Welcome to Supreme Court Brief. It has been a remarkable week and Supreme Court term for David Frederick. Plus, we catch up with Frederick Schauer of the University of Virginia School of Law about a new paper looking at “stare decisis.” Scroll down for coverage of Chris Landau's confirmation hearing for US ambassador to Mexico, and links to a new PBS Frontline documentary on Supreme Court confirmation clashes. Feedback and tips are welcome: Contact us at [email protected] and [email protected], and follow us on Twitter at @Tonymauro and @MarciaCoyle. Thanks for reading!

David Frederick's Apple Bite Caps a Busy Term

It has been a remarkable week and Supreme Court term for David Frederick. On May 13, the Kellogg Hansen Todd Figel & Frederick partner (above) learned that the court handed down Apple v. Pepper, and he was on the winning side against Apple Inc. And then, on May 20, the court issued Merck Sharp & Dohme v. Albrecht, a more complicated decision that gave both Frederick and his adversary Jones Day partner Shay Dvoretsky something to cheer about.

On top of that, Frederick, 58, argued five cases in the current term—more than any other lawyer in private practice, best we can tell. (Following close behind were: Kannon Shanmugam who moved mid-term from Williams & Connolly to Paul, Weiss, Rifkind, Wharton & Garrison; Paul Clement of Kirkland & Ellis; and Daniel Geyser of Geyser P.C., each with four arguments this term.) Frederick has argued 55 high court arguments in his career.

In both of the rulings decided recently, Frederick was not in a position to sit at his desk and repeatedly click on the court's web site to see if his cases came down.

On the morning of May 13, Frederick was focusing his attention on prepping a witness for an upcoming trial, but he could see that his phone was “blowing up” with incoming calls, as he put it. But he did not answer any of them until he saw that New York lawyer Mark Rifkin of Wolf Haldenstein Adler Freeman & Herz was on the line.

Rifkin was the longtime lawyer for Robert Pepper and other iPhone owners who sued Apple Inc. for antitrust violations, so his phone call meant that the Supreme Court handed down the decision in Apple v. Pepper. Frederick had argued on Pepper's behalf in November, and Rifkin told him that morning it was a win.

As for the Merck case, Frederick was in Nashville when it came down, immersed in a trial that could, in a way, be viewed as his sixth Supreme Court argument of the term.

Frederick is representing Tennessee in Mississippi v. Tennessee, a Supreme Court original jurisdiction dispute in which Mississippi accuses its neighbor of stealing its groundwater. Frederick is in Nashville to participate in an evidentiary hearing in the case, presided over by special master and senior judge Eugene Siler of the U.S. Court of Appeals for the Sixth Circuit.

Before he left for Nashville, Frederick in an interview shrugged off the high number of cases he argued this term. In other years, some of the Supreme Court cases that came his way settled before argument, he said, “but no one settled this year.”

The cases Frederick argued weren't all bell ringers, but every one was a challenge. He represented the respondent in all five cases, and in four of the five he was hired to argue after cert was granted, which means he had to hit the ground running. “It was a steep learning curve,” Frederick said.

'Tissue-Thin' Stare Decisis in the Roberts Court

“Stare decisis,” the legal principle that pushes courts to adhere to past decisions, is “tissue thin” in the Supreme Court and is likely to remain that way into the future, which doesn't bode well for abortion precedents such as Roe v. Wade, according to one legal scholar.

Frederick Schauer of the University of Virginia School of Law is the author of “Stare Decisis: Rhetoric and Reality in the Supreme Court,” forthcoming in the University of Chicago Supreme Court Review.

“I not only think and write about stare decisis as a normative matter, I think it's a good thing,” he said in an interview. “In my ideal world, stare decisis would matter more than it does.”

Schauer, who has written about stare decisis for more than 30 years, said his latest article was spurred in particular by the “angry language” in last term's decisions in Janus v. AFSCME and South Dakota v. Wayfair—in which three precedents were overruled.

The stare decisis portion of the high court's 1992 Planned Parenthood v. Casey decision was not mentioned in those two decisions, Schauer said. That seems explainable, he said, by all of the justices' conclusion that “Planned Parenthood is at best a fragile precedent on the subject of precedent.”

With Justice Stephen Breyer's warnings in mind about endangered precedents in his dissenting opinion last week in Franchise Tax Board v. Hyatt, we asked Schauer for some additional thoughts, edited for length and clarity, on the topic.

>> Is the Roberts court any different in its treatment of stare decisis from past courts?

What we see more of now is this angry rhetoric about stare decisis and that seems to be increasing. When I see the anger of Justice [Elena] Kagan in Janus and Justice Breyer—these are not stupid people—and maybe, especially on the liberal side, they are trying to raise the rhetorical stakes to make it somewhat more difficult for justices on the other side.

