Updated on Oct. 2 at 12:51

Welcome to Supreme Court Brief! The justices were expected to meet yesterday for their long summer conference list. They should reveal soon what cases they'll add to the argument calendar for the upcoming term. We recently caught up with the ACLU's John Knight, who is on the team advocating for Aimee Stephens in the Title VII transgender case on Oct. 8. A would-be first-timer hopes to stand at the lectern in another major case: California Solicitor General Michael Mongan has requested shared time with Gibson Dunn & Crutcher's Theodore Olson in the the DACA challenge. Meanwhile, appellate veterans are jockeying at the high court over which case testing the power of single-director agencies the justices should review.

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ACLU Stands Up for Transgender Persons as EEOC Stands Down

The first sign Aimee Stephens learned she might not be able to rely on the U.S. Equal Employment Opportunity Commission to pursue her discrimination claims came on President Donald Trump's inauguration day, when an LGBT rights page disappeared from the White House website.

Six days after Trump's inauguration, lawyers from the American Civil Liberties Union Foundation filed papers intervening on her behalf in the U.S. Court of Appeals for the Sixth Circuit, where her discrimination case against R.G. and G.R. Harris Funeral Homes was pending.

"Aimee called the ACLU after she was fired," said John Knight (at left), a lawyer for Stephens and senior staff attorney at the ACLU LGBT & HIV Project.

Stephens, who alleges the funeral home unlawfully fired her after informing them about her transition from male to female, is now at the center of a major Supreme Court set for argument next week. The case explores the scope of LGBT protections under Title VII.

Trump's Justice Department changed the EEOC's position on whether Title VII's ban on sex discrimination includes transgender discrimination. U.S. Solicitor General Noel Francisco will argue on the side of the funeral homes on Oct. 8. The ACLU's David Cole, senior legal director, will argue for Stephens next week.

Before joining the ACLU, Knight was a trial attorney for the EEOC. And he is not the only former EEOC attorney involved in the trio of LGBT cases being heard on Tuesday. Brian Sutherland, partner in Buckley Beal and counsel of record to Gerald Bostock in Bostock v. Clayton County, Georgia, spent several years as an EEOC trial attorney in Miami.

Knight, a graduate of the University of Chicago Law School, has been an advocate for transgender and nonbinary persons since 2004. Knight  is no stranger to appellate arguments. He argued in the Iowa Supreme Court in a case challenging Iowa's ban on Medicaid coverage for medical care for transgender individuals, and he argued in a Seventh Circuit case overturning Wisconsin's ban on medical care for transgender people in prison. Knight argued in an Illinois Appellate Court challenge for a transgender student, and in the Wisconsin Supreme Court in a case regarding domestic partner benefits for state employees.

"All of us who are working on this case are aware of the stakes for Aimee and other transgender people around the country and are taking that responsibility very seriously," Knight said. "Aimee's story and the stories of other transgender people who have experienced discrimination are constantly on our minds as we prepare." —Marcia Coyle

 Correction: An earlier version of this report said Knight would argue in the high court next week, making his debut. The ACLU's David Cole will, instead, make that argument on behalf of Aimee Stephens.

Appellate Veterans Jockey at SCOTUS to Contest Consumer Bureau

Conservative appellate lawyers from major U.S. law firms are vying against each other at the U.S. Supreme Court as the justices weigh whether to hear arguments against the Consumer Financial Protection Bureau, an agency whose independent, single-director design long has drawn the ire of the financial industry and congressional Republicans.

It's the legal equivalent of elbow-throwing at the high court. Appellate lawyers representing different clients have given the justices competing arguments against the consumer bureau, framing their cases as the best path to confront a constitutional question that has reverberated in the lower courts, and divided them, for several years.

The Supreme Court is expected to announce soon whether the justices will hear any challenge to the structure of the consumer bureau, whose sole leader can only be removed from power for cause, not at will.

A team from Gibson, Dunn & Crutcher, including Theodore Olson, who served as the U.S. solicitor general in the George W. Bush administration, and Helgi Walker (above), a leader of the firm's regulatory group, late Monday asked the Supreme Court to take a case that the firm has overseen in the U.S. Court of Appeals for the Fifth Circuit.

Gibson Dunn's filing came as the Supreme Court is set to consider on Oct. 11 a separate petition from Seila Law, a California-based debt resolution firm that is represented by Paul, Weiss, Rifkind, Wharton & Garrison partner Kannon Shanmugam. He told the justices that the Seila Law case "cleanly" presents the constitutional question before the court.

Gibson Dunn lawyers presented client All American Check Cashing's challenge as the best case for the justices to confront the constitutionality of the CFPB. Olson, as counsel of record, and Walker contend that their case tees up an issue that Paul Weiss does not directly address: What's the remedy for companies if the court strikes down the single-director structure of the CFPB?

