The Supreme Court's long winter recess ends next Tuesday, when arguments will resume and Justice Ruth Bader Ginsburg may take the bench after recuperating from her cancer surgery in December. Looking ahead into March and April, we offer previews of some upcoming arguments sketched out by top court advocates. Also, a look back at Justice Elena Kagan's sharp dissent in a religion case. And at the intersection of law and food, we've got a peek at the annual bake-off at the U.S. solicitor general's office, where the hard-working lawyers deserve a tasty diversion. Thanks for reading, and your feedback is welcome. Contact us at [email protected]and [email protected].

 

 

What's Coming Up: March & April Highlights

With the current Supreme Court term roughly at its midpoint, it's time to look ahead at upcoming oral arguments, if for no other reason than to see which might be more stimulating than some of those that took place during the first few cycles.

The pickings are fairly slim for the argument session beginning February 19. Proof of that proposition came when the Washington Legal Foundation held its mid-term assessment of upcoming arguments, and February arguments were scarcely mentioned.

The three panelists, all keen observers of the court's docket, were Elizabeth Papez, partner at Winston & Strawn, John Elwood, partner at Vinson & Elkins, and Michael Kimberly, partner at Mayer Brown. Here are some of the March and April cases they highlighted:

>> Kisor v. Wilkie, set for argument on March 27, could spell the end of Auer deference, which direct courts to defer to an agency's reasonable interpretation of its own ambiguous regulations.

Kimberly, part of the team for the petitioner, said, “For what I think is a relatively quiet term, it is a pretty big term, I think, for administrative law. The court granted only the first question whether Auer should be overruled, and I think that's a pretty clear indication of where the court is going to go with this case.”

One thing to look out for, Kimberly said, is “how vigorously the more liberal justices of the court, in particular in this circumstance Justice Kagan and Justice Breyer, [will defend] Auer. In the end I think that we will see Auer either be extremely narrowed to the point of irrelevance or downright overturned, and the question is what sort of path is left behind to eventually attack Chevron deference.”

>> Emulex Corp. v. Varjabedian, scheduled for April 15, asks whether the Securities Exchange Act of 1934 supports an inferred private right of action based on the negligent misstatement or omission made in connection with a tender offer.

Papez called the case “a very exciting case for a number of reasons—not least for capital markets. This is a huge case … a tech M&A case … North of 85 percent of mergers in this country are the subject of litigation in the weeks following announcement of the deal. Very significant financially, very significant in terms of the impact on access to capital and the cost of these transactions for our economy.”

>> Iancu v. Brunetti, also scheduled for April 15, is a First Amendment challenge to the Lanham Act's prohibition on the federal registration of “immoral” or “scandalous” marks. Respondent's application to trademark FUCT was turned away.

Elwood mentioned other marks that have been turned away: “Madonna for wine because I guess they thought that was sacrilegious … Taliban cookie company, and Wifebeater. I don't understand the commercial appeal of Wifebeater.”

He continued: “This is going to be among the first [First Amendment] cases we have where Justice Kennedy has been replaced, and you know he has such a long shadow in this area and has for the last 25 years.” Elwood's prediction: I think this one leans to the respondent.”

 

 

Ginsburg's Choice: Kagan on Religion

When she is the senior justice in dissent in religion-related cases, Ruth Bader Ginsburg increasingly turns the writing duties over to Justice Elena Kagan. The latter justice's strong dissent last week from her conservative colleagues' decision to allow the execution of an inmate with an unresolved religious discrimination claim garnered support from across the political spectrum.

Ginsburg has turned to Kagan two other times in religion-related cases: Kagan's first dissent as a new justice in Arizona Christian School Tuition Organization v. Winn (2011) and in Town of Greece v. Galloway (2014).

In 2014, Ginsburg told The National Law Journal that Kagan knows how it feels to be an outsider because she was an outsider in her own faith. Kagan has a “sensitivity” that her other colleagues lack because they have never had that experience, she said.

 

 

SG's Office Takes Bake-Off 'Extremely Seriously'

Everyone knows the usual traditions associated with the Office of Solicitor General—the morning coats during arguments, the office within the Supreme Court, the government's seat always to the right of the lectern. And now… the Annual Assistant Bake-Off.

Sarah Harrington, partner in Washington's Goldstein & Russell and an eight-year veteran of the office, shared her winning ways with some of her #AppellateTwitter colleagues the other evening.

The bake-off started as a contest between two assistants, said Harrington, who served from 2009 to 2017. “The next year it was expanded to include everyone,” she told Supreme Court Brief.

There was a time when the office was dealing with a number of big cases and everyone was working hard, Harrington recalled. “We decided to do something to liven up things and have some fun,” she said.

Participation wasn't mandatory, but it was strongly suggested.

On twitter, Harrington told her friends: “There is only one (now former) Assistant who won every time she entered. Now that I'm on the outside, others have a fighting chance…”

Harrington participated three times and won each time; once she tied because, she said, she didn't vote for her own entry. “I was quite successful in my endeavors.”

Her winning strategy? “When tasting 12-16 desserts, I decided not to do anything chocolate—although I love chocolate—but something lighter,” she said, like her lemon bar and snickerdoodle bar.

The OSG takes the contest “extremely seriously,” Harrington said in a tweet. “Baking not required in the sense that you can use a microwave, stove, brûlée torch, campfire, etc. to make your dessert. I once brûléed in my office… (I loved this tradition.)”

 

 

Supreme Court Headlines: What We're Reading

>> “The Supreme Court could unilaterally adopt an ethics code and end the debate. Nothing but the collective will of the nine justices prevents it,” writes Robert Tembeckjian administrator and counsel to the New York State Commission on Judicial Conduct. Legislation, Tembeckjian argues, “would almost certainly lead to a constitutional confrontation that would ultimately end up in the very Supreme Court that any reputable ethics code would deem conflicted and disqualified from deciding.” [The Washington Post]

>> “The growing number of states embracing the creation of state 'solicitors general' could give female attorneys a chance to get their feet in the door of the insular world of Supreme Court practice.” [Bloomberg Law]

>> A new U.S. Supreme Court ruling is providing fodder for plaintiffs lawyers in their challenges to the mandatory arbitration agreements that gig-economy companies such as Uber and Lyft require their drivers to sign. [NLJ]

>> Trump's judicial nominees, unwilling to say whether Brown v. Board was correctly decided, are tailoring responses to “condemn racism, but refrain from commenting on precedent.” [CNN]

>> Why did Chief Justice John Roberts Jr. side with his liberal colleagues to block a restrictive Louisiana abortion clinic law? The chief justice's yearning for conciliatory and take-it-slow decision-making may be intensifying with the departure of Justice Anthony Kennedy last July. [NLJ]

>> “President Donald Trump urged lawmakers in his State of the Union address to put new limits on abortion, but partisan division in the U.S. Congress means the Supreme Court likely will set the agenda on the divisive issue, as it has for decades.” [Reuters]