The justices on Tuesday made headlines for what they did—and did not—do on pending orders. We'll get the first major firearms decision in nearly a decade, but the court pushed back making any decisions on LGBT workplace rights, pay equity and DACA until perhaps the next term. What's left? A lot. We've got updates on the “peace cross” case being argued in February, and a Goodwin Procter associate offered a few tips on preparing to watch oral arguments. Thanks for reading Supreme Court Brief. Tips and comments welcome at [email protected] and [email protected].

A Potential Blockbuster Standing Tall 

With hot-button issues poised to fall by the wayside for argument this term, the dispute over a longstanding “peace cross” on public land in Maryland may be the biggest blockbuster the Supreme Court will hear in coming months.

On Tuesday, the court made it even bigger. The justices gave the consolidated First Amendment cases of American Legion v. American Humanist Association and Maryland-National Capital Park and Planning Commission v. American Humanist 10 more minutes for the oral argument set for February 27.

The court's action means more than just more time to talk. In a January 9 letterasking for divided argument, the petitioners made it clear they want the justices to have full exposure to all the arguments available to get the court to rule in favor of keeping the World War I monument where it has stood for 93 years. More chances for the cross supporters to win, in other words.

The commission, for example, says the court can rule in favor of the cross without overturning the so-called Lemon test, reviled by conservatives. The American Legion, for its part, would like the Lemon test replaced by a standard that would look at whether Maryland's cross coerces people to take part in religious activities. Here is the lineup for the argument:

>> Neal Katyal of Hogan Lovells, with 15 minutes to state the case for keeping the cross, arguing on behalf of the Maryland commission.

>> Jones Day's Michael Carvin, with ten minutes to argue on behalf of the American Legion, also in favor of the cross.

>> Deputy solicitor general Jeffrey Wall, in this case the acting SG, is likely to argue 10 minutes for the cross. Solicitor General Noel Francisco is recused in the case, presumably because of his past ties with Jones Day, which has long been involved in the case.

>> Monica Miller, senior counsel for the American Humanist Association, has 35 minutes to defend the Fourth Circuit's ruling that the cross “has the primary effect of endorsing religion and excessively entangles the government in religion.” It will be Miller's first Supreme Court argument.

Addendum: On January 11, the court granted two other Katyal petitions, making for a busy few months ahead for him, counting the cross case. But for one of the granted cases, Fort Bend v. Davis, Hogan appellate partner Colleen Sinzdak, a former clerk to Chief Justice John Roberts Jr. is set to take the reins for argument.

How to Prepare for Watching Oral Arguments

Jaime Santos, an associate at Goodwin Procter, got in the Supreme Court bar line at 7:20 a.m. January 15, waiting to watch the oral argument in Home Depot U.S.A. Inc. v. Jackson. Strangely enough, she was the only person in the line until about 8 a.m., and while she waited, she had an idea.

“After finishing my review of the briefs, I thought it would be fun to share some of my argument-watching tips while waiting for others to join me in line,” said Santos, who has been a key force in the #MeToo effort to compel lawyers and judges to take bias and harassment issues seriously.

And so she did, tweeting 10 tips in a useful thread that will help bar members navigate the logistics and traditions that govern how members of the Supreme Court bar observe oral arguments. Highlights:

>> “The lockers are pretty big. There is NO REASON to wear high heels to the courthouse. Wear sensible shoes and then change before going into the courtroom.

>> “Unless you're arguing, there's really no reason high heels to wear at all.You'll be standing in line a lot, so wear some comfy flats. There are a lot of lines—the outdoor line, the first indoor line before getting your card for argument, the second indoor line before going up the stairs, and the third line on the stairs.

>> “When standing in the first two indoor lines, stand on the thick, thick rug, not on the marble floor. Your back will thank me. (I see people make this mistake all the time.)”

>> “You want to see an argument but didn't read the briefs? No problem. Read the Statement of the Case and the Summary of Argument in each party's principal brief (plus any brief filed by the Solicitor General), then skim the whole reply. That'll give you the info you need, (unless I'm listed as counsel on an amicus brief, and then definitely read every word of that one too, preferably aloud to your fellow line standers.)”

>> “Bring quarters for the lockers. Super pro tip: bring EXTRA quarters. If someone (maybe a future client) forgot hers, you'll look like a hero.”

>> “Talk to people in line and sitting next to you once you're in the court. I've gotten one case that way and made several friends that way. Don't, I repeat DON'T, be all anti-social and tweet rather than talk to your line mates.”

>> “Cutting in line is not cool. You want to stand next to a friend? You can both stand together at the spot in line where the person farthest back is standing.”

>> “Go with a friend. Once you're in the courthouse, you'll be standing at the first inside line for a looooong time (can be an hour or more). If you are standing with a friend, you can chat, or you can take turns going to the cafeteria for a food or sit break. (Doing so does not violate the line-cutting rule as long as you were both in line together to begin with.)”

Another tip from us reporters who cover the court: if you end up sitting all the way to the left as you face the bench, be cautious about draping your elbow over our writing desk area. We don't mind, honestly, but the court police will tell you to move your arm.

Supreme Court Headlines: What We're Reading

>> “It was a milestone term for the U.S. Supreme Court in 2017–2018: Amicus curiae briefs were filed in every one of the 63 argued cases, averaging just over 14 briefs per case, a new record.” [Columbia Law School]

>> “The Supreme Court is not likely to review during its current term the program that shields young undocumented immigrants brought to the United States as children, leaving in place the Obama-era initiative that the Trump administration has tried to end.” [The Washington Post]

>> After nearly a decade and numerous denials, the U.S. Supreme Court will jump back into Second Amendment gun regulations. The inference that Brett Kavanaugh made the difference in Tuesday's grant was bolstered by the fact that only three justices—Clarence Thomas, Samuel Alito Jr. and Neil Gorsuch—since 2008 have indicated a desire to hear Second Amendment challenges. [NLJ]

>>”The Supreme Court moved gingerly on Tuesday, seeking to at least postpone some hot button issues like the future of DACA, LGBT employment rights and abortion restrictions for now in order to keep the third branch of government as far away from the controversies currently embroiling the political branches as possible.“ [CNN]

>> “The chief justice's observations are all reasonable, but they do not begin to justify the absence of a Supreme Court code. Nearly all of his explanations apply with equal force to every other court in the U.S., and yet those courts have, without exception, adopted written codes,” Steven Lubet writes. [Slate]

>> Justice Clarence Thomas will help teach a two-week course at Creighton University this semester. [Omaha World-Herald]

>> “The history of cognitive decline on the high court teaches two lessons. First, there is a real risk of a substantial time lag between the onset of mental deterioration and a justice's retirement. But second, and as important, this is a risk that can be contained.” [Politico]

>> “Glass and Gavel: The U.S. Supreme Court and Alcohol,“ by Tulane University political scientist and Supreme Court scholar Nancy Maveety, “is the story of alcohol in American life and law, a cocktail-by-cocktail history of the eras of the Supreme Court, and its alcohol-related decisions.” [NLJ]