The Supreme Court is making progress, slow and steady, on finishing its work for the term, with major decisions yet to be handed down. In the meantime, here's a look at Justice Brett Kavanaugh's participation in a three-mile run in May with four eclectic team members. And then, excerpts from a must-read law review article that looks at how the digital age has opened up new and possibly troublesome pathways to influence justices and their clerks in the court's decision-making. 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!

Kavanaugh Runs With the Supreme Court Pack

For years, as a judge on the U.S. Court of Appeals for the D.C. Circuit, Brett Kavanaugh led a team of runners who participated in a three-mile run to benefit Junior Achievement USA. His five-member team name was D.C. Circuitry.

Kavanaugh continued the tradition in May in the Capital Challenge race, sponsored by the American Council of Life Insurers, which draws hundreds of political figures, executive and judicial branch personnel, and journalists. His predecessor Anthony Kennedy ran the race in 1990, the only other justice to do so.

Kavanaugh's team has a new name, befitting his new position as a U.S. Supreme Court justice: Running Circuit, a twist on riding circuit, which justices did long ago.

His new team also reflects his new cohort of his Supreme Court colleagues. And the photograph (above) of Kavanaugh and his varied teammates could stand as evidence of how quickly Kavanaugh has acclimated himself to the Supreme Court, with his tumultuous confirmation hearing late last year almost a distant memory.

From left to right, with Kavanaugh in the middle: Nick Posada, a marshal's aide team leader at the court (who also happened to come in first in the race); William Havemann, a clerk to Justice Stephen Breyer; Michael Skocpol, who is clerking for Justice Sonia Sotomayor; and Kathryn Mizelle, a Justice Clarence Thomas clerk. None of the clerks on his team worked for Kavanaugh when he was a circuit judge, so it was not a group of old friends who ran with the justice.

Other judges presided over imaginatively named teams as well: Learned Feet headed by Federal Circuit Judge Raymond Chen; Bet Chutkan't Catch Us(U.S. District Judge Tanya Chutkan); The Bench Warmers (D.C. Circuit Judge Cornelia Pillard); and The Justice League (D.C. Court of Appeals Judge Catharine Easterly).

But those names pale in comparison to one of the executive branch teams: Argumentative Bastards, led by U.S. Solicitor General Noel Francisco. In his team photo, Francisco is in the middle, with an apparent race official to his left.

The others, from left to right, are assistants to the solicitor general: Elizabeth Prelogar, previously detailed to Robert Mueller's special counsel team; Eric Feigin; Jonathan Ellis, and Zachary Tripp.

Crowdsourcing the Supreme Court

We mentioned briefly last week an important law review article by Stanford Law School professor Jeffrey Fisher and professor Allison Orr Larsen of William & Mary Law School titled “Virtual Briefing at the Supreme Court.”

It's a thought-provoking exploration of how the digital age has created new ways to influence the Supreme Court in its decision-making. Last-minute blog posts, podcasts and Twitter threads, among other media, can advance arguments that weren't fleshed out or countered in traditional briefs—but still may be absorbed by justices, and definitely by their social media-savvy law clerks.

The authors determined that at least 25 law clerks from the current and last term have active Twitter accounts.

In an interview, Fisher (at left) said the idea for the article came from his own advocacy before the Supreme Court, where “sometimes I've been irked by commentary or statements that I worried might influence the Court, or that I otherwise wished I could respond to but didn't feel comfortable doing so in the role of advocate.” Fisher added, “At the same time … I have a lot of sympathy for the free speech and openness interests that online commentary can foster.”

Some excerpts from the article which, Fisher and Larsen stress, is a draft that could evolve as comments come in from those who like or dislike the thesis:

>> “Virtual briefing is a way to argue to the justices and their law clerks about the disputes they are evaluating in real time. It is also a method open to nearly everyone, without required fact-checkers or the same journalistic or other professional reputation interests. Put simply, Supreme Court arguments are being crowdsourced now.”

