The justices are back on the bench this morning to whittle away at the eight remaining undecided cases. It's unlikely that all eight would be released today so another day—possibly Thursday or Friday—will be needed. As we await some potential blockbusters, here are some thoughts by three top high court advocates on the business docket. Some new research looks at whether Justice Brett Kavanaugh thus far is the originalist he claims to be. And another “Katyal” gets attention in two justices' opinions. 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!

Waiting in the Wings; Newest Justices; Strange Bedfellows & More

By most measures, the Supreme Court has not decided many straight-up blockbuster business cases this term, though a number still remain to be decided—today, possibly. Tennessee Wine & Spirits Retailers Association v. Thomas is a dormant commerce clause case that could upset the alcohol industry. And Kisor v. Wilkie, one of a set of efforts to weaken the administrative state, looms large.

Last week, the Washington Legal Foundation hosted a panel of three top advocates to assess the business docket of the current term: Allyson Ho, partner at Gibson, Dunn & Crutcher; Carter Phillips, partner at Sidley Austin; and Nicole Saharsky (above), partner at Mayer Brown.

What follows are excerpts, edited for length and clarity:

>> Rock-ribbed originalists: “It's interesting to see where the court's most rock-ribbed originalists, Justices Thomas and Gorsuch, have landed in various cases this term, particularly in the business docket, because their originalist approach does not always lead to the result or outcome that the business community might favor. I think one of those areas is the area of preemption.” —Ho

>> Strange bedfellows: “As those of you who follow the court's business docket know, you can often end up with some odd lineups or strange bedfellows. You can pick your metaphor, and so far this term is no exception.” —Ho

>> Emboldened Supreme Court bar: “I cannot remember a situation in the past where the court specifically granted cert to decide whether or not to overrule a prior opinion of the court. That happened in four specific instances in this term … Is that because the more specialized Supreme Court bar has simply become emboldened over time? Or is it that the justices have in fact sent out these signals?” —Phillips

>> No big-ticket cases: “Even though the court obviously has focused on some business issues, there were hardly any big tickets. There were no 10-b5 securities cases. There was one antitrust standing case, and no big punitive damages cases. The court in fact hasn't taken interest in punitive damages cases now for at least a decade. And while they're nibbling at the margins of class action legation in general, it seems to me hard to get too excited about the issues that they have decided.” —Phillips

>> Waiting in the wings: “I think a lot is waiting in the wings. There are the big Title VII cases, employment discrimination, that are teed up for next year about whether the prohibition on discrimination based on sex applies to sexual orientation and transgender status. Those will matter for business. They will matter to society, but they will matter for business, and those will be teed up pretty early in the term.” —Saharsky

>> The newest justices: “I think Justice Gorsuch has been incredibly interesting to watch, because I think he's charting his own path. We don't know exactly where that path is going to lead, but I think he's confident that he can be on it by himself. Justice Kavanaugh, I think, has stuck very close with the chief justice and with the majority. I don't think that surprises me. That's pretty close to his jurisprudence on the D.C. Circuit, and I don't think that this is a term where he would particularly want to make waves.” —Saharsky

Kavanaugh the Originalist?

Court scholars and others are keeping a close eye this term on the differences and similarities between the court's newest justices—Neil Gorsuch and Brett Kavanaugh.

Some already have noted Gorsuch's libertarian streak which, like his predecessor Justice Antonin Scalia—can move him to the liberal side of the bench in criminal cases.

That streak was on display Monday in United States v. Davis in which he led a 5-4 majority to invalidate the residual clause in the federal law authorizing heightened criminal penalties for using, carrying, or possessing a firearm in connection with any federal “crime of violence or drug trafficking crime.”

Gorsuch, joined by justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, struck the clause as unconstitutionally vague. Kavanaugh wrote the dissent, which was joined by Justices Clarence Thomas, Samuel Alito Jr. and, in large part, Chief Justice John Roberts Jr.

Another way to look at the two newest justices is their self-designation as originalists. Over at the SCOTUS OA blog, the blog authors—Tonja Jacobi of Northwestern University Pritzker School of Law and Matthew Sag of Loyola University of Chicago—offer research by Jacobi's student, Sydney Black, who used content analysis to examine Kavanaugh's claim.

