Welcome to Supreme Court Brief. Today is Auer's hour at the Supreme Court, and the justices will see a familiar Mayer Brown team in court. More on that below. Plus: Justice Elena Kagan, who'd hunted with the late Antonin Scalia, offered best wishes to an Alaskan man who prevailed in his hovercraft case. Scroll down for some big headlines, including reports on yesterday's Trump-Twitter arguments in the Second Circuit. Tips and feedback welcome: Contact us at [email protected]and [email protected], and follow us on Twitter at @Tonymauro and@MarciaCoyle. Thanks for reading!

 

 

 

Mayer Brown Duo Takes on Gerrymandering, 'Auer' Doctrine

Today is Auer's hour at the Supreme Court.

Arguments begin at 10 am in the case of Kisor v. Wilkie, the high-profile test of the so-called “Auer” regulatory deference doctrine, named after the 1997 decision Auer v. Robbins, which conservatives have long targeted for extinction.

But if the justices do a double take when they take their first glance at the lawyers arguing, they can be forgiven; they saw two of the lawyers just yesterday.

Mayer Brown partner Paul Hughes will be representing the petitioner in the Kisor case, and sitting next to him will be fellow Mayer Brown partner Michael Kimberly (at left) in the role of “second chair.”

On Tuesday, it was the other way around, with Kimberly arguing in the gerrymandering case Lamone v. Benisek, and Hughes taking second-chair status.

For both of them, this week's arguments mark their fifth Supreme Court arguments—their second this term—and their togetherness at the lawyers' table is no surprise.

They first met at Yale Law School in 2005 in the first class of the school's Supreme Court Clinic, which they now co-direct. They both graduated in 2008, and after appellate court clerkships, both were hired by Mayer Brown in 2009. They made partner in 2015.

Working together as co-counsel, they've brought 22 Supreme Court merits cases to the firm, according to Hughes.

The two have worked so closely together that Kimberly said in an interview that “we could have swapped” and argued each other's cases this week. Kimberly has been involved in the Maryland gerrymandering dispute for four years, but Hughes was co-counsel, so knows the intricate details of the case.

“We approach these cases in team fashion,” including brief writing, oral argument preparation and moot courts, Kimberly said. When they write their briefs, he added, “there are a lot of strategic decisions to make, and we are the sounding board for each other.”

At argument, they'll trade notes discussing which points are most important in responding to their adversaries.

“We have lunch together a lot of the time, and we're on each other's moot courts,” Hughes said. “It's a continuing conversation.” And yes, they can detect when each other is stressed out, Hughes said. “When one of us is under water, we help each other.”

 

 

 

'A Slice of Alaskan History'

There's something special about cases from Alaska that bring out the historian, humorist and even poet or writer in Supreme Court justices. Maybe it's because, as Justice Elena Kagan said Tuesday in Sturgeon v. Frost, Congress in the Alaska National Interest Lands Conservation Act, made the state in some matters the exception, not the rule.

That was good news for John Sturgeon, who had been riding his hovercraft up a stretch of the Nation River within the Yukon-Charley Preserve for decades to go moose hunting. That is, until the National Park Service told him the agency's rules prohibit hovercrafts on navigable waters within the park's boundaries. Sturgeon sued, arguing the Park Service can't regulate lands or waters that the federal government does not own.

During arguments in November, Chief Justice John Roberts Jr. came to the defense of, not Sturgeon, but hovercrafts. Triggering laughter in the courtroom, he said, “While you may think a hovercraft is unsightly, I mean, if you're trying to get from point A to point B, it's pretty beautiful.”

The case had been before the justices once before in 2016. Roberts, who represented Alaska in several cases while in private practice, wrote in considerable detail about the history of Alaska before reaching the court's decision and leaving open whether the Nation River qualified as “public land.”

In Tuesday's decision, the court unanimously agreed with Sturgeon.

After writing a “slice of Alaskan history,” Kagan said the Nation River doesn't qualify as public land under the Alaska National Interest Lands Conservation Act, and the Park Service doesn't have authority to regulate sturgeon's activities on the part of the river in the Yukon-Charley.

“That means Sturgeon can again rev up his hovercraft in search of moose,” Kagan said. And, as she read a summary of her opinion from the bench, she ended with: “Accordingly, we reverse the decision below and wish Sturgeon good hunting.”

Kagan might know a thing or two about hunting. Kagan said last year about hunting with the late Antonin Scalia: “I actually quite liked it, which I think some of my East Coast friends are horrified about.”

 

 

 

Supreme Court Headlines: What We're Reading

>> Can President Trump Block His Critics on Twitter? Federal Appeals Court Weighs That Issue. “The Supreme Court has not directly addressed how the law applies to expanding digital spaces for public debate, and the case involving the president's account is a high-profile legal test that already has affected how elected officials around the country interact online with constituents.” [The Washington Post] More here at New York Law Journal.

>> Businesses Target Scalia Opinion in High Court Regulatory Fight. “A U.S. Supreme Court ruling written by conservative icon Justice Antonin Scalia has become an unlikely target for business groups. And now the court may be poised to overturn it. Scalia's 1997 opinion requires judges generally to defer to federal agencies' interpretations of their own regulations. Industry trade associations say the decision gives agencies too much power, fostering onerous and unpredictable rules.” [Bloomberg]

>> Where John Roberts Is Unlikely to Compromise. “Government remedies tied to race, whether public school integration plans or university affirmative action, Roberts believes, instead hurt African-Americans, Latinos and other racial minorities,” Joan Biskupic writes. [CNN]

>> U.S. Supreme Court Rejects Shoe Retailer Zappos Appeal in Data Breach Case. “Backed by business groups such as the U.S. Chamber of Commerce, Zappos said in a court filing that data breaches are a fact of life in an increasingly digital world and the court should shield retailers, employers and service providers from 'sprawling and costly litigation.'” [Reuters]

>> Kagan, Gorsuch Show Divide Over Rigged Electoral Maps. “Going down that road would suggest that Justice Gorsuch's attempt to sort of say 'This is not so bad because the people can fix it,' is not so true because you're suggesting that the people really maybe can't fix it,” Justice Elena Kagan said Tuesday. [NLJ]

>> Supreme Court Rules Against Sailors Injured in Cole Attack. “The Supreme Court on Tuesday ruled against sailors injured in the 2000 bombing of the destroyer Cole in Yemen by Qaeda operatives, saying the sailors had failed to serve their legal papers properly in a lawsuit against the government of Sudan. The decision threw out a $314 million default judgment, though the court said the sailors should be able to pursue further litigation.” [NYT]