The Supreme Court this morning begins to hear arguments in its final argument session of 2018. What an amazing year this has been—a blockbuster term ended in June, a justice retired in July and a second new justice in 18 months took his seat. We spoke with a former Souter clerk who goes before the court for the first time Tuesday as amicus counsel in a fascinating clash between state and Indian sovereignty. Plus: GoFundMe campaigns are taking off for amicus parties in a 21st Amendment challenge. And the justices are scheduled soon to take first looks at challenges involving equal pay and transgender discrimination. Thanks for reading. Comments are always welcome at [email protected] and [email protected].

 

 

Meet the Advocates in Carpenter v. Murphy

 

Riyaz Kanji

Tomorrow in Carpenter v. Murphy, Riyaz Kanji of Ann Arbor's Kanji & Katzen, a former clerk to Justice David Souter, will be one of the rare amicus counsels to win argument time. As counsel to the Creek Nation, Kanji will make his first high court appearance.

This is not one of the more regular Native American boundary-treaty rights disputes that have come before the justices. The case arrives in the unusual guise of a death penalty appeal by Oklahoma, which is challenging a decision by the U.S. Court of Appeals for the Tenth Circuit.

The state argues the appellate court was wrong when it held that Congress never “disestablished”—extinguished—the Creek Reservation, an area that would include most of eastern Oklahoma and nearly 2 million Oklahomans. The court's ruling meant the federal government, not the state, had jurisdiction to prosecute Patrick Murphy, a member of the Creek Nation, who allegedly killed another Creek Indian.

The boundary battle has drawn high-powered advocacy. Kanji, born in Uganda, will share argument time with a familiar face—former acting Solicitor General Ian Gershengorn, chair of Jenner & Block's appellate and Supreme Court practice and former clerk to Justice John Paul Stevens. The two men clerked in the same year. The case marks the return of Gershengorn to the Supreme Court lectern since leaving the solicitor general's office in January 2017.

Arnold & Porter partner Lisa Blatt is counsel to Carpenter, the Oklahoma warden, and she will share argument time with U.S. Deputy Solicitor General Edwin Kneedler. More than a dozen amicus briefs have been filed in the case. Justice Neil Gorsuch, who formerly sat in the Tenth Circuit, is not participating.

We caught up with Kanji for a brief conversation as he prepared for arguments. Here are some highlights, edited for length and clarity:

>> How did you end up with a firm specializing in Native American issues?

I thought I'd be a civil rights lawyer. There was an outfit (Evergreen Legal Services, where he was a Skadden fellow) that needed a treaty lawyer. I worked on shellfish proceedings in United States v. Washington. It was a dream case for a young lawyer. I fell in love with it. I went back and clerked for Justice Souter, and then I worked withWilliams & Connolly, but I knew if I wanted to do this kind of law full time, I had to do something else. After four years, I started this firm.

>> What will you contribute to the high court argument?

The Nation's reservation is at stake. There are some things the Nation can best say in its own voice. Where one is talking about the history of the Nation and the understanding of the treaties and whether the Nation even had a reservation in the first place—we feel there is an important perspective the Nation can bring to the table because it is after all the Nation's history.

>> How will you counter claims by your opponents that a victory for the Creek Nation would “radically” upend state civil, regulatory and criminal jurisdiction in Eastern Oklahoma? The Nation can explain the web of inter-government relationships that works well to address such issues, and can also show how under the existing state of the law, there are real constraints on the Nation's ability to regulate non-Indians which will really limit any consequences of an affirmance.

What Oklahoma is really seeking to do is to have the court upend its settled, text-based test for looking at these issues. If it prevails, we'll be in a brand new world for reservation cases.

 

 

GoFundMe Campaigns Boost Amicus Efforts

There are GoFundMe campaigns for hurricane victims, personal injuries or diseases, shooting victims, grizzly bears and cats, travel, and, yes, U.S. Supreme Court briefs. It's difficult to know exactly when the Supreme Court became the object of these campaigns, but is anyone really surprised?

Two campaigns are underway right now for amicus briefs in Tennessee Wine & Spirits Retailers Association v. Byrd. The justices granted review in this Twenty-First Amendment case in September, but have yet to schedule arguments.

The association, represented by Jones Day partner Shay Dvoretzky, challenges a Sixth Circuit decision striking down Tennessee's law requiring individuals to reside in Tennessee for two years before they are eligible for a license to sell liquor to consumers. The circuit court held that the durational-residency requirements violated the dormant commerce clause.

