With the high court now on its summer break, we take a peek at next term, when another Hogan Lovells associate will be at the justices' lectern. And we look back at an opinion by Justice Clarence Thomas that suggests a podcast may have influenced the court's recent death penalty decision, Flowers v. Mississippi. Plus: the summer break might not be much of a break, as the Justice Department is expected to take Trump-related decisions to the court. Feedback and tips are welcome: Thanks for reading! Contact us at [email protected] and [email protected], and follow us on Twitter at @Tonymauro and @MarciaCoyle.

Opening High Court Doors to Associates

When Mitchell Reich faces the justices in a bankruptcy-tax related case next term, he will become the fourth Hogan Lovells associate in five years to argue his first case at the U.S. Supreme Court.

In recent years, a number of first-time advocates from Big Law firms with established Supreme Court and appellate practices have appeared before the justices—marking the arrival of a new generation of high court practitioners. But many of those lawyers already were partners. Making way for associates at the podium is still rare.

In the term just ended, at least two other associates got the nod from their firms for appearances in the high court:

Franklin Taylor Rouse, an associate at Conchin, Cloud & Cole in Huntsville, Alabama, won his first case, Thacker v. Tennessee Valley Authority. Jonathan Herstoff, an associate in the New York office of Haug Partners made his second Supreme Court argument in Nutraceutical Corp. v. Lambert. Herstoff had his first argument in 2017 in Hamer v. Neighborhood Housing Services of Chicago. He won both cases.

Reich, who clerked for Justice Elena Kagan, said he was “wooed over to Hogan” by his fellow clerks who encouraged him to give the firm a close look. A major selling point was the firm wanted to give their young attorneys appellate arguments. The driving force behind that effort, he said, is Neal Katyal, the co-leader of the firm's Supreme Court practice and a former Obama-era acting U.S. solicitor general.

“We want our associates in court arguing as much as possible, not just because it helps with the way they write briefs—knowing what being grilled about a sentence in a brief is like—but also because our goal has always been to be the breeding grounds for the best appellate lawyers in the nation,” Katyal said.

Several other current or former Hogan Lovells attorneys made their debut arguments as associates in recent years. Colleen Roh Sinzdak, another former Roberts clerk, argued but lost the Title VII case Fort Bend County, Texas v. Davis in the term that just ended. She became a Hogan partner this year.

Dominic Perella argued and won the case Comptroller of the Currency of Maryland v. Wynne in 2014, a dormant commerce clause challenge to Maryland's tax scheme. Perella is now general counsel and chief compliance officer to Snap Inc.

Frederick Liu, a former clerk to Chief Justice John Roberts Jr., argued but lost the capital case Kansas v. Carr in 2015. A Hogan Lovells associate from 2012 to 2016, Liu is now an assistant to the solicitor general. In an earlier interview, Liu credited Katyal and Catherine Stetson, co-leader of the Hogan Lovells appellate team, with going “to great lengths to get arguments for associates.”

Reich said he and Sinzdak “regularly troll” circuit court decisions looking for potential candidates for Supreme Court review. About six months ago, he said, the case he will argue in the new term “jumped out as a potentially good one” because the issue had split the circuit courts and involved high stakes.

Reich, 32 and the first openly gay president of Harvard Law Review, said arguing in the Supreme Court involves a similar skill set to arguing in the courts of appeals. “Having seen Neal and others in our appellate group do these arguments, it's a similar method, but with 10 times the preparation, just making sure you cover every possible corner of the case,” he said. —Marcia Coyle

Thomas, Media & SCOTUS Death Penalty Vote

On June 30, American Public Media ran a full-page advertisement in The New York Times with the headline: “Facts are powerful. So are you.” It went on to say that its investigative team APM Reports uncovered “critical facts” in the case of Curtis Flowers, who won a reprieve from execution from the U.S. Supreme Court on June 21.

The ad was a rare statement connecting the investigative work of a news organization to a Supreme Court case—though the advertisement does not claim that its research caused his victory. APM's 16-episode In the Dark podcastdocumented racial bias in Mississippi jury selection and what it calls “compelling evidence” that Flowers was innocent of murdering four people in a furniture store in 1996.

Justice Clarence Thomas, in his 42-page dissent, took the unusual step of suggesting that the court's seven-justice majority may have been swayed by the intense media attention to Flowers's case, though he did not mention the podcast by name: “The court's action only encourages the litigation and relitigation of criminal trials in the media, to the potential detriment of all parties—including defendants. The media often seeks 'to titillate rather than to educate and inform.'”