>> “No longer must a litigant or other individual seeking to influence the court reach out months or years in advance to would-be authors, much less depend on the slow-churning wheels of academic publishing. Now such persons can generate blog posts and the like within days—and can pinpoint their issuances to exactly the time at which they have the maximum chance of being read inside the court.

>> “Perhaps the best response to the phenomenon of virtual briefing is to do nothing at all. The First Amendment looms large over this debate.”

>> “Given the obstacles with restricting the producers of virtual briefing, perhaps the smarter solution is to regulate the consumption of virtual briefing. In other words, perhaps the Court could institute an internal restriction barring law clerks (and themselves?) from reading posts on the internet about a case while it's pending?”

Supreme Court Headlines

•   A Mayer Brown Supreme Court Duo Leaps to McDermott. Michael Kimberly and Paul Hughes first met 13 years ago at the Yale Law School Supreme Court Advocacy clinic. They were hired by Mayer Brown on the same day in 2009 and became partners at the firm in 2015. Today, they are jumping together to join McDermott Will & Emery. It's a blow for Mayer Brown and a coup for McDermott as it grows a Supreme Court and appellate practice with two young up-and-comers. [NLJ]

•   Fight Over Trump's Trade Tariffs Lands at the U.S. Supreme Court. The justices this month will take their first look at a petitionin which the American Institute for International Steel contends that the trade provision that Trump used last year to impose “national security” steel and aluminum tariffs is an unconstitutional delegation of Congress' power to the president. [NLJ]  

• Justices Just Made It Harder for Employers to Dismiss Job Bias Lawsuits. Justice Ruth Bader Ginsburg, in an 11-page opinion, rejected arguments by Texas' Fort Bend County that the charge-filing precondition under Title VII of the Civil Rights Act of 1964 was a jurisdictional requirement that goes to a court's authority to hear a suit and that can be raised at any stage of a proceeding. [NLJ]  

• Ruth Bader Ginsburg Speaks Out With Eye Towards Future of Roe v. Wade. “Ruth Bader Ginsburg warned on Tuesday about a threat to abortion rights and demonstrated that she is not going quietly on any abortion-related compromise. Ginsburg, in fact, has shown in recent weeks that she is not going quietly on much.” [CNN]  

• Supreme Court Scholars' New Paper Sparks Debate Over Influence of Blogs, Podcasts. “The paper, slated for publication in a forthcoming Cornell Law Review, examines what [Jeffrey] Fisher and [Allison] Larsen call the 'open secret' that old-school briefs are no longer the only form of Supreme Court advocacy.” [Reuters]  

• The Last Time the Supreme Court Was Invited to Overturn Roe v. Wade, a Surprising Majority Was Unwilling. “A look back at what happened exactly 27 years ago next week provides a moment of pause for both sides of the abortion fight, as well as for President Trump, who made the campaign pledge that overturning Roe 'will happen automatically in my opinion because I am putting pro-life justices on the court.'” [The Washington Post]  

• Clarence Thomas Knows Nothing of My Work. “I don't want to appear ungrateful: It's an honor to be relied on by the highest court in the land, and these days, non-fiction authors appreciate just being read at all. But Thomas used the history of eugenics misleadingly, and in ways that could dangerously distort the debate over abortion,” Adam Cohen writes. [The Atlantic]  

• Justice Department Targets Nationwide Injunctions Trump Blasted. One legal scholar says she believes the rise in nationwide injunctions during the Trump era corresponds to an increase in executive power. [Bloomberg Law]  

• How a Trump-Appointed Judge's Recusal Sped Up Indiana's Anti-Abortion Challenge. The recusal of Trump-appointed appellate judge and former Skadden Arps partner Michael Scudder in an Indiana abortion law challenge indirectly propelled to the U.S. Supreme Court the greatest recent threat to the landmark reproductive rights cases Roe v. Wade and Planned Parenthood v. Casey. [NLJ]  

• Former Solicitor General of Arizona Joins Valley Law Office. Dominc Draye, formerly solicitor general of Arizona, has joined Greenberg Traurig's office in Phoenix as a shareholder. Draye earlier was a Kirkland & Ellis litigator in the firm's Washington office. [Phoenix Business Journal]