The Supreme Court returns to the bench today for its next-to-last argument cycle of the term, and the justices are expected to issue orders that could help define its docket for next term. We're looking out for possible opinions Tuesday and Wednesday. We've got a quick rundown of some of the advocates arguing this cycle, and check out what Donald Verrilli and Paul Clement are saying about Noel Francisco. Thanks for reading, and contact us anytime at [email protected] and [email protected].

Spotlight: Who's Arguing This Cycle

The argument cycle that begins today brings familiar faces to the Supreme Court lectern, along with some newcomers and interesting twists. Here's a rundown:

>> First up today are the racial gerrymandering case Virginia House of Delegates v. Bethune-Hill, and Smith v. Berryhill, a Social Security case. Two of the lawyers arguing today are just warming up; both Paul Clement of Kirkland & Ellis and Michael Kimberly of Mayer Brown will argue again next week, in Rucho v. Common Cause and Lamone v. Besinek, respectively.

>> For Clement, the arguments will be his 94th and 95th before the high court. And he is no stranger to multiple arguments in the same sitting of the court. In October 2017, he argued in Epic Systems v. Lewis and Jesner v. Arab Bank nine days apart. In fact, this will be the second time he will be arguing in both Virginia and North Carolina redistricting cases in the same cycle. The first was in December, 2016, and both then and now, Clement's adversary has been Marc Elias of Perkins Coie.

>> In the Berryhill case today, Deepak Gupta, founder of Gupta Wessler, will be arguing at the invitation of the court in defense of a position about disability benefits that the U.S. solicitor general no longer embraces. The twist is that Gupta, whose litigation has been mainly consumer- and plaintiff-oriented, will be arguing at odds with a Social Security claimant. The case arose from the U.S. Court of Appeals for the Sixth Circuit, which probably means that Justice Sonia Sotomayor, who handles Sixth Circuit matters like this, invited Gupta.

>> Only four of the 22 lawyers arguing in this cycle are women, and none of the four women work for private law firms. The women are: Morgan Ratner and Rachel Kovner (above), assistants to the U.S. solicitor general; Sheri Lynn Johnson, professor at Cornell Law School, and Allison Riggs, staff attorney at the Southern Coalition for Social Justice. Kovner is awaiting confirmation to the U.S. District Court for the Eastern District of New York.

>> Johnson is arguing March 20 in probably the most high-profile case of this cycle: Flowers v. Mississippi, involving racial bias in the selection of jurors in a capital case. Johnson and her adversary, Jason Davis, a Mississippi assistant attorney general, appear to be first-timers at the Supreme Court lectern. Johnson is assistant director of the Cornell Death Penalty Project.

Verrilli and Clement Reflect on Noel Francisco

Two former U.S. solicitors general recently reflected on solicitor general Noel Francisco's increasing rush to the U.S. Supreme Court, leaping over federal appellate courts with direct appeals to the justices.

Paul Clement (above right), a Kirkland & Ellis partner, described himself as a “piker,” taking only small bets. Munger, Tolles & Olson partner Donald Verrilli Jr. (above left) called himself a pragmatist who eschewed taking the path Francisco has regularly forged.

“Looking back to my time as solicitor general, with the war on terror cases and the like going on, I felt like we asked for the Supreme Court's intervention on a relatively high level historically, and yet comparatively, I was a piker in terms of what's going on now,” Clement said during a Supreme Court review panel at the Corporate Counsel Institute at Georgetown University Law Center.

“I don't think anyone is to blame,” Clement, an SG during the George W. Bush administration, said. “Part of it is this combination of controversial policies of the administration combined with a growing tendency for district courts to enter nationwide injunctions.”

Verrilli, an Obama-era solicitor general, said he almost never went to the Supreme Court before a federal appeals court judged a case.

“In the last years of the Obama administration, people who wanted to challenge administration policies identified a district court forum where they thought there was a high likelihood they would get a good decision and then they would get a nationwide injunction,” Verrilli recalled. “The question was what do we do about it?”

Verrilli said his office applied a “pragmatic calculus” in deciding not to race to the Supreme Court. “I was concerned we wouldn't get a sympathetic hearing on the underlying merits and therefore there was a real risk we would damage ourselves if we tried to push the cases up.”

Verrilli, like Clement, would not criticize Francisco's tactic. “They have institutional interests to protect and the court is not telling them not to do it by denying their requests, so it makes some sense that they follow the course they are following,” Verrilli said.

>> Besides the SG's attempts for cert before judgment, the two veteran advocates said another dominant theme of the current term is the high court's apparent effort to avoid controversial cases when possible.

“Everybody has a slightly different perspective on the Kavanaugh confirmation hearing, but probably one thing all eight justices could safely agree on is it wasn't a great spectacle for the court,” Clement said. All of the justices, particularly Chief Justice John Roberts Jr., he added, have been trying in various ways “to steward the institution around some controversies and being very conscious of the role of the court in society and its reputation.”

>> Clement and Verrilli agreed that “textualism” has become a dominant theme of a majority of the court in statutory construction cases. “With the two new justices, the very textualist approach to statutory construction that we associate with Justice Scalia is alive and well on the court,” said Clement.

Supreme Court Headlines: What We're Reading

• New Dismissal of Kavanaugh Ethics Claims Divides 10th Circuit Panel. The 10th Circuit judicial council was divided over dismissing ethics appeals against now-Justice Brett Kavanaugh. The council majority upheld its earlier rejection of the claims. Judge Mary Beck Brescoe, in dissent, said the council should disqualify itself. [NLJ]

• Supreme Court Expands Fight Over Citizenship Question. “The U.S. Supreme Court said it will expand its scheduled showdown over the 2020 census to consider whether the Constitution lets the Trump administration add a question asking whether people are American citizens.” [Bloomberg] SCOTUSBlog has more here.

• Supreme Court Has Pick of LGBT Discrimination Controversies. ”A key question is whether Chief Justice John G. Roberts Jr. is ready to extend the Masterpiece Cakeshop decision.” [Bloomberg Law]

• Dozens of Class Actions Build on Supreme Court's 'Janus' Union Ruling. Anti-union organizations, building on last year's successful challenge to public-sector union fees, have returned to the U.S. Supreme Court with three new challenges to the operations of organized labor. [NLJ]

• SCOTUS Trips Up 'Fortnite' Dance-Move Suits. Litigation over allegedly stolen dance moves in the popular game Fortnite has been paused in the wake of a U.S. Supreme Court decision concerning copyright infringement. [Law.com]