Thomas added: “Media attention can produce other dangers, too, including discouraging reluctant witnesses from testifying and encouraging eager witnesses, prosecutors, defense counsel, and even judges to perform for the audience.”

Thomas was joined in that part of his dissent only by Justice Neil Gorsuch, but his criticism of media scrutiny may be an admonition to his colleagues that they should not pay attention to news reports.

Asked about Thomas's remarks, APM senior producer Sarah Freemark said, “I can't be sure exactly what Thomas was referring to, but we're certainly not in the business of titillation! I don't know if the justices listened to In The Dark, but if they did, I fail to see how a podcast could have undermined the fairness of this criminal trial. In fact, I think we accomplished the opposite, laying bare a troubling abuse of the legal system.” —Tony Mauro

A Not-So-Quiet Summer

The first of what could be several emergency applications for stays of federal court rulings this summer landed recently at the high court.

U.S. Solicitor General Noel Francisco filed an application with Justice Elena Kagan in which he asked the high court to block a June 28 order by a California federal district court barring the Trump administration from using $2.5 billion in Pentagon funds to build a wall along the U.S.-Mexico border.

Francisco seeks a stay pending the government's appeal to the Ninth Circuit or, if necessary, an appeal to the high court. He also asked for an immediate administrative stay while the justices review his application. Kagan, who is circuit justice for the Ninth Circuit, called for a response from the challengers by July 19.

Supreme Court advocate Stephen Vladeck of the University of Texas School of Law recently noted that the border wall application is the administration's 20th application for a stay of a lower court ruling in less than 2.5 years. He goes into greater detail in a forthcoming law review article on “The Solicitor General and the Shadow Docket.”

In the article's abstract, he wrote:

“During the first two and a half years of the Trump Administration, the Solicitor General has sought emergency or extraordinary relief from the Supreme Court with unprecedented frequency, applying for at least 20 stays of lower-court rulings; filing nine petitions for writs of certiorari before judgment; and seeking writs of mandamus directly against three different district judges. Over the prior 16 years, in contrast, the government had sought a total of eight stays from the Justices; four writs of certiorari before judgment; and zero writs of mandamus.”

Other issues percolating this summer that could come before the justices include potential rulings involving emoluments clauses, the Affordable Care Act and congressional subpoenastargeting President Trump's financial affairs. —Marcia Coyle

SCOTUS Headlines: What We're Reading

• Two SCOTUS Vets Denounce Roberts's Census Ruling as 'One-Off' and 'Bizarre'. Chief Justice John Roberts Jr.'s majority opinion in the census case has drawn sharp criticism from several veteran U.S. Supreme Court advocates, including a prominent conservative lawyer who predicted the “one-off” ruling against the Trump administration won't be taken seriously. Gibson Dunn's Miguel Estrada (above) called the ruling “bizarre.” [NLJ]

• Trump's Top SCOTUS Lawyers Post Winning Term, But Barely. “The federal government's top lawyers at the U.S. Supreme Court posted a better record than last term in cases in which it was a party—but it still barely passed the 50-50 mark. It's part of a decades-long slide, which may be explained by the emergence of a group of Supreme Court specialists to counter the government's legal team.” [Bloomberg Law]

• Pipeline for Female Supreme Court Advocates Shows Some Cracks. Only 17 percent of last term's cases were argued by women, a number that hasn't budged much from five years ago. [Bloomberg Law]

• Business Groups Urge Supreme Court to Wade into ADA Website Litigation Fray. “With plaintiffs' lawyers filing thousands of lawsuits a year against businesses with allegedly inaccessible internet operations, it's time for the U.S. Supreme Court to clarify whether and to what extent the ADA applies to online commerce.” [Reuters]

• The Clarence Thomas Effect. “The most significant part of Thomas's legacy, however, may take shape long after he has stopped writing opinions. Personnel is policy. Thomas's vast network, more than that of any other justice, has defined President Donald Trump's administration and the federal judiciary Trump has built. Through his clerks and mentees, the notoriously silent justice may end up with an outsize voice in the legal system for years to come.” [The Atlantic]

• John Roberts' Argument for Saving Obamacare Helping Power Legal Challenge. “The appeals court case … may also complicate the legacy of the chief justice, who has attempted to keep the Supreme Court out of politics but could soon face another presidential election-year health care dispute.” [CNN]