Jockeying for Argument Time | Gorsuch Gets Personal | Ginsburg's Optimism | Ted Olson Fights for FedSoc
We're getting closer to the start of the new term, and that means resolving who will argue some of the big cases on the docket. Plus, a roundup of some of the many things Justice Gorsuch has revealed on his media tour promoting his new book. Thanks for reading!
September 11, 2019 at 07:00 AM
10 minute read
Welcome to Supreme Court Brief. Top Supreme Court advocates are offering the justices many—and competing—ways to handle argument time in the new term's five cases involving Puerto Rico's massive debt restructuring. We take a look at what the lawyers want. Justice Ruth Bader Ginsburg, keeping a busy public speaking schedule, opens up about her optimism. And Justice Neil Gorsuch is making the promotion rounds for his new book. We've got the highlights. Thanks for reading, and your feedback is welcome and appreciated. Contact us at [email protected] and [email protected], and follow us on Twitter at @Tonymauro and @MarciaCoyle.
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Jockeying Over Arguments in Puerto Rico Cases
Chief Justice John Roberts Jr. once compared his opinion writing assignments among his colleagues to a Rubik's Cube. He and the other justices may feel similarly challenged in deciding who will argue what, when and for how long in the five consolidated cases involving a constitutional challenge to the board created to oversee Puerto Rico's massive debt restructuring.
The financial stakes are enormous and, not surprisingly, the parties have turned to some of the Supreme Court bar's most recognizable advocates: former U.S. solicitors general Donald Verrilli Jr. of Munger, Tolles & Olson, and Theodore Olson of Gibson, Dunn & Crutcher; former acting Solicitors General Walter Dellinger of O'Melveny & Myers and Ian Gershengorn of Jenner & Block, among others.
The consolidated cases are set for argument on Oct. 15. The justices have three motions for divided arguments that offer them various ways of handling what are essentially two issues: Does the Constitution's appointments clause apply to the appointment of members of the Financial Oversight and Management Board for Puerto Rico and does the de facto officer doctrine validate previous acts by the board if there was a violation of the appointments clause.
The U.S. Court of Appeals for the First Circuit said selection of the board's members violated the appointments clause. The court applied the de facto officer doctrine to preserve the board's prior decisions.
U.S. Solicitor General Noel Francisco, joined by Verrilli, who represents the oversight board and challenges the First Circuit ruling, urges the high court to have all five cases argued as one rather than as two separate cases—one for each question. He cautioned the justices that if they heard separate arguments on the two issues, they would hear at least 10 separate presentations.
If there is one argument, Francisco suggests 15 minutes for the board, 15 minutes for the United States, with the board opening the argument and having rebuttal.
"After all, counsel before this court often address two issues in the course of a single argument," Francisco wrote in his filing. "If the court wishes to enlarge the time for argument, we propose allotting a total of 90 minutes and the court allow 25 minutes to the board and 20 minutes to the United States." But no sur-rebuttal by his opponents, he said.
That proposal drew objections from Olson, counsel to Aurelius Investment, and from Jessica Méndez-Colberg of Bufete Emmanuelli in Ponce, P.R., representing Unión de Trabajadores de la Industria Eléctrica y Riego.
In their motion, they propose one hour of argument on the appointments clause question and one hour on the de facto officer issue, with 30 minutes for each side on each question.
"This court has granted additional time where, as here, separately filed petitions presenting distinct claims are consolidated for argument, particularly when they raise constitutional questions of extraordinary importance," Olson wrote.
In the past, Olson noted, the justices gave six argument hours to the first challenge to the Affordable Care Act, two-and-a-half hours to the same-sex marriage arguments in Obergefell v. Hodges and four hours in the campaign finance challenge, McConnell v. FEC.
O'Melveny's Dellinger also filed a request to argue on behalf of the Puerto Rico Fiscal Agency and Financial Advisory Authority on the appointments clause issue—if, that is, any party other than the board, the United States and Aurelius gets argument time on that issue. Dellinger said he would argue that any decision reversing the First Circuit should not rely on the notion that Puerto Rico citizens have fewer constitutional rights than other U.S. citizens.
The justices, of course, will do whatever they choose, but expect an order soon on how the arguments will play out. —Marcia Coyle
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Why Ruth Bader Ginsburg Says She Is Optimistic
Despite the persistence of unconscious racial and gender bias and the struggle by both men and women for work-life balance, Justice Ruth Bader Ginsburg is optimistic about the future, said the justice in a conversation Sept. 9 at the University of Chicago. She is optimistic, she said to moderator Katherine Baicker, dean of the Harris School of Public Policy, because of "the changes I have seen over the course of my 86 years. I have seen enormous changes and that's what keeps me optimistic for the future."
But Ginsburg was less optimistic about ever seeing the Constitution changed to include amendments she thinks should be embraced. "I would like to see the Equal Rights Amendment and an amendment that would give D.C. representation in Congress," she said. "I also would agree with most of the items on Justice [John Paul] Stevens's list."
