Welcome to Supreme Court Brief! A lawyer who unsuccessfully defended same-sex marriage bans—John Bursch—will return to the high court lectern Oct. 8 to argue against Title VII workplace protections for transgender employees as part of the Alliance Defending Freedom legal team. Two amicus parties in the new term’s Second Amendment case hope the justices will listen to their corpus linguistics argument that the landmark Heller decision was wrong. And Hogan Lovells partner Cate Stetson tells new 1Ls not to “hyper-focus” on becoming appellate lawyers. Thanks for reading. Contact us at [email protected] and [email protected], and follow us on Twitter at @Tonymauro and @MarciaCoyle.

 

 

 

John Bursch Will Argue Against LGBT Workplace Protections

For the second time in four years, John Bursch (above) will find himself at the high court lectern in one of the justices’s most controversial cases. On Oct. 8, in R.G. and G.R. Harris Funeral Homes v. EEOC, Bursch will present his argument that Title VII does not prohibit discrimination against transgender workers.

In 2015, Bursch defended Michigan’s ban on same-sex marriages in the case Obergefell v. Hodges. In that case, a 5-4 majority struck down state bans on same-sex marriage.

Bursch, a former Michigan solicitor general, will make his 12th high court argument, not as he was in 2015—a partner in Grand Rapids’s Warner Norcross & Judd, which required him to handle the case independently so as not to offend colleagues and clients with opposite views. This time he will argue as senior counsel and vice president of appellate advocacy for Alliance Defending Freedom, the conservative legal organization that opposes homosexuality and abortion.

Between his 2015 same-sex marriage loss and his joining Alliance Defending Freedom in 2018, Bursch founded his own mainly appellate firm—Bursch Law— in Caledonia, Michigan. That same year, he won his 11th high court argument, Lee v. United States, an ineffective assistance of counsel case.

Although he has signed on with ADF, Bursch has continued his law firm practice. We asked him in 2018 about his ADF gig and he said: “I’ve long admired the folks I’ve gotten to know at ADF and I support their mission of trying to keep doors open for spread of the gospel. It gives me more time to work on religious liberty issues and opens up a lot more possibilities.”

The Equal Employment Opportunity Commission had opposed Bursch’s client in the lower courts. But the Trump administration’s Justice Department has sided with Bursch in the high court and likely will seek argument time. The EEOC, in a rare step, did not sign onto the government’s changed position.

That apparently leaves John Knight of the Chicago office of the ACLU Foundation to defend the lower court decision that Title VII does bar discrimination against or sex stereotyping of transgender employees. Knight represents Aimee Stephens, a Harris Homes funeral director who was fired after informing her employer that she intended to transition from male to female. Stephens intervened in the case when it was before the U.S. Court of Appeals for the Sixth Circuit.

A small bit of irony? Knight was a trial attorney at the EEOC before joining the ACLU. A graduate of the University of Chicago Law School, he directs litigation, primarily in states in the Midwest, challenging bias and discrimination against lesbian, gay, bisexual, and transgender people and people living with HIV.

 

 

‘Surprise Yourself’: Cate Stetson’s Advice to 1Ls

In a preview of her Aug. 19 welcome speech to the Class of 2022 at the University of Virginia School of Law—her alma mater—Hogan Lovells partner Cate Stetson(above), co-head of the firm’s Supreme Court and appellate practice group, offered some lessons and advice to the 1Ls: “Work hard. Be kind. Raise your hand. Learn people’s names—everyone’s names, including all the unsung people who make the Law School and the building run.”

Stetson cautioned the lawyers-in-the-making not to “hyper-focus too early” on any desire to become appellate litigators. “Read non-law stuff,” she said. “Read good everything, and develop your own voice, style and cadence. Legal writing requires you to work within particular structural frames—but you can be a lively, engaging and inventive writer within that frame.”

Her oral argument preparation, Stetson said, “involves reams of case law, loads of writing, a lot of pacing around and a cheeseburger the night before the argument.”

Stetson, who is representing pro bono Adnad Syed of “Serial” fame in a new Supreme Court petition filed this week, encouraged pro bono legal work. “Law school will gift each of you with an incredible and indelible skill: Knowing how to analyze, argue, persuade—and change—the law. You have an obligation to your fellow humans to use that gift for good.”

In a nutshell, Stetson said, her advice to the new law students: “Surprise yourself. Take care of each other.”

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‘Corpus Linguistics’ Arguments at SCOTUS

The odds are long for an amicus party seeking argument time in a Supreme Court case. They get even worse when the parties to the case refuse to give consent to divided arguments and the amicus must ask for extra time to be added. Neal Goldfarb, who is in that exact situation in the new term’s Second Amendment case, responds, “Well, nothing ventured, nothing gained.”

Goldfarb, author of the LAWnLingustics blog and a visiting scholar at Georgetown University Law Center, recently filed an amicus brief in New York State Rifle & Gun Association v. City of New York. That’s the major Second Amendment case that New York contends is moot, and the challengers, led by Paul Clement, argue is still a viable action.

