The justices' winter interlude comes to an end next week and perhaps, too, a big lingering question: Will the court squeeze into arguments this term the fight over a citizenship question on the next census? For now, it's time to focus on one of the term's biggest cases—Auer deference! We take a look at some of the many amicus briefs. Plus: Sen. Sheldon Whitehouse recently raised questions—in a letter to the chief—about the funding of amicus briefs. Scroll down for our SCOTUS headline roundup. Thanks for reading, and contact us at [email protected] and [email protected].

As 'Auer' Nears—Is 'Chevron' Next?

In a still low-key Supreme Court term, it might not seem surprising that an administrative law issue triggers—so far—more than two dozen amicus briefs from a broad range of business, labor, consumer, civil liberties, local and state governments, and other organizations.

But even in a term packed with high-profile issues, a challenge to so-called “Auer deference” would ignite the views of those with stakes in government regulation—and they are legion.

The Supreme Court set the stage for this long-sought goal of the conservative movement when it granted review in the case Kisor v. Wilkie to answer only one of two questions presented: Should the court overrule Auer v. Robbins and its root decision, Bowles v. Seminole Rock & Sand Co.? Those decisions direct courts to defer to agencies' reasonable interpretations of their ambiguous regulations.

Several justices in recent decisions had signaled an interest in revisiting Auer. The late Justice Antonin Scalia wrote the unanimous Auer decision in 1997 but eventually questioned its correctness.

In 2013, Chief Justice John Roberts Jr., joined by Justice Samuel Alito Jr., suggested the court might want to revisit it. And Justice Clarence Thomas, joined by Justice Neil Gorsuch, questioned the ruling's constitutionality in a dissent from a denial of review in another case last year.

Although Justice Brett Kavanaugh has never weighed in on Auer, he and Gorsuch, when they both were lower court judges, criticized the Chevron doctrine, which directs courts to defer to agencies' reasonable interpretations of their implementing statutes.

So far, 25 amicus briefs have been filed, and most of them urge the justices to overrule Auer and Seminole Rock. The briefs were mostly drafted by veteran Supreme Court and appellate advocates from such firms as Covington & Burling, Baker Botts, Sidley Austin, Gibson, Dunn & Crutcher, Latham & Watkins, Goodwin Procter, Williams & Connolly, and more. The United States is expected to file a brief later this month.

>> Overrule Auer & Seminole: Covington partner Mark Mosier for the U.S. Chamber of Commerce and Baker Botts partner Evan Young for the National Association of Home Builders, like other business-related amici, argue Auer and Seminole violate separation of powers; conflict with the Administrative Procedure Act, and encourage agencies to adopt vague regulations.

>> Overrule Auer, but not Chevron: Elbert Lin of Hunton Andrews Kurthsubmitted a brief on behalf of the Utility Air Regulatory Group. Lin argues Auer deference, unlike Chevron deference, “blurs the distinction between interpretation and implementation of law.”

>> Overrule Auer, but not Seminole: The AFL-CIO's Matthew Ginsburg contendsSeminole balanced the need for judicial oversight with deference to an agency's delegated authority to apply reasonable interpretations of its regulations, but “Auer has come to stand for the indefensible proposition that an agency's interpretation of its regulations is virtually unreviewable.” Sidley Austin's Jean-Claude Andre, for National Immigrant Justice Center and American Immigration Lawyers Association, agrees for additional reasons.

>>Leave Chevron/Auer/Seminole alone: Scott Nelson of Public Citizen Litigation Group argues in his brief that all three precedents have “legitimate grounding in congressionally delegated authority” and properly applied, deference is not “lawlessness or judicial self-abnegation.”

Amidst these administrative law primers, it's easy to forget that the case is about James Kisor, a Vietnam War veteran, who first sought and was denied disability benefits for combat-related PTSD in 1982 and since 2006, has been seeking retroactive benefits.

Mayer Brown partner Paul Hughes is Kisor's high court counsel—read his petition here. Arguments are set for March 27.

'Anonymously Funded' Briefs Questioned

“Americans deserve to know who is behind these judicial lobbying efforts,” Sen. Sheldon Whitehouse, D-Rhode Island, said in a recent letter to Chief Justice John Roberts Jr. and Court Clerk Scott Harris.

