The Supreme Court offered its first opinions of the new year yesterday, and Justice Brett Kavanaugh broke the ice with his first signed ruling—unanimously writing in support of arbitration. But there was a second opinion issued—and we solve the mystery of how a non-Supreme Court clerk or regular member of the Supreme Court bar got the argument assignment from Justice Clarence Thomas. Plus: Justice Stephen Breyer provides some insight into why using the word “overruled” is disfavored even if true. Thanks for reading Supreme Court Brief. We welcome comments and tips at [email protected] and [email protected].

Why Justices Might Eschew Using 'Overruled'

Have you ever wondered why a Supreme Court decision that repudiates the legal reasoning of a precedent doesn't use the magic word “overruled”? Justice Stephen Breyer offered some thoughts on that Tuesday.

During arguments Tuesday in the Indian treaty case Herrera v. Wyoming, the justices struggled over claims that a 1896 high court decision—Ward v. Race Horse—did or did not apply after the court subsequently rejected its reasoning in the 1999 opinion in Minnesota v. Mille Lacs Band of Chippewa Indians.

John Knepper, Wyoming chief deputy attorney general, argued the Race Horse decision was was still applicable to the Crow Tribe's treaty.

Justice Elena Kagan said at Tuesday's argument: “And it's true that [Mille Lacs] did not go all the way to overruling the case, but it came up like half a step short of that. It basically said the case was wrong.”

And this is what Breyer said:

“Along comes Mille Lacs and it says: 'Reason 1 is no good. We think the opposite. Reason 2 is no good. We think the opposite. Reason 3 we think isn't any good either. We think the opposite. And, therefore, Race Horse doesn't bind us.' Possibly they should have added a fourth thing, and, therefore, the words, 'Race Horse is overruled,' but the court didn't.”

Breyer continued: “I can understand that. I can perhaps understand that better than you. There are a lot of things to do every day, and you have to write your opinions, and you start putting in a word like 'overruled' and some of your colleagues might think: 'Don't do it; you don't know what you're getting,' et cetera. All we have to decide for this case is that Race Horse doesn't bind us, okay? So maybe we should say Race Horse is overruled.”

We'll find out by the end of June—stay tuned.

How Amy Weil Got Thomas's Amicus Call

Atlanta attorney Amy Weil of The Weil Firm lost her first U.S. Supreme Court argument yesterday when the unanimous decision in Culbertson v. Berryhill was issued. Hours after getting the news, she had only gratitude for what she called the “awesome experience” of arguing before the justices and a “leap of faith” by Justice Clarence Thomas.

Thomas had picked Weil as amicus counsel to defend the judgment of the U.S. Court of Appeals for the Eleventh Circuit after the U.S. Justice Department, in a change of position, agreed with the petitioner, Richard Culbertson, an Orlando, Florida, social security disability practitioner.

In naming Weil, Thomas, circuit justice for the Eleventh Circuit, broke with the high court's tradition of appointing former Supreme Court clerks when the need arose for someone to defend the lower court judgment.

Weil won the appointment because of her appellate experience and a professional connection to Thomas.

Amy Weil

Weil was a former federal prosecutor who spent 25 years in the U.S. Attorney's Office for the Northern District of Georgia, 18 of which she served as chief of the appellate division. She has argued five en banc Eleventh Circuit arguments which, she said, are similar to high court arguments.

Thomas spoke twice at the Eleventh Circuit Appellate Practice Institute, a seminar that she helped to establish. “I had the pleasure of meeting him on several occasions and always expressed an interest in arguing in the Supreme Court,” Weil said Tuesday. “I have been pretty relentless at times. I give my card everywhere and he probably has a lot of them.”

Still, she added, it was “very generous” of Thomas who could have turned to a regular of the Supreme Court bar. “It's a lot of work and having experience is helpful,” she said. “But it is also good for them to hear from other people, not just the people they are used to hearing from. I think others might approach arguments in a different way if not part of the Supreme Court bar.”

Arguing the case in November was Weil's “greatest professional experience,” while writing the brief was the hardest. “I did eight moot courts” she said. “I would have done more. You can never prepare enough. The bar, my colleagues, were so generous with their time in helping to moot me. I loved it.”

Weil said she hopes her “outsider” appointment sets a precedent for more such appointments and more appointments of women. And, yes, she would do it again if asked. “Of course,” she said.

>> The Culbertson case may have flown low on the public's radar but it was important to social security disability lawyers who handle some of the more than 12,000 social security disability appeals reviewed annually by federal courts.

In his opinion, Thomas agreed with Culbertson's counsel, Daniel Ortiz of the University of Virginia School of Law, that federal law did not cap attorney fees at 25 percent of a claimant's past-due benefits for an attorney's representation both before the agency and the court but had separate 25 percent fee caps for court and agency representations.

Although rejecting Weil's contrary arguments, Thomas said she “ably discharged” her assigned duties.

The Culbertson case was the sixth high court argument for Ortiz, who is the director of the law school's Supreme Court Litigation Clinic, and it was the clinic's 15th high court case since its inception in 2006.

What We're Reading: SCOTUS Headlines

>> By granting review in a case challenging the ban on registration of “immoral” or “scandalous” trademarks, the U.S. Supreme Court last week revived a perennial question: will the f-word be spoken aloud in the court's hallowed chamber? [NLJ]

>> In his first majority opinion as a U.S. Supreme Court justice, Brett Kavanaugh on Tuesday issued a pro-arbitration decision that won unanimous support from his new colleagues. It is customary for new justices to be assigned to write opinions in cases that are unanimous. [NLJ]

>> The justices restored a contempt order against a state-owned foreign company that is defying an apparent Robert Mueller grand jury subpoena. The company has asked the court to grant certiorari. [NLJ]

>> “The U.S. Supreme Court declined Jan. 7 to take a high-stakes cyber-vulnerability case with implications for other consumer class actions.” [Bloomberg Law]

>> Justice Ruth Bader Ginsburg, recovering from cancer surgery, remained off the bench Tuesday for arguments. [Reuters]

>> The first bill introduced by the Democratic-led House of Representatives last week contains a provision that would include U.S. Supreme Court justices for the first time in a newly created code of conduct. [NLJ]

>> The U.S. Supreme Court is dipping a toe back into the issue of patent eligibility. Five years after a series of decisions strengthening Section 101 of the Patent Act, the high court asked the solicitor general for its views on HP v. Berkheimer. [NLJ]