Good Wednesday morning—and welcome to Supreme Court Brief. Tuesday brought a host of opinions and orders, and we note some of the developments below. The justices granted one new case—a fresh look at a cross-border shooting. Plus: we've highlighted some of the Supreme Court connections in the House subpoena spat in the D.C. Circuit involving Trump's longtime accounting firm, and did you see what U.S. Attorney General William Barr said about the Supreme Court's inaction on DACA? 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!

 

 

SCOTUS Connections in Trump Subpoena Case

When lawyers go before the U.S. Court of Appeals for the D.C. Circuit July 12 to argue over a congressional subpoena for financial records from President Donald Trump's longtime accounting firm, a lot of faces will be familiar to each other.

It's the Washington version of “it's a small world,” and not exactly rare. But here are some connections that will be made when Judges Neomi Rao (above), Patricia Millett and David Tatel preside over the hearing on Trump v. Mazas USA.

 >> Rao clerked for Justice Clarence Thomas as did William Consovoy (at left), who is likely to argue on behalf of Trump. Rao worked for the justice in 2001 and 2002, and Consovoy, partner at Consovoy McCarthy, clerked for him in 2008-2009. One of Consovoy's law partners, Patrick Strawbridge, who clerked for Thomas with Consovoy, argued unsuccessfully in New York federal court last week against a House demand for Trump-related information from Deutsche Bank and Capital One. That case is now pending in the Second Circuit.

>> In addition, Consovoy is an adjunct professor at Scalia Law School, where Rao was also on the faculty. Consovoy heads the Scalia Law School Supreme Court clinic.

>> Millett worked at the Justice Department's Civil Division appellate staff from 1992 to 1996. Douglas Letter, who likely will argue on behalf of the House committee that sought the documents, was director of that appellate staff from 2012 to 2018. Letter has argued before the Supreme Court twice, while Millett argued 32 times.

 

 

Vladeck Gets New Chance in Cross-Border Case

The Supreme Court said it will hear for the second time—next term—a case likely to be especially fraught politically during an election year: the cross-border shooting of a Mexican teenager by a Border Patrol officer. The justices this time around will see a new face at the podium on behalf of the teen's family.

Stephen Vladeck of the University of Texas School of Law will make his second high court argument on an issue he said is “near and dear” to him: so-called Bivens civil rights actions for damages. The Bivens claim stems from the justices' 1971 decision in Bivens v. Six Unknown Named Agents.

Vladeck's case—Hernandez v. Mesa—asks the justices whether federal courts can recognize a Bivens claim when plaintiffs “plausibly allege that a rogue federal law enforcement officer violated clearly established Fourth and Fifth Amendment rights for which there is no alternative legal remedy.”

In 2017, the high court, in a per curiam opinion, sent the case back to the U.S. Court of Appeals for the Fifth Circuit to consider the justices' ruling that term in Ziglar v. Abbasi. In that case, eight undocumented men, part of a group of more than 700 immigrants who were arrested and detained under a “hold-until-cleared” policy after the Sept. 11 attacks, unsuccessfully sought a Bivens remedy against former Attorney General John Ashcroft and other officials for brutal, unconstitutional conditions in their detention.

Vladeck worked on the first Hernandez case but Deepak Gupta of Gupta Wessler was counsel of record and Robert Hilliard of Hilliard & Shadowen in Austin, Texaas, argued for the Hernandez family.

“I think Bivens is largely misunderstood by those who haven't immersed themselves in the historical background,” said Vladeck, who's written a number of articles about Bivens.

Much of his academic research centers on improving government accountability mechanisms, he said. “Bivens is often unfortunately caricatured or not given enough pride of place it should play in promoting government accountability,” Vladeck added.

The justices made clear in the Abassi decision that extending Bivens to new contexts should be rare.

“I think any Bivens case is unfortunately an uphill battle,” said Vladeck. “We have some pretty good arguments that lines drawn by the court in Abassi are in our favor, but it's a different court than the one that decided Abassi. Hopefully we can find out if the court meant what it said in Abassi about the importance of preserving these kinds of claims when individual law enforcement overreach is the issue.”

Vladeck's first argument in any court was last year in the Supreme Court in the case Dalmazzi v. United States, a challenge to dual office-holding in the military. The court dismissed the writ as improvidently granted.

 

 

William Barr Asks: Where Is DACA Decision?

U.S. Attorney General William Barr, like his predecessor Jeff Sessions, is making a fuss about nationwide injunctions. The Trump-era Justice Department has been on the losing side of many of these rulings, especially in the immigration arena, and top leaders are quick to air their grievances.

The Supreme Court had a chance last term—in the travel-ban case Trump v. Hawaii—to give its guidance. But the justices passed up the opportunity. Justice Clarence Thomas, writing separately in that case, called nationwide injunctions “historically dubious.”