Ginsburg was referring to Stevens's book, "Six Amendments: How and Why We Should Change the Constitution," in which he called for amending the document to overrule the campaign finance decision, Citizens United v. FEC, and the Second Amendment decision finding an individual right to possess a firearm, among others. "It is largely a dream," Ginsburg said. "Our Constitution is powerfully hard to amend." —Marcia Coyle
>>> More reading: How Ruth Bader Ginsburg Welcomed Neil Gorsuch to the Supreme Court (CNN); Ruth Bader Ginsburg Speaks at University of Chicago: 'She's a Historic Role Model for Our Judicial System' (Chicago Tribune)
Justice Gorsuch Gets Personal
Justice Neil Gorsuch is on his first extended media tour since joining the high court, as he speaks with reporters about his new book "A Republic, If You Can Keep It." Gorsuch takes readers behind the scenes of his own selection and confirmation, our colleague Ryan Lovelace writes.
Losing his anonymity: "I lost my anonymity in the confirmation process. I didn't know how valuable anonymity was until I lost it," he said. And he sounded a bit homesick when he said, "If you're asking me, do I miss the Colorado mountains? Today's my birthday, I miss the Colorado mountains. I'd rather be in a trout stream right now. But I'm honored to be able to serve and humbled that I was chosen to do it." [NLJ]
Behind the scenes: Gorsuch's new book reveals behind the scenes of his nomination announcement here: 'Escape From Lookout Ridge': How Gorsuch Kept Trump's Supreme Court Pick Secret.
Hiding out: In another book excerpt, Gorsuch said President Trump offered him the Lincoln bedroom as an office to keep out of the media's sight while awaiting the announcement of his nomination. Gorsuch's wife, who was born in England, used as her space the bedroom typically used by Queen Elizabeth and once occupied by Winston Churchill. [Axios]
On overturning precedent: Gorsuch told The Washington Post about any instance where the court is asked to overturn a precedent, "I have to listen. And once in a while, I'm going to be persuaded. It's not going to be that often. But it's going to happen once in a while." [Washington Post]
Rules for law clerks: Gorsuch said he has two rules for law clerks: "I tell my law clerks I have two rules—only two rules—if you follow them, you're going to be just fine," he said. "Rule number one: Don't make it up—follow the law. Rule number two: when everybody else around you is yelling at you, asking you to make it up and condemning you for not making it up, refer to rule number one." [Fox]
A different presidential race: Gorsuch told the Wall Street Journal that he welcomed sports fan Justice Brett Kavanaugh to the Supreme Court by hiring two people wearing over-sized, foam heads of Presidents George Washington and Thomas Jefferson to race in the court's Great Hall. "It was a huge hit, because we of course have a lot of baseball fans on the court," he said. [Washington Examiner]
Supreme Court Headlines: What We're Reading
• No, the Federalist Society Is Not an Advocacy Organization. "Unlike the ABA, the Federalist Society has never taken a position as an organization on any contested legal question with which I deeply disagreed, let alone purported to speak for me on such a question," Gibson Dunn's Ted Olson (above) writes. [Politico]
• Sotomayor Works to Build Ties with Trump's Court Appointees. "[W]e are all human beings, we all have pasts," Sotomayor said. "Now, whether things occurred or didn't occur, all of that is irrelevant. It is yesterday, today is today and moving forward, I have to work with him. And because I have to work with him, my measure of him has to be what he is doing as a justice now." [WSJ]
• 5th Circuit Holds FHFA Structure Unconstitutional. Boost for Supreme Court Challenge to CFPB? "The intra-government split over the FHFA's constitutionality mirrors a divide between the Justice Department and the CFPB over that agency's constitutionality. The Justice Department told the Supreme Court last December that it believes the CFPB director is unconstitutionally insulated from the president's authority. But the CFPB is meanwhile defending its constitutionality in cases before the 2nd and 5th Circuits." [Reuters]
• Noel Francisco Discusses How He Prepares for the Nation's Biggest SCOTUS Hearings. When not taking up the government's biggest legal fights, Francisco said he's looking for interesting cases in which he can zero in on key points of law, moot courting his arguments twice before boiling them down to the most central issues. [NLJ]
• Flag-Burner at Center of Landmark Supreme Court Case Won't Face New Charges in DC. The Washington attorney general this week dropped all charges against Gregory Johnson, the activist who burned an American flag in front of the White House during Fourth of July celebrations. Johnson's lawyers invoked the 1989 U.S. Supreme Court decision Texas v. Johnson, which ruled that flag-burning was a form of symbolic speech protected by the First Amendment. That landmark case 30 years ago was a victory for Gregory "Joey" Johnson, the same person involved in the case that was dismissed Monday. [NLJ]
• Circuit Split Tees Up SCOTUS Fight on Whether Judges Are Policymakers. The question of whether judges are "policymakers" is at the heart of a U.S. Supreme Court case considered critical to Delaware courts' "politically balanced" structure, as well as their national reputation as an objective forum for business disputes. [NLJ] Reuters has more here.
• Lake Oswego High Grad to Clerk for the Supreme Court. Meet Caroline Lindsay, now clerking for Justice Clarence Thomas. [Lake Oswego Review]
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