Whitehouse has launched a campaign of sorts to reform what he calls the “fecklessness” of the U.S. Supreme Court's rules requiring the disclosure of who is behind amicus curiae briefs filed with the court.

The Supreme Court, according to Whitehouse, has opened the door to the “well-heeled, repeat-player amici who routinely flood the court with anonymously funded briefs.”

>> Read the full letter from Whitehouse here, and our report on the letter.

RBG 'Looked Great' at DC Event

There have been books, movies, an action figure, an opera, a bobble head, t-shirts, a lego and now “The Long View: A Portrait of Ruth Bader Ginsburg in Nine Songs.”

On Monday night at the National Museum of Women in the Arts, the justice's daughter-in-law, composer/soprano Patrice Michaels, performed the 75-minute concert song cycle for students of Washington, D.C. area high schools and Philadelphia's Constitution High School.

The justice, reportedly sitting unobtrusively in the rear of the hall, made her first public appearance that evening since her Dec. 21 surgery to remove cancerous nodules in her left lung.

Morrison & Foerster partner Joseph Palmore, who attended, tweeted: “Great concert, and the best part—RBG was there! She looked great.”

The song cycle, with music by Lori Laitman, Lee Hoiby, Stacy Garrop, Vivian Fung, and John Musto, drew upon aspects of Ginsburg's personal and professional life through song settings of letters, remembrances, conversations, and court opinions. The concert, which can be seen here, was hosted by the National Constitution Center, headed by Jeffrey Rosen.

The Washington Post reported that Ginsburg's son, James, said the justice is walking a mile a day and working with her personal trainer.

Ginsburg has a deep love of opera, in particular, and as this reporter has witnessed, she often works in her chambers with a favorite opera playing in the background. One of the photographs on her bookcase in her chambers shows opera tenor Placido Domingo serenading the justice when both received honorary degrees during Harvard's 2011 commencement. She wears a wide and rare smile.

Since her surgery, Ginsburg has been participating in the work of the court from her home. She was not in attendance at Tuesday night's State of the Union address. Chief Justice John Roberts Jr., joined by justices Elena Kagan, Brett Kavanaugh and Neil Gorsuch, made up the court contingent.

The justices are back on the bench Feb. 19.

Supreme Court Headlines: What We're Reading

>> “It is a very complicated process that I probably should not say too much about. I think anybody sane has mixed feelings about anything so auspicious. It was a tremendous honor to even be thought of, so I felt very honored and flattered. But, it is also a political process, so it's scary,” said U.S. District Judge Ketanji Brown Jackson (above) in Washington, who was under consideration by Obama for the Antonin Scalia vacancy. [NBC News]

>> “If a lawyer argued a case at the U.S. Supreme Court this term, chances are it was a man. An 85 percent chance, to be exact. The court is currently at the midpoint of its 2018 term, which runs from October to June. But of the 112 appearances made by advocates at the podium so far this term, only 17 were made by women.” [Bloomberg Law]

>> Chief Justice John Roberts Jr. said he felt “torn between his heart and his head” in deciding the first challenge to the Affordable Care Act at the high court. Michael O'Donnell, reviewing Joan Biskupic's new book “Chief,” writes: “After trying unsuccessfully to find a middle way with [Anthony] Kennedy, who was 'unusually firm' and even 'put off' by the courtship, Roberts turned to the Court's two moderate liberals, Stephen Breyer and Elena Kagan. The threesome negotiated a compromise decision that upheld the ACA's individual mandate under Congress's taxing power, while striking down the Medicaid expansion.” [The Atlantic]

>> “Neomi Rao, the Trump administration's choice to fill the D.C. Circuit vacancy left by Justice Brett Kavanaugh, defended, and expressed some regret for, writings she penned in the 1990s that have come under scrutiny,” our colleague Ellis Kim writes. [NLJ]

>> “Supreme Court advocate Lisa Blatt recently announced she'd join her husband, David, at Williams & Connolly in Washington. Add another couple to a small known group of high-profile attorneys who are married and practice at the same firm.” [Big Law Business]

>> At least two appeals are challenging the dismissal of ethics complaints against now-Justice Brett Kavanaugh. The challenges raise novel and complicated questions about jurisdiction and the scope of conduct rules within the federal judiciary. [NLJ]