The justices on Monday continued their walk to the term's end by issuing three decisions—but no new grants for next term. Still, there were some surprises. We look behind the scenes of one: Justice Ginsburg's assignment of the pro-consumer Apple antitrust majority opinion to Justice Brett Kavanaugh. Plus: Fane Lozman, the houseboat warrior, is back in the high court with an argument about the Rooker-Feldman doctrine. And retired Justice John Paul Stevens still has lots to say about the court's landmark Second Amendment decision. Contact us at [email protected] and [email protected], and follow us on Twitter at @Tonymauro and @MarciaCoyle.

 

 

Why Did Ginsburg Pick Kavanaugh to Lead Rare Liberal Majority?

On Monday, Justice Ruth Bader Ginsburg had one of her rare opportunities as the senior associate justice in the majority—and the chief justice in dissent—to assign the court's majority opinion.

To the surprise of some court watchers, she chose Justice Brett Kavanaugh, the only conservative justice in the majority in the 5-4 decision in the antitrust case Apple v. Pepper. The ruling, reviving consumer claims, went against Apple.

A number of law review articles have been written over the years about Supreme Court opinion assignments. Whether it is the chief justice or the senior associate justice in the majority making the assignment, not surprisingly, the rationales for assignments don't differ.

In a 2006 law review article, Paul Wahlbeck of George Washington University examined the strategies behind assignments in the Rehnquist Court from the 1986 term through the 1993 term. Despite the passage of time, those strategies likely remain relevant.

Wahlbeck found that strategic opinion assignment often is used to guide the court to an outcome closest to the assignor's preference; to maintain fragile conference majorities; to complete work on cases in a timely manner, and to ensure equal distribution of cases among the justices.

What about Ginsburg's assignment to Kavanaugh? It may well have been to hold him in one of the liberal justices' rare majorities and, at the same time, to make a good will gesture in a high-profile case that could pay future dividends.

But the assignment wasn't so surprising to some antitrust scholars, such as George Hay of Cornell Law School. Kavanaugh's decision, he said, is “fully consistent” with the views he expressed when he sat on the D.C. Circuit in the Anthem-Cigna merger appeal: Antitrust laws are aimed at promoting the welfare of consumers.

So while much of majority and dissenting opinions is devoted to parsing the Illinois Brick precedent and the direct purchaser rule, Hay said, “the hook for the majority is that the transactions in question are between Apple and the consumer; therefore the consumer should be allowed to sue Apple.”

 

 

Florida Gadfly Fane Lozman Returns to SCOTUS With an Amicus Brief

Remember Fane Lozman, the Florida houseboat owner whose run-ins with local government officials evolved into two winning U.S. Supreme Court decisions—one in a 2013 maritime case and another last year that invoked the First Amendment?

Lozman (pictured above) is back, this time filing an amicus curiae brief in a case that propels him into what would seem like uncharted waters, so to speak: parsing the Supreme Court's hoary Rooker-Feldman doctrine, which states that federal district courts generally may not hear cases seeking review of judgments issued by state courts.

How did Lozman, who is not a lawyer, get involved in such a dense, non-flashy case?

In an interview, Lozman said that almost as a hobby, he routinely reads decisions of the U.S. Court of Appeals for the Eleventh Circuit in search of cert-worthy cases. The Eleventh Circuit's unpublished decision in January in Thurman v. Judicial Correction Services Inc. caught his attention right away, because Lozman's own Rooker-Feldman Eleventh Circuit case from 2013 was mentioned in the second paragraph.

In the Thurman case, two Alabama residents who were fined for traffic violations challenged probation orders that were issued by Judicial Correction Services, a private contractor. Both the federal district court and the Eleventh Circuit ruled that federal courts had no jurisdiction to decide the case because of Rooker-Feldman. Lozman's Eleventh Circuit decision went the opposite way, creating what Lozman saw as a circuit split of sorts.

