As we enter a brief pause before the next cycle of Supreme Court oral arguments, we offer an early (mostly cleaned up) peek at the profanity-laden briefing in Iancu v. Brunetti, set to be argued on April 15. Plus, scroll down for a look at the effort to unearth documents that could shed light on the role of the Federalist Society and other organizations in recent Supreme Court and appellate court nominations. Tips and feedback welcome: Contact us at [email protected] and [email protected], and follow us on Twitter at @Tonymauro and @MarciaCoyle. Thanks for reading!

 

 

 

No Fleeting Obscenities Are Planned

Most U.S. Supreme Court briefs don't make you blush when you read them. But the briefing in Iancu v. Brunetti, set for argument April 15, is most assuredly not suitable for minors.

The case asks whether the statute allowing the government to deny trademark protection for “scandalous” marks violates the First Amendment. Under that law, Erik Brunetti was denied a trademark for his clothing brand FUCT, which he claims actually stands for something: Friends U Can't Trust.

But FUCT is far from the Brunetti brief's most off-color bit of terminology.

To prove the trademark office's inconsistent enforcement of the statute, counsel of record John Sommer listed 34 words that might sound scandalous, only three of which have been handled consistently. It has allowed FCUK, FWORD, and WTF IS UP WITH MY LOVE LIFE? Again, those are mild compared to other unmentionable words and phrases in the brief.

As profane as the brief is, however, Sommer dropped an unusual footnote that will reassure the justices that they won't have to hear the words he wrote about:

“It is not expected that it will be necessary to refer to vulgar terms during argument. If it should be necessary, the discussion will be purely clinical, analogous to when medical terms are discussed.”

Asked why he included the footnote, Sommer said, “I thought it was appropriate to say, and I didn't have to worry about the word limit.” Sommer, general counsel for an unrelated clothing brand, takes on other clients like Brunetti.

It's probably a smart move on Sommer's part. In 2008 and 2012, when the high court heard arguments in FCC v. Fox Television over “fleeting expletives” uttered during live television shows, Sidley Austin's Carter Phillips (at left) was advised by a court official not to utter the words at issue.

As Phillips told us in January, “Given that the clerk called me (along with the SG) not once, but twice to say 'The court does not want to hear those words during argument,' I think there is no chance the court will decide that using FUCT now is okay.”

The Cato Institute also drops f-bombs in its brief to make a somewhat different point: that scandalous speech is valuable to society. Ilya Shapiro, counsel of record in Cato's latest, trademark “funny briefs,” cites the Bible, Shakespeare and a full range of modern-day cultural examples, including the 2011 bestselling book Go the Fuck to Sleep, which Shapiro, the father of two young boys, told the justices in a footnote that he owns.

The Rutherford Institute and a brief on behalf of New York University law professors Barton Beebe and Jeanne Fromer may also send you to the Urban Dictionary to find the sexual meaning of phrases you never heard before. Counsel of record for the Rutherford brief is Megan Brown of Wiley Rein, and William Jay of Goodwin Procter authored the professors' brief.

 

 

New FOIA Suit Targets SCOTUS Nominations

At a Federalist Society meeting in Texas last fall, Leonard Leo, executive vice president of the national organization, thanked Justice Clarence Thomas for coming and agreeing to be interviewed. Thomas, with a hearty laugh, said, “Well, Leonard, since you're the third most important person in the world….”

Thomas undoubtedly was referring to the widespread attention Leo has garnered for his role in Trump Administration judicial appointments to the U.S. Supreme Court and federal appellate courts. Leo and the Heritage Foundation's John Malcolm were credited with building the list of potential Supreme Court nominees for Trump and supporting Justices Neil Gorsuch and Brett Kavanaugh through the confirmation process.

But now American Oversight, the nonprofit liberal-leaning ethics watchdog, wants to know exactly how important Leo, Malcolm, the National Rifle Association and other groups and individuals have been in Supreme Court and other federal court nominations.

The organization's lawyers on April 1 sued the U.S. Justice Department for failing to respond to three Freedom of Information requests for records related to outside influence in judicial nominations.

“The Constitution vests the authority to appoint judges in the president with the advice and consent of the Senate, not Leonard Leo or other ideological outsiders,” said Austin Evers, founder and executive director of American Oversight, in a statement. “Seeking outside input would be one thing, but the administration's apparent total deference appears to be unprecedented and anti-constitutional. The public should get to see the influence that is being brought to bear on the process.”

