We're anticipating the possibility of opinions this morning, followed by arguments in two supervised-release sentencing cases: United States v. Haymond and Mont v. United States. Predicting the outcome of high court cases based on oral arguments is always risky, but yesterday's potentially big ruling on public forum doctrine seemed to disappear into a fact-bound morass. “What I can't do is figure out what the facts are!” Justice Stephen Breyer told the lawyers. Plus: We have a new round of Brett Kavanaugh recusals—this time, cases involving Big Tobacco (and big law firms). Thanks for reading, and contact us anytime at [email protected] and [email protected].

Kavanaugh's New Recusals Involve Big Tobacco

The justices on Monday denied review in eight petitions brought by big tobacco companies challenging Florida court judgments in favor of smokers and deceased smokers' families.

Justice Brett Kavanaugh did not participate in any of them. As is typical of the justices, Kavanaugh did not give any reasons for his recusals, and Kavanaugh was not immediately reached for comment.

But there is one clue from earlier Kavanaugh recusals, and it goes back to his time as a Kirkland & Ellis partner 1997 to 1998, and 1999-2001. The firm was involved then and in later years in defense work for Brown & Williamson Tobacco Corp., which merged in 2003 with R.J Reynolds Tobacco.

As a judge on the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh, pointing to his former Kirkland days, recused five times from cases involving United States v. Philip Morris USA, the government's civil action against cigarette manufacturers and trade organizations under the Racketeer Influenced and Corrupt Organizations Act.

None of the cases before the Supreme Court came from the D.C. Circuit. Rather, they were Florida state and federal cases, with at least one arising from the Eleventh Circuit.

Gibson, Dunn & Crutcher partner Miguel Estrada was counsel of record on five of the eight petitions, with Philip Morris as lead petitioner in four and R.J. Reynolds in one. Jones Day partner Michael Carvin represented R.J. Reynolds in two other petitions. King & Spalding partner Jeffrey Bucholtz was counsel of record in one of the cases.

Kavanaugh, as a new Supreme Court justice, has recused in a handful of cases in which he had some participation while serving on the D.C. Circuit from 2006 to 2018. Any work on tobacco matters during his time as a lawyer in the George W. Bush White House might also give rise to recusal issues. Justice Elena Kagan recused in matters that she was involved in as U.S. solicitor general in the Obama Justice Department.

The justices rarely give reasons for recusals, or any explanation when they refuse a call to recuse. But a proposed addition to the high court's Rule 14 on what should be in a petition for certiorari could offer future hints.

The proposal states:

“A listing of all proceedings in state and federal trial and appellate courts, including proceedings in this court, that are directly related to the case in this court. For each such proceeding, the listing should include the court in question, the docket number and case caption for the proceeding, and the date of entry of the judgment. For the purposes of this rule, a proceeding is 'directly related' if it arises from the same trial court case as the case in this court (including the proceedings directly on review in this case), or if it challenges the same criminal conviction or sentence as is challenged in this court, whether on direct appeal or through state or federal collateral proceedings.” 

And the commentary to the proposed amendment states: “A complete listing of directly related cases will assist in evaluating whether a Justice's involvement in a case before joining the Court might require recusal.”

Narrow Ruling Possible in 'Public Forum' Case

Don't expect a sweeping decision anytime soon from the U.S. Supreme Court to redefine public forums—a hot issue at a time when public figures are using private forums (think Twitter and Facebook) to spread their views.

The court heard arguments Monday in Manhattan Community Access Corporation v. Halleck, a test of whether the private operator of Manhattan's public-access television channels is a “state actor,” making it a public forum that has to allow freedom of speech under the First Amendment.

The public forum issue figured in a trial court's decision last year—now on appeal—that President Trump could not block his unfriendly Twitter followers, even though Twitter is a private company.

As soon as Justice Ruth Bader Ginsburg asked the first question—as usual—the colloquy bogged down in parsing who called the shots: the Manhattan corporation or New York city and state government? The justices' intense interest in the minutiae seemed to guarantee a narrow, fact-bound decision that may pertain only to the unique Manhattan arrangement.

“What I can't do is figure out what the facts are,” an exasperated Justice Stephen Breyer said at one point. His fanciful hypothetical, asking whether the city government would run afoul of the First Amendment by prioritizing a program about New York's hot dogs over a program on New York's subways, was picked up by other justices. Call it the hot dog conundrum.

Michael de Leeuw of Cozen O'Connor, who argued on behalf of the access-channel company, was on the defensive most often as he argued that his client was a private entity. But his adversary Mayer Brown's Paul Hughes also ran into interference when he argued that it was a public forum.

Bottom-line proof that the decision will be super-narrow: Twitter was mentioned only once during the entire hourlong argument. 

Supreme Court Headlines: What We're Reading

>> The posthumous vote of a federal appeals judge doesn't count, the U.S. Supreme Court said Monday, overturning a Ninth Circuit pay-equity decision that included the participation of the late Judge Stephen Reinhardt (pictured above). “That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death,” the Supreme Court said in its decision Monday. “But federal judges are appointed for life, not for eternity.” [NLJ]

>> “A leading conservative legal group is planning an expensive play to save D.C. Circuit Court nominee Neomi Rao, whose path to confirmation has become increasingly uncertain due to new concerns over her record on abortion.” [Politico] Over at National Review, Ramesh Ponnuru has this post: “Neomi Rao's Confirmation Hits a Snag.”

>> “Requiring only men to register for the draft is unconstitutional, a federal judge has ruled.” [NPR] The judge's decision “tracks [Justice Ruth Bader] Ginsburg's gradual development of the law toward ever-greater gender equality.” [Slate]

>> The Supreme Court turned down a bid from Littler Mendelson, representing the restaurant chain In-N-Out Burger, to expand the Janus union-fee ruling to a dispute involving a workplace rule that prohibits employees from wearing buttons. A federal appeals court ruled for the workers, who were wearing “Fight for 15″ pins. In-N-Out Burger alleged the employer was being forced to “endorse” that message by allowing the workers to wear those buttons. [NLJ]