice's involvement in a case before joining the Court might require recusal.”

Here's a rundown of Monday's recusals:

➤➤ Chief Justice John Roberts Jr. and Justice Brett Kavanaugh took no part in the court's denial of cert in the multiple petitions challenging the Federal Communications Commission's 2015 net neutrality rules, which have since been repealed. Roberts's most recent financial disclosure form indicates that he owns up to $500,000 in Time Warner stock. AT&T, one of the parties in the cases, merged with Time Warner as of June. As for Kavanaugh, he was on the U.S. Court of Appeals for the D.C. Circuit when the net neutrality cases were ruled on.

➤➤ Kavanaugh also recused in the denial of cert in Smith v. Hillary Clinton, a case brought by the parents of two people who died in the Benghazi attacks in 2012. The D.C. Circuit ruled on the case below.

➤➤ Justice Neil Gorsuch recused in two cases—Gehrmann v. United States and Garcia-Martinez v. United States—that were decided by the U.S. Court of Appeals for the Tenth Circuit, where Gorsuch was a judge.

➤➤ Justice Samuel Alito Jr. recused in Del Rosario v. Wells Fargo Bank. Alito owns up to $50,000 in PNC Bank stock, according to his latest financial disclosure form; PNC Mortgage Inc. is one of the appellees in the case. He also recused in Jones v. Johnson, a pro se case from New Jersey that originated in an alleged rape in 1980. Alito may have recused because the case went to federal court while he served as U.S. attorney in New Jersey from 1987 to 1990.

➤➤ Justice Elena Kagan recused in Baxter v. United States, a pro se case. Baxter's petition is not available, but Kagan has recused from time to time in cases in which the United States was a party while she was U.S. solicitor general from 2009 to 2010.

Drilling Down to Divine Legislative Intent

U.S. Solicitor General Noel Francisco argued Monday that a ruling for Virginia in a big “not in my backyard” case involving a ban on uranium mining would provide “a road map for completely undermining a multibillion-dollar industry.”

The future of the nuclear energy industry was very much on the minds of Francisco, the U.S. Chamber of Commerce, former nuclear energy regulators and a trio of U.S. senators (represented by Sidley Austin's Gordon Todd) during arguments in the case Virginia Uranium Inc. v. Warren.

Virginia Uranium can't mine a deposit of about 119 million pounds of uranium ore—the largest in the United States—beneath an estate in Pittsylvania County, Virginia, because the state has banned uranium mining since the late 1970s. After losing a challenge to the ban in the Fourth Circuit, the company turned to the Supreme Court, arguing that the federal Atomic Energy Act preempts Virginia's mining moratorium.

That law allows states to regulate the mining or extraction of uranium ore. But once the ore is out of the ground, the law gives the Nuclear Regulatory Commission exclusive power to regulate the safety of the refining and the management of the radioactive waste.

Virginia Uranium, represented by Cooper & Kirk partner Charles Cooper—with an argument assist from friend-of-the-court Francisco—told the justices that the state's real purpose in enacting the ban was post-extraction radiological safety concerns—which would preempted by federal law.

Arguing for Virginia, State Solicitor General Toby Heytens countered that state lawmakers were motivated by mining safety concerns and the environmental and economic impacts of a “massive earth-moving” mine operation in an area known for agriculture and tourism.

Here are two key moments from the arguments:

>> Francisco, the U.S. Chamber (represented by Kirkland & Ellis partner Erin Murphy) and the Nuclear Energy Institute (represented by Paul Hastings partner Peter Meier) said a state victory would threaten the industry and national security.

Not so fast, countered Justice Elena Kagan.

“This [federal] statute does give the federal government the ability to make sure that states can't really undermine [the nuclear industry] if the federal government really wants a nuclear industry badly enough.” Why? The material can be imported from another state or country, she said, and the federal government can mine for it on its own lands or can condemn lands for its use.

>> How best to divine the legislature's purpose?

“Is this going to require deposing every single legislative member?” asked Justice Sonia Sotomayor. And Justice Neil Gorsuch said: “If we're going to start inquiring into purpose, one state may not be able to do the same thing another state may be able to do simply because of our assessment of what was in somebody's mind. If I'm going to start going down the road of what's in somebody's head and subjective intentions of even an imaginary, hypothetical, reasonable legislator, I don't know.”

Cooper and Francisco said the court should look for purpose in the state law's text, legislative history, context of enactment and plausibility of the stated rationale. Heytens countered: “Because Congress doesn't regulate mining, the state legislature does not have to show its purpose. The face of this statute regulates mining. The face of this statute cites environmental and natural resources consequences that flow from mining.”

Supreme Court News Roundup

>> “The U.S. Supreme Court for a second straight year refused on Monday to hear a challenge to California's limits on carrying handguns in public, dealing another setback to gun rights proponents.” [Reuters]

>> “The Supreme Court on Monday rejected telecom industry requests to erase a lower-court ruling that upheld Obama-era net neutrality rules, though since the rules were already defunct the ruling has no immediate real-world impact.” [The Wall Street Journal]

>> The U.S. Justice Department is backing Sudan in a dispute involving USS Cole bombing victims. “Litigation against foreign states in U.S. courts can have significant foreign affairs implications for the United States and can affect the reciprocal treatment of the United States in the courts of other nations,” the U.S. said in its brief. [The Washington Post]