Speaking last week in Washington, Barr expressed frustration that the Supreme Court has not yet announced any order on the nationwide injunction that is blocking the Trump administration from rescinding the Obama-era program Deferred Action on Childhood Arrivals, better known by its acronym DACA.

Barr said in his prepared remarks:

“We are more than halfway through the president's term, and the Administration has not been able to rescind the signature immigration initiative of the last Administration, even though it rests entirely on executive discretion. The Justice Department has tried for more than a year to get the Supreme Court to review the lower-court decisions ordering us to keep DACA in place. But the court has not granted any of those requests, and they languish on its Conference docket. Unless the court acts quickly and decisively, we are unlikely to see a decision before mid-2020 at the earliest­—that is, right before the next presidential election. It is hard to imagine a clearer example of the stakes of nationwide injunctions.”

Barr also argued that nationwide injunctions have “injected the courts into the political process”—interrupting legislative discussion about measures that might protect DACA recipients, widely called Dreamers. “Dreamers remain in limbo, the political process has been pre-empted, and we have had over a year of bitter political division that included a government shutdown of unprecedented length,” Barr said.

Several months ago, we looked at some of the reasons the court might be holding onto its DACA decision. One of those factors: disputes over DACA are playing out in federal appeals courts, perhaps giving the Supreme Court some pause to act quickly. On May 17, the U.S. Court of Appeals for the Fourth Circuit issued a ruling against the Trump administration. The D.C. Circuit heard arguments in February but has not yet ruled on the case.

The Justice Department's new cert petition in the Fourth Circuit case—DHS v. Casa De Maryland—quoted Barr's argument that the injunctions have interfered with the political process. “The very existence of this pending litigation (and lingering uncertainty) continues to impede efforts to enact legislation addressing the legitimate policy concerns underlying the DACA policy,” Francisco wrote in the petition.

 

 

Supreme Court Headlines: What We're Reading

• Dori Bernstein Will Depart as Georgetown Law's Supreme Court Institute Director. Bernstein (above) said she will continue at Georgetown teaching a clerkship practicum for law students and taking on other activities, but she is leaving her institute role to spend more time with her aging parents in Connecticut. Georgetown is seeking applicants for a new director. [NLJ] Check out Bernstein's 2017 piece at the American Bar Association about how to construct an effective moot court.

• Reed Smith Partner's Widow Loses Supreme Court Appeal in Suicide Case. The U.S. Supreme Court on Tuesday denied certiorari review in a high-profile case involving the suicide of a Reed Smith partner in 2010, an outcome that favors GlaxoSmithKline, the pharmaceutical company whose antidepressant drug was targeted as a cause of his death. [NLJ]

 • Justice Thomas, Recruiting Liberal Wing, Leads Pro-Consumer Ruling Against Home Depot. With Justice Clarence Thomas taking the lead, the U.S. Supreme Court on Tuesday made it more difficult for class action defendants to transfer their cases from plaintiff-friendly state courts to more business-friendly federal courts. The rare pro-consumer ruling in a class action was even more unusual because of the uncommon allies who joined Thomas: liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. That lineup had not taken place in a 5-4 ruling since 2014. [NLJ]

• Supreme Court Rules Against Alaska Man Who Argued Police Retaliated Against Him for Exercising Free Speech. “Russell Bartlett's 2014 arrest at the Arctic Man festival followed his alleged interference in an underage drinking investigation.” [The Washington Post]

• Justices Issue Split Ruling in Indiana Abortion Case, Blocking One Part of State Law. The U.S. Supreme Court on Tuesday upheld Indiana's law imposing new requirements on the disposal of aborted or miscarried fetal remains, but the justices left in place the invalidation of restrictions on the ability of women to terminate previability abortions. [NLJ]

• 2 Supreme Court Rulings Played Key Role in Subpoena Order Against Trump. U.S. District Judge Amit Mehta's decision in Trump v. Committee on Oversight and Reform of the U.S. House of Representatives showed the continuing power of the high court's 1957 ruling in Watkins v. United States and its 1927 unanimous opinion in McGrain v. Daugherty. [NLJ]

• Fearing Supreme Court Loss, New York Tries to Make Gun Case Vanish. “In January, the court agreed to hear a Second Amendment challenge to a New York City gun regulation. The city, fearing a loss that would endanger gun control laws across the nation, responded by moving to change the regulation. The idea was to make the case moot. The move required seeking comments from the public, in writing and at the hearing. Gun rights advocates were not happy.” [NYT]

• U.S. Supreme Court Blocks Redrawing of Ohio, Michigan Electoral Maps. “The lower courts found that the electoral maps had been drawn to entrench the majority party in power, a practice known as partisan gerrymandering, in violation of the U.S. Constitution.” [Reuters] Politico has more here.