>> Why should senators spend any time questioning Supreme Court nominees on their stare decisis views? If they utter generalities, that is not going to be constraining. On the other hand, it's likely to make a difference that [Justice Brett] Kavanaugh is at least on the record that he thinks Roe is settled law. It doesn't mean he isn't willing to narrow it as much as he possibly could. But saying it is settled law makes it a little bit harder for him to outright overrule it.

>> What's the downside to “tissue-thin” stare decisis?

It will become even more obvious—as it has since the Bork hearings—that ideological, social, moral, economic and political considerations are the greatest determinants of Supreme Court outcomes. What this will produce is even more nomination hearings that are just political theatre. >> What do you think this all means for Roe v. Wade?

I do think when you combine the extent to which [Chief Justice John] Roberts is probably himself somewhat of an incrementalist, with Kavanaugh being on record with his settled law statements and possibly with at least wanting to demonstrate his non-political bona fides, my prediction would be more chipping away than overruling.

SCOTUS Headlines: What We're Reading

• The Race to Overturn Roe v. Wade Looks to a Supreme Court That Prefers Gradual Change. “The race may be on among conservative states to pass restrictive abortion laws aimed at giving the Supreme Court the opportunity to overturn its landmark Roe v. Wade decision, but the justices are much more likely to take a gradual approach to the issue. The court in general—and Chief Justice John G. Roberts Jr. in particular—prefers a step-by-step process when shifting the court's jurisprudence, rather than disposing of an iconic landmark ruling in one grand gesture.” [The Washington Post] Read more here at The New York Times.

• The Justices Had 5 Votes to Overturn 'Roe' in 1992. Why That Didn't Happen. “Harry [Blackmun] and I both assumed that the result [in Casey] would be explained in an opinion overruling Roe v. Wade,” retired Justice John Paul Stevens wrote in his autobiography, published this week. [NLJ]

• Clarence Thomas Cooperating With Filmmakers for New Documentary. “Supreme Court Justice Clarence Thomas is cooperating with producers for a documentary expected to debut in 2020, nearly 30 years after his polarized confirmation hearings and amid recurring speculation over whether he is considering retirement. Manifold Productions, which interviewed Thomas extensively for the project, entitled 'Created Equal,' said its film 'will tell the Clarence Thomas story truly and fully, without cover-ups or distortions.'” [CNN] The Hollywood Reporter has more here.

• Quinn Emanuel's Landau Says Legal Career Qualifies Him for Ambassador to Mexico. Nominee Chris Landau, former clerk to Justices Clarence Thomas and the late Antonin Scalia, told senators that his 30 years of legal practice will be a plus and “has given me a profound respect for the rule of law, the importance of resolving disputes civilly, and the dignity of the individual. If confirmed, I'll bring these passions to my job in Mexico.” [NLJ] More reading: Inside Landau's financial disclosure.

• Justice Kennedy Urges 'Recovery' of Public Discourse. “'Civility has never been needed more than it is needed today,' Kennedy said while accepting the American Law Institute's Friendly Medal in honor of Second Circuit Judge Henry Friendly. Kennedy said it was his hope that the country will have 'recovered' from the current state of public discourse in the next few years.” [Bloomberg Law]

• New Documentary Examines Supreme Court Confirmations From Bork to Kavanaugh. The U.S. Supreme Court confirmation process and how it devolved into highly charged partisan battles is the focus of a new investigative documentary—”Supreme Revenge”—on PBS's Frontline program. [NLJ] PBS has more here: Inside the First 'All-Out War' Over a Supreme Court Nominee.

• Unusual Supreme Court Lineup Gives Merck a Win on Fosamax Litigation. “In a win for Big Pharma, the U.S. Supreme Court on Monday remanded a class of failure-to-warn tort claims against drug manufacturer Merck to the U.S. Court of Appeals for the Third Circuit for determination by judges, not juries.” [NLJ] Reuters has more here.

• Staring Down 'Stare Decisis': How to Ask SCOTUS to Overturn Precedent. Veteran advocate Paul Clement of Kirkland & Ellis recently offered his thoughts on efforts to unsettle settled law. “I think about asking the court to overrule one of its cases as a kind of 'break glass in case of emergency.' You shouldn't be afraid to do it, there are emergencies, but it should not be, as a general matter, your litigation strategy as a first resort.” [NLJ]

• Supreme Court Rejects Bid to Let Businesses Donate to Candidates. “The U.S. Supreme Court declined an opportunity to give businesses broader rights to contribute money to political candidates and causes.” [Bloomberg Law] CNN has more here.