From there, Lozman mentioned the Thurman case to Georgetown University Law Center professor Shon Hopwood, who connected Lozman to Greg Lipper, partner at Clinton & Peed in Washington. Lipper took on the Thurman case with an assist, suggested by Lozman, from Kerri Barsh of Greenberg Traurig in Miami, who was one of Lozman's lawyer in his Supreme Court cases.

As for the amicus brief, Lipper introduced Lozman to fellow #AppellateTwitter stalwart Jason Steed, counsel at Kilpatrick Townsend & Stockton in Dallas.

Steed wrote the amicus brief for Lozman, telling the justices, “Lozman now writes as amicus curiae to remind the court about his case and to underscore the importance of clarifying the Rooker-Feldman doctrine to prevent the dismissal of otherwise meritorious cases involving important constitutional or statutory rights.”

Steed said of Lozman, “Given his activism and awareness of cert-worthy issues, I'm sure this won't be the last brief we see with his name on it.”

 

 

SCOTUS Headlines: What We're Reading

>> The Supreme Court's Worst Decision of My Tenure. “District of Columbia v. Heller, which recognized an individual right to possess a firearm under the Constitution, is unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench,” the 99-year-old justice writes. [The Atlantic] Check out interviews with Stevens at NPR, The Washington Post and The Wall Street Journal.

>> Breyer Denounces Ruling That Strikes Precedent, Questions Which Cases Are Next. U.S. Supreme Court Justice Stephen Breyer on Monday warned that his colleagues may be poised to overturn court precedents in upcoming cases in ways that will sow “increased uncertainty” about the court's consistency. Justice Clarence Thomas asserted that stare decisis, the doctrine that favors preserving precedents, is “not an inexorable command.” [NLJ]

>> Justices' Feud Over Death Penalty Flares, Exposing Tension and Private Deliberations. “Two extraordinary death row opinions—one belatedly issued six weeks after the U.S. Supreme Court granted the inmate a stay of execution—opened new windows Monday into the private, often tense and conflicting deliberations among the justices.” [NLJ]

>> Watching for the Supreme Court to Set the Terms for the Eventual Roe v. Wade Showdown. “Rapid and dramatic moves by states to ban abortion at six weeks of pregnancy appear to set up an immediate fight over Roe v. Wade. But such direct challenges to the 1973 milestone are years from any Supreme Court hearing, and advocates on both sides are more urgently strategizing over the pending cases that would establish the terms for the eventual showdown. Their target is Chief Justice John Roberts.” [CNN]

 >> 'Race to the Bottom': Paul Clement Questions DOJ's Anti-Obamacare Stance. Kirkland & Ellis partner Paul Clementraises questions about the Justice Department's refusal to defend the Affordable Care Act. “The Justice Department should have stayed with its traditional policy of defending acts of Congress even though they're quite unpopular politically with the administration that's in place at that point,” he said. [NLJ]

>> Mystery Delays Push Divisive Supreme Court Issues Into Election Year. The DACA case “has become one of the many mysteries in a Supreme Court term that so far is defined less by the issues the justices have decided than by those they've deferred. The court has also put off taking action in cases involving abortion, same-sex wedding cakes and transgender bathroom access.” [Bloomberg]

>> Indiana Law Prof Ian Samuel Resigns After Misconduct Probe. Ian Samuel, an Indiana University Maurer School of Law associate professor whose career was halted by a Title IX misconduct investigation last December, announced last week he has resigned from his position. Samuel, a former law clerk to the late Supreme Court Justice Antonin Scalia, was co-host of First Mondays, a now-defunct popular podcast about the high court. [NLJ]

>> False Claims Landscape Could Change After Decision Drops. “Defense attorneys are bracing for a Supreme Court ruling they resoundingly believe will give whistleblowers more time to act on behalf of the government and sue companies for allegedly defrauding federal programs. The decision, due by the end of June, could lead to a swell in false claims cases, drive up settlement costs for companies accused of fraud, and encourage the government to ask for more cases to be dismissed, attorneys said in interviews. Others say it won't have much of an impact at all.” [Bloomberg Law]