Goldfarb is a proponent of corpus linguistics, which, he said “uses large databases of real world texts to investigate word meanings.” The research tool has been described as “Lexis on steroids” and is similar to what lexicographers do.

Goldfarb, in a motion for argument time, told the justices that over the past 14 months, “powerful evidence” has emerged that the landmark District of Columbia v. Heller was wrong in its interpretation of the Second Amendment. The evidence, he said, comes from two large electronic collections of founding-era texts designed specifically to conduct research into constitutional original meaning.

Goldfarb wants argument time to explain this new evidence and to be available to answer the justices’ questions. “You’ve got the Heller case, the most originalist decision the Supreme Court has ever done by common consensus, and you’ve got this technique which has been endorsed by a lot of originalists,” he said. “This method shows Heller got a lot of things wrong.”

Goldfarb’s brief is not the only corpus linguistic amicus brief in the gun case. Morrison & Foerster partner Brian Matsui filed an amicus brief on behalf of four professors and experts in linguistics, law and legal history.

“Using this new technology, corpus linguistics researchers have unearthed a wealth of new evidence over the past decade showing that the phrase ‘keep and bear arms’ overwhelmingly had a collective, militaristic meaning at the Founding,” Matsui wrote.

Neither amicus brief asks the justices to revisit their landmark Heller decision. Matsui’s clients urged the court to confine their review to the challenged New York City rules, if the case is not moot, and not expand their review to the issue of public carry of loaded firearms. Goldfarb asked the justices to dismiss the petition before re-examining Heller so scholars and others can examine and debate the corpus data.

Another corpus linguistic amicus brief was filed in the term’s consolidated Title VII cases that confront whether gay, lesbian and transgender employees are protected against workplace discrimination.

Allen & Overy partner Andrew Rhys Davies is counsel to two law professors and a professor of linguistics who tell the court: “Amici’s corpus-linguistics analysis shows that ‘sex’ did not have the limited meaning that the employers and some of the judges below ascribe to it” and “could have encompassed the contemporary conceptions of sexual orientation and transgender status.”

 

 

Supreme Court Headlines: What We’re Reading

• A New Push to Solve the Mystery of Low Numbers of Minority Law Clerks. “A new effort is underway to find the answer to a quandary that has long vexed the federal judiciary: why so few minorities serve as law clerks. California Supreme Court Justice Goodwin Liu (above), a former clerk to Supreme Court Justice Ruth Bader Ginsburg, has joined former judge and Federal Judicial Center director Jeremy Fogel, and the American Bar Foundation, to delve into the question and come up with positive solutions for judges, law students, professors and other players in the law clerk hiring process. [NLJ]

• Law School Supreme Court Clinics Catapult Students to Top Jobs. “These clinics, which have since cropped up at top law schools across the country, provide quality representation to groups who can least afford it and act as a pipeline to elite appellate work, including at the U.S. Supreme Court.” [Bloomberg Law]

• Warning or Threat? Democrats Ignite Controversy With Supreme Court Brief in Gun Case. “The Supreme Court is not well. And the people know it,” Sen. Sheldon Whitehouse, D-Rhode Island (at left), said in the brief. “Democratic Sens. Mazie Hirono (Hawaii), Richard Blumenthal (Conn.) Richard J. Durbin (Ill.) and Kirsten Gillibrand (N.Y.) joined the incendiary brief, which questions whether the court’s conservative majority—nominated by three Republican presidents—is motivated by partisan intent and is in the pocket of the National Rifle Association and the Federalist Society, a conservative legal group.” [The Washington Post]

• Domino’s Plaintiff to SCOTUS: Give ADA Web Accessibility Case Law Time to Develop. “But according to Guillermo Robles, the customer who sued Domino’s because he could not order the pizzas he wanted on its website or mobile app, the proliferation of ADA website accessibility suits is precisely why the Supreme Court should deny Domino’s petition for review.” [Reuters]

• EEOC Doesn’t Sign Trump DOJ’s Supreme Court Brief Against Transgender Employees. The Trump administration’s Justice Department is asking the U.S. Supreme Court to rule that a federal civil rights law does not bar discrimination against transgender employees, staking a position against the U.S. Equal Employment Opportunity Commission’s push for broader workplace protections. [NLJ]

• ‘The People’s Justice’: After Decade on Supreme Court, Sonia Sotomayor Is Most Outspoken on Bench and Off. “After 10 years on the Supreme Court, Sotomayor, 65, is not only its most outspoken questioner—succeeding the late Justice Antonin Scalia, who inspired today’s ‘hot bench’—but its most frequent public speaker and most prolific author. Her voice, in all its forms, has become the liberal conscience on a conservative court, one that speaks out in defense of minorities, immigrants, criminal defendants and death row inmates.” [USA Today]