Dvoretzky's opponent in the wine case is Sidley Austin partner Carter Phillips, counsel of record to Tennessee Fine Wine & Spirits. “I confess that I had never heard of the use of a 'go-fund-me' effort until my co-counsel in the Tennessee case sent me a link to one,” said Phillips. “I suppose conceptually it is not that much different from trade groups that pass around a hat to fund an association brief.”

An amicus brief on the merits may cost about $100,000 plus printing expenses, but most are done on a capped fee basis for half of that or less, according to some high court lawyers.

Wine Freedom, an affiliate of the National Association of Wine Retailers, was looking for a way to involve consumers in the Supreme Court case, said Tom Wark, the association's executive director. Wine Freedom educates consumers on how to be heard on policy and legislative initiatives that support open and free markets in wine, he said.

Wine Freedom set a $5,000 goal to fund the writing and filing fees by J. Alexander Tanford of Indiana University School of Law and Robert Epstein of Indianapolis's Epstein Cohen Seif & Porter. Both lawyers have litigated extensively state bans on wine sales and distribution. Wine Freedom will support the Sixth Circuit decision.

Wark reset the goal to $25,000 after contributions soared past $5,000. They now total more than $16,000. “Consumers kept saying, 'I want to donate,'” said Wark. “I don't think we'll get there. Tanford and Epstein are extraordinarily experienced in this area and I felt terrible that we set it so low initially. They said they'd do it for $5,000 but I think they would have done it for free if we pressed them.”

Wark's association intends to file its own amicus brief, he said, and has retained Kirkland & Ellis partner Paul Clement to write it. The U.S. Alcohol Policy Alliance also has a campaign to fund an amicus brief, this one supporting the Tennessee law. It hopes to raise $5,000; contributions total $2160 so far.

There was at least one other recent campaign: Kyle Velte of the University of Kansas School of Law successfully raised $1200 to cover the costs of her amicus brief last term in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

 

 

Workplace Bias Petitions Could Raise Term's Temperature

Put on your “must watch” list three petitions that could soon shift a low-key term into high gear. The justices are scheduled to take first looks on Nov. 30 at petitions that have galvanized the LGBTQ community.

In R.G. and G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, Alliance Defending Freedom attorneys ask the justices to decide whether the word “sex” in Title VII's ban on discrimination “because of sex” includes “gender identity” and “transgender status.”

In this funeral home case, the Justice Department has lined up against the EEOC's push for broader workplace protections. Altitude Express v. Zarda also focuses on the word “sex” in Title VII and whether it encompasses sexual orientation discrimination. A third petition, from the Eleventh Circuit case Bostock v. Clayton County, is also on the Nov. 30 conference.

>> Another major, but different workplace discrimination issue is on the justices' Dec. 7 conference list. In Yovino v. Rizo, Jones Day partner Shay Dvoretzky, counsel to the Fresno County superintendent of schools, challenges a Ninth Circuit ruling that the Equal Pay Act is violated when an employer uses prior salary as a basis for paying men and women different wages for the same work.

The case also raises a fascinating question about whether a court can count the vote of a judge who died before the case was determined. The judge in this case was Stephen Reinhardt, who wrote the majority opinion and died more than a week before the decision was issued. According to a footnote in the decision, “the majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death.”

 

 

Supreme Court Headlines: What We're Reading

>> Underlying the Apple antitrust case: “The justices will ultimately decide a broader question: Can consumers even sue for damages in an antitrust case like this one?” [Reuters]

>> Kennedy honors: “Justice Anthony Kennedy, who shaped the U.S. Supreme Court's approach to LGBT rights and was a staunch proponent of individual liberty, will be honored next month by The American Lawyer with a Lifetime Achievement Award.” [The American Lawyer]

>> Heritage Foundation revives judicial clerk program: “The language that was in the original application was totally unnecessary and was just a misguided attempt to protect the reputations of the people who were involved. But it was silly, and we shouldn't have done it. It was never our intention to have some kind of loyalty oath. People do not have to be loyal to the Heritage Foundation.” [New York Times]

>> Roberts rebukes Trump: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.” [NLJ]

>> Another fast-track push: “In yet another aggressive attempt to bypass federal appeals courts, the Trump administration asked the Supreme Court on Friday to hear a challenge to President Donald Trump's policy that bars most transgender individuals from military service.” [CNN]

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