>> Black's conclusion? ”What we know so far: Kavanaugh's claim to originalism not borne out.” Black suggests two ways that Kavanaugh could show his originalist focus: (1) agreement with the court's self-described originalists, Thomas and Gorsuch, and disagreement with the court's pragmatist, Breyer, demonstrated through voting or cross-referencing; 2) oral argument questioning focused on originalist concerns, such as textualism and historical meaning, and avoidance of pragmatic concerns, like practical consequences.

After analyzing Kavanaugh both ways, Black wrote: “Kavanaugh has shown a greater tendency to vote with the Court's non-originalist conservatives and moderate liberal pragmatist than with the originalists, even for cases ripe for originalist analysis.”

Another Katyal Before the Court

The justices are more than a little familiar with former acting solicitor general and now Hogan Lovells partner Neal Katyal, a regular high court advocate. But a different Katyal's arguments drew the attention of two justices this week in their separate opinions in the trademark decision Iancu v. Brunetti.

Justices Stephen Breyer and Sonia Sotomayor cited Neal Katyal's sister, Sonia Katyal (at left, courtesy photo), co-director of the University of California Berkeley School of Law's center for law and technology.

In the body of his opinion, Breyer pointed to Sonia Katyal's 2010 law review article, Trademark Intersectionality, for noting that trademark law is “indelibly rooted in content-based considerations.” Sotomayor cited the same work in a footnote to her opinion.

There's no sibling jealousy on her brother's end.

“Totally cool, she's amazing, a Berkeley law prof, and the nicest person imaginable,” Neal said. “It's quite a story—gay Indian law professor; taught me so so much.”

Supreme Court Headlines: What We're Reading

• How Goodwin Procter Landed SCOTUS Argument for Pro Se Prisoner. Goodwin Procter partner Brian Burgess in Washington was scanning the U.S. Supreme Court's online docket earlier this year when he spotted something unusual. Here's the backstory on the court's grant this week in Banister v. Smith. [NLJ]

• US Appeals Court Says Census Plaintiffs Can Explore New Evidence. The Fourth Circuit says Maryland plaintiffs can proceed on remand to present new evidence purporting to dispute the Trump administration's arguments that they had no discriminatory motive in adding a citizenship question. Meanwhile, DOJ wants the justices to rule already. [NLJ]

• Supreme Court to Hear Insurers' Obamacare Challenge. Private health insurers contend the U.S. government owes them billions of dollars in compensation under a program that incentivized partcipation in the Affordable Care Act exchanges. [NYT] Reuters has more here, and ThinkAdvisor covered the action here.

• Arnold & Porter Snags SCOTUS Veteran John Elwood From Vinson & Elkins. John Elwood (at left), a former law clerk to Justice Anthony Kennedy and an alum of the U.S. solicitor general's office, will head Arnold & Porter's appellate and Supreme Court practice, continuing a “musical chairs” shuffle at the top echelons of the Supreme Court bar. Elwood said he decided to join Arnold & Porter in part because it is “a much bigger platform” that emphasizes litigation. Another attraction, Elwood said, was that two of his Vinson & Elkins colleagues, Craig Margolis and Tirzah Lollar, moved to Arnold & Porter recently. [NLJ]

• John Roberts and His Mixed Record on the First Amendment. The “most aggressive defender” of the First Amendment? “While that assertion may have merit in some areas of speech—particularly as Roberts has voted to lift campaign-finance regulations based on the First Amendment—an opposite pattern has developed in the final weeks of the current term. The trend offers a reminder of how the circumstances of a dispute can scramble expectations, those held by the public or even a justice.” [CNN]

• Shoe Icon Seeks Supreme Court Ruling on N.Y. Taxes. Two new petitions at the Supreme Court, both filed by Kannon Shanmugam at Paul, Weiss, Rifkind, Wharton & Garrison, challenge New York “aggressive double-taxation scheme.” [Bloomberg Tax] Read the petitions here and here.

• Burford Sells $100M Stake in Argentine Oil Case After SCOTUS Nixes Appeal. “Third-party litigation funder Burford Capital took advantage of favorable news from the U.S. Supreme Court on Monday to announce the sale of a 10% share in one of its investments for $100 million.” [The American Lawyer]

• 'Immoral' Trademarks Like 'FUCT' Are Allowed, Divided US Supreme Court Says. “There are a great many immoral and scandalous ideas in the world (even more than there are swearwords), and the Lanham Act covers them all. It therefore violates the First Amendment,” Justice Elena Kagan wrote for the 6-3 majority. [NLJ]