The justices are not hearing arguments this week and next, but are undoubtedly prepping for their final argument session of 2018 that begins Nov. 26. Jones Day has hired a record-setting 11 SCOTUS clerks from the term past, and below we've spotlighted some of the tributes Harvard Law Review collected about retired Justice Anthony Kennedy. Justice Elena Kagan's concurrence in a partisan gerrymandering case helped carry the day in a Maryland challenge that soon may be heading back to the high court. Thanks for reading Supreme Court Brief. Feedback and other comments welcome: [email protected] and [email protected].

Former Kennedy Clerks, Colleagues Pay Tribute

It is customary for the Harvard Law Review to publish a Festschrift edition in tribute to departed Supreme Court justices, with comments from fellow justices and others. The celebration of retired justice Anthony Kennedy was posted November 9. Some excerpts:

>> Chief Justice John Roberts Jr.: “Some years ago, [Kennedy] created a very personal list of suggested readings on liberty for his grandchildren … Perhaps the most inscrutable entry on Justice Kennedy's list is Don McLean's hit song 'American Pie.' When asked what 'American Pie' means, the singer replied, 'It means I don't ever have to work again.' I'm fairly certain that is not the kind of freedom Justice Kennedy had in mind when he included the song on his list.”

>> Justice Neil Gorsuch, who clerked for Kennedy: “There is his humility and his profound love of country and our courts … When I became a judge on the Tenth Circuit, I asked Justice Kennedy to come to Colorado to swear me in. Of course he came. And of course I took the chance to seek his advice. His reply? Listen. Listen to your colleagues, to the parties, to scholars in the field … Appreciate always, he said, that to those involved in the case before you may be the most important thing in their lives.”

>> Third Circuit Judge Cheryl Ann Krause, who clerked for Kennedy: I had the experience in my clerkship year of submitting to the Justice drafts over which I long labored, thinking them sometimes quite good, although no doubt with room for improvement. What ensued was a process that I now recognize … was a true metamorphosis. Invariably, what emerged, while bearing some resemblance to that draft, was something transcendent, rooted in law and reason but beautiful, sometimes quite colorful, and capable of soaring into the future.”

 >> Ninth Circuit Judge Diarmuid O'Scannlain: “Justice Kennedy's commitment to defending the rule of law in speaking engagements both here and abroad is probably his dominant image for me. I was with him on one of the many summer seminars that he taught in Salzburg, Austria … where I witnessed his mesmerizing lectures, entirely without notes, extolling various features of the rule of law … He is very proud of a bookmark that he designed defining the Rule of Law, which later was adopted by the U.N. Committee on the Empowerment of the Poor and, as he reminded me, has been translated into about eight or nine languages.”

>> Jack Goldsmith, Harvard Law School professor and former Kennedy clerk: “It is little exaggeration to say that, in important cases, as Justice Kennedy went, so went the Court. Justice Kennedy was not the man in the middle because of a proclivity to moderation or compromise. He had no compunction about maximalist judicial decisions. He found himself in the middle because his jurisprudential commitments led him to vote in ways that did not cluster neatly in one area on a conventional ideological spectrum.”

>> Leah Litman, a University of California, Irvine School of Law professor and former Kennedy clerk: “Lunch in the Kennedy chambers involved a certain ritual—the justice would be tempted to order takeout with his law clerks (he'd be particularly interested if it was ribs or Chinese food), instead of sticking with the boiled chicken and vegetables, or the salad and cottage cheese, as he had promised Mrs. Kennedy he would. The justice would struggle between the two options for a little while before ultimately sticking with his promise to Mrs. Kennedy. That pre-lunch hour ritual was one of the rare occasions the justice lived up to his nickname as the 'swing' justice.”

“The culture is becoming vulgar.”

—Retired Justice Anthony Kennedy said recently at the Churchill Conference. 

Kagan 'Road Map' Drives Gerrymander Victory

Toppling what his clients charged was a partisan gerrymandered congressional district in Maryland has been “my fight for four years,” said Mayer Brownpartner Michael Kimberly. Last week a three-judge district court agreed with him and his clients and struck down the Sixth congressional district. The court said the Democratic-led state assembly's map violated the challengers' First Amendment rights of political representation and association.

The state is likely to appeal, although no decision has been made yet. If it does appeal, the justices would have two partisan gerrymander appeals awaiting their consideration. Kirkland & Ellis partner Paul Clement represents North Carolina in Rucho v. Common Cause.

Kimberly's case was at the high court last term, but the justices did not reach the merits and it went back to the district court. That court's Nov. 7 unanimous decision, written by U.S. Circuit Judge Paul Niemeyer, requires the state to propose a new map by March or have it done by a court-appointed commission.

Key to the court's decision, Kimberly said, was a “road map” on how to prove a First Amendment challenge in a concurrence by Justice Elena Kagan in last term's Gill v. Whitford, a partisan gerrymandering challenge to Wisconsin's Republican-drawn state legislative map.

U.S. District Judge James Bednar, who had voted three times against the challengers at different stages, concurred in the Nov. 7 decision on the basis of the Kagan concurrence. U.S. District Judge George Russell III was third member of the three-judge court.

“I think Justice Kagan's concurrence, which reflects a lot of the same arguments we were making the last time in Benisek, builds off a large body of law concerning ballot access and voting rights cases,” Kimberly said.

If the Supreme Court does take up the gerrymander cases, Justice Brett Kavanaugh will be in the seat previously held by Justice Anthony Kennedy—long the decisive vote in these cases. The justices have never struck down a redistricting map because of excessive partisanship in favor of one political party.

The Maryland challenge has been an “entirely pro bono effort and no fundraising” said Kimberly, assisted by a Mayer Brown team of eight to 10 lawyers.

“We paid all the hard costs,” Kimberly said. “Now that we've won in the district court, we have to file a fee motion. Many thousands of attorney hours were spent.”

SCOTUS Headlines: Jones Day's Clerk Coup; Kavanaugh Collegiality & More

>> The law firm Jones Day lands a record 11 Supreme Court law clerks as associates. From left to right, above: Stephen J. Petrany, Donald L.R. Goodson, David R. Fox, Cynthia Barmore, Mary H. Schnoor, Carlton Forbes, Elizabeth G. Bentley, Carmen G. Iguina Gonzalez, Eric Tung and James R. Saywell. Not pictured: Brittney Lane Kubisch. [NLJ]

>> Justice Elena Kagan says it's too soon to tell how the court dynamics will change without Kennedy as the swing vote. [NLJ]

>> “In the five weeks since Brett Kavanaugh became the newest justice after a divisive confirmation fight, the court's members are going out of their way to offer public displays of collegiality during arguments.” [Bloomberg] CNN has more here: “Kavanaugh has deferred to his colleagues in oral arguments and quickly adhered to the court's institutional traditions.”

>> The justices on Nov. 30 will consider a series of cases that confront the scope of LGBT protections under Title VII. The Justice Department has lined up against the EEOC, which has favored broad anti-discrimination protections. [New York Times]

>> The female justices of the Supreme Court tend to be the first to speak up at oral arguments. [Bloomberg Law]