Meanwhile, Charles Cooper of Washington's Cooper & Kirk, tells the justices that he's got an on-point case challenging the single-director structure of the Federal Housing Finance Agency. "This case is a better vehicle than Seila Law because it concerns an agency that is currently defending its constitutional structure," Cooper wrote in his petition. —C. Ryan Barber

California's SG, Former Souter Clerk, Would Make High Court Debut in DACA Cases

California's top state appellate lawyer is poised to make his U.S. Supreme Court debut in just a few weeks in support of shielding hundreds of thousands of undocumented immigrants from deportation under the Obama-era program known as Deferred Action for Childhood Arrivals.

Solicitor General Michael Mongan is requesting to split 40 minutes with Gibson, Dunn & Crutcher's Theodore Olson, who would argue for certain individual DACA recipients. Mongan would represent the interests of 20 states—including California, New York, Connecticut, Delaware and Pennsylvania—that are arguing against the Trump administration's efforts to rescind the program.

Mongan would make his rookie appearance before the high court in one of the new term's most visible cases, one that crystalizes the ongoing fight between the White House and Democrats over immigration and citizenship. But he is no stranger to the nation's biggest legal stages.

Named California's solicitor general just a little over two months ago, Mongan argued for the state in defense of DACA before the U.S. Court of Appeals for the Ninth Circuit in May 2018. Six months later, the Ninth Circuit upheld a lower court's injunction blocking the Trump administration's attempted rollback of DACA, which temporarily exempts certain undocumented immigrants brought to the U.S. as children from deportation.

Mogan is a former clerk to now-retired Justice David Souter and to Judge Merrick Garland on the U.S. Court of Appeals for the D.C. Circuit. He succeeded Edward DuMont, the former Wilmer Cutler Pickering Hale and Dorr partner, as the California solicitor.

Kyle Hawkins, the Texas solicitor general, is seeking argument time as an amicus party on behalf of Republican-led states arguing in support of ending DACA. Hawkins formerly clerked for Justice Samuel Alito Jr. and for Judge Edith Jones on the Fifth Circuit. —Cheryl Miller

Supreme Court Reading Files

• Abortion Appeals Waiting as Supreme Court Returns for New Term. "Abortion cases are coming to the U.S. Supreme Court, and they're only getting harder for the justices to avoid. The court next week starts a new term that will give the clearest indication yet of how eager the justices are to roll back the right to end a pregnancy. Rulings on major cases could come next June in the heat of the presidential campaign." [Bloomberg]

• Harvard Defeats Suit Challenging Race-Based Admission Policy. Harvard's lawyers at Wilmer Hale convinced a Boston federal trial judge to uphold the school's race-conscious admissions policy. Edward Blum of the Students for Fair Admission Inc. vowed to press an appeal. [NLJ]

• Supreme Court Is Key After Trump's String of Losses in Lower Courts. "The Supreme Court's actions also have hinted at a tug of war within the judiciary, with justices more willing than some lower courts to grant the White House some latitude." [The Wall Street Journal]

• SCOTUS Spotlight: Tony Mauro on the Supreme Court Beat. Tony Mauro, our veteran Supreme Court correspondent who now regularly contributes to SCB and other ALM publications, sits down with Amy Howe about covering the high court. [SCOTUSblog]

• Opinion: Much at Stake in Transgender Supreme Court Case. "The heart of this case is whether the government can change the law out from under law-abiding citizens. Hanging in the balance is far more than the fate of a century-old Detroit institution, it's the right of every American to rely on what the law says," John Bursch (at left), set to argue next week in the high court, says. He argues that a ruling against his client would punish "other businesses for relying on the law as it is written." [The Detroit News]

• 'Sex' at the Supreme Court. "Just as employers had to accommodate women in what were previously male-only workplaces, so, too, sex equality demands accommodation of transgender people. But it does not require elimination of all sex-specific rules," writes David Cole, national legal director of the ACLU. [The New York Review of Books]

• In Death Penalty Cases, Sotomayor Is Alone in "Bearing Witness.' "In all three cases, only one member of the court bothered to write an opinion, to give a hint about what was at stake. That was Justice Sonia Sotomayor, who maintains a sort of vigil in the capital cases other justices treat as routine." [NYT]

• Supreme Court Justices Should Have Term Limits. "The best solution is to create Supreme Court term limits by statute. Several proposals exist for statutory term limits. The one we favor would give justices a fixed term of 18 years. Appointments would be staggered to allow each president two appointments per term, one in both the first and third year," write Penn law prof Kermit Roosevelt and Ruth-Helen Vassilas, a Skadden Arps associate in London. [CNN]