A spokesperson for the Justice Department declined to comment.

Donald McGahn, the former Trump White House counsel and now Jones Day partner, has disputed the notion the administration outsourced its judicial selection process. He has often noted that he's long been a member of the Federalist Society.

“So, frankly, it seems like it's been in-sourced,” McGahn said at a Federalist Society event in Washington in 2017.

Evers is a former senior counsel in the Department of State, where he worked on oversight and transparency matters. Before that, he was a litigator at Williams & Connolly. FOIA and other public records laws are American Oversight's primary tools and have been used to seek documents in a number of controversial matters involving the Trump Administration.

The latest FOIA suit, filed in the U.S. District Court for the District of Columbia, requests all records reflecting communications between DOJ and Leo, Malcolm, Senate Republican leader Mitch McConnell and staff, Utah Republican Sen. Mike Leeand staff, any of the nine Supreme Court justices and 43 named individuals and organizations. Daniel McGrath and Elizabeth France are counsel for American Oversight.

 

 

Supreme Court Headlines: What We're Reading

• Justice Clarence Thomas Stirs Up a First Amendment Squabble Over Libel Law. For decades, media lawyers and journalists had little reason to worry about such a scenario, thanks to the 1964 Supreme Court decision New York Times v. Sullivan. But on Feb. 19, Justice Clarence Thomas wrote an unexpected opinion that unsettled that sense of security. Always the originalist, Thomas wrote that nothing in the text of the First Amendment required the standard applied in the New York Times case, so the precedent should be reconsidered. [NLJ]

• Here's What Big Law Clients Are Saying About 'Backward' Obamacare Ruling. Big Law appellate advocates including Joe Palmore, Pratik Shah, Sean Marotta, and Caitlin Halligan had a lot to say in amicus briefs in the Affordable Care Act case in the Fifth Circuit, our colleague Nate Robson reports. [NLJ]

• How Supreme Court Justice Sandra Day O'Connor Helped Preserve Abortion Rights. “The story of how the first female Justice, Sandra Day O'Connor, dealt with abortion law reveals much about why this issue is so difficult, and why we may be headed back to the age of proverbial back alleys,” Evan Thomas writes. [The New Yorker]

• How 12 Court Cases Could Challenge Abortion Access Under Roe v. Wade. “Here are some of the lawsuits that could upend U.S. abortion rights if the high court chooses to hear them.” [Politico]

• Supreme Court Rebuffs Anti-Abortion Activists in Planned Parenthood Suit. “The U.S. Supreme Court on Monday rejected a bid by anti-abortion activists to narrow a Planned Parenthood lawsuit accusing them of illegally recording video of abortion providers to try to falsely show the illicit sale of aborted fetal tissue for profit.” [Reuters]

• Gorsuch's 'Troubling Dicta' in Death Case Draws Sotomayor Rebuke. Justices Neil Gorsuch and Sonia Sotomayor faced off this week in a Missouri death row case, where Gorsuch declared: “Last-minute stays should be the extreme exception, not the norm.” Sotomayor took issue with the statement, “which could be read to intimate that late-occurring stay requests from capital prisoners should be reviewed with an especially jaundiced eye.” [NLJ]

• Chief Justice Roberts's Delicate Seat at the Center of a Divided Supreme Court. “The Supreme Court sits at the epicenter of fundamental disagreements about various crucial issues — campaign finance, affirmative action, abortion, gun control, voting rights and the constitutionality of some of President Trump's most controversial actions—and the stakes are as high as they have ever been. At the center of it all is conservative Chief Justice John G. Roberts Jr.,” writes Chicago law professor Geoffrey Stone. [The Washington Post]

• Five Things to Know About Justice Kavanaugh and FERC. “With the possibility of FERC Supreme Court litigation on the horizon, an examination of Kavanaugh's FERC jurisprudence is instructive, especially when combined with a review of his legal scholarship,” write Norman Bay, a partner at Willkie Farr & Gallagher and former chairman of the Federal Energy Regulatory Commission, and Thomas Millar, an associate in the firm's Washington, D.C. office. [Corporate Counsel]

• SCOTUS Inaction in Zappos Case Continues Circuit Split Over Breach 'Damages.' ”The U.S. Supreme Court declined to settle a circuit split concerning if actual and immediate damages are needed to adequately allege an injury from a data breach, leaving some jurisdictions hotspots for data breach class action filings because of a lower threshold for standing.” [Law.com]