Welcome to Supreme Court Brief and the second day of the new term. The justices will hear arguments in three major Title VII cases asking whether the law bars discrimination based on sexual orientation and gender identity. The Buckley Beal partner who shepherded one of those cases to the high court spoke with us recently. Plus: On its Monday orders list, the justices granted a rare non-party intervention motion in a case in which the U.S. Justice Department abandoned the EEOC's litigating position. And former Obama Solicitor General Donald Verrilli Jr. is making the case against high court review of a victory by the families of the Sandy Hook school shootings against Remington Arms. 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.

 

 

 

Small Atlanta Firm Gets Big Moment in Major LGBT Cases

Atlanta-based Buckley Beal partner Brian Sutherland will not be at the high court lectern this morning arguing on behalf of his client Gerald Bostock that Title VII prohibits employers from discriminating because of sexual orientation. Even though the justices denied his request for argument time, you won't hear a word of disappointment from him.

Instead, Stanford Law's Pamela Karlan will argue for Bostock and the estate of Donald Zarda—two men who claimed they were fired because they were gay—in the consolidated cases Bostock v. Clayton County, Georgia, and Altitude Express v. Zarda.

"I've known Pam a long time and we're very confident in her," said Sutherland who, along with his partner Thomas Mew, will be at the counsel's table to assist if needed.

The justices will hear a third Title VII case—whether the bar on discrimination because of sex includes gender identity discrimination—an hour after the Bostock arguments. ACLU national legal director David Cole, representing Aimee Stephens, will oppose John Bursch of Alliance Defending Freedom and U.S. Solicitor General Noel Francisco in R.G. and G.R. Harris Funeral Homes v. EEOC.

Bostock, who worked for Clayton County, Georgia, until he lost his job, turned to the 11-lawyer, Atlanta firm after he received notice of a right to sue from the Equal Employment Opportunity Commission. "I'm not sure how he found us but we're glad he did," said Sutherland who shepherded the case to the Supreme Court. "We obviously wanted to represent Gerald because we believed in him and believe what we argue in the Supreme Court papers."

Sutherland (at left), a former trial attorney with the EEOC, said he and Zarda's counsel, Gregory Antollino of New York, have worked together to present the case to the justices. They had agreed after review was granted that if their request for divided argument was denied, Karlan would argue for both. Karlan, co-director of the Stanford Supreme Court Litigation Clinic, will face Jeffrey Harris, partner at Consovoy McCarthy in Arlington, Virginia, and U.S. Solicitor General Noel Francisco.

Despite its small size, Buckley Beal has supported its two lawyers without hesitation, they said. "Our mission is to do the very best work we possibly can for individuals in employment and business cases," Sutherland said. "We have a no-stone-unturned approach and a laser focus on research and writing in the federal courts here in Georgia. It was kind of obvious what we needed to do in this case."

More than five dozen amicus briefs have been filed by groups and individuals spanning political, religious, legal, social science, business and medical interests. —Marcia Coyle

>> More reading at The Washington post: "Tuesday may feature the first time the word 'transgender' is spoken during oral arguments in the highest court in the United States. And when the justices look out from the bench and see my co-counsel and me at counsel table, it may be the first time they have looked at transgender attorneys defending our own existence before their powerful bench," writes Chase Strangio, deputy director for transgender justice at the ACLU's LGBT & HIV Project.

 

 

Rare Intervention Grant at Supreme Court

The justices on Monday granted a rare motion to intervene and file a brief in opposition to a petition in an American with Disabilities Act case in which the Trump administration's Justice Department no longer supported the EEOC's winning position in the court below.

In BNSF Railway Co. v. EEOC, Russell Holt sought to intervene to defend a nearly $100,000 judgment that the EEOC won on his behalf and which the Ninth Circuit affirmed in relevant part, according to the motion filed by Stanford Law's Brian Fletcher and Pamela Karlan (above).

"In the nearly fifty years that the EEOC has been bringing enforcement suits like this one, it appears that the Solicitor General has never before asked this Court to undo a judgment that the Commission secured for an individual victim of discrimination," Fletcher wrote. "The Solicitor General's attack on a judgment that the Commission secured for a specific individual is the extraordinary circumstance warranting intervention here."

U.S. Solicitor General Noel Francisco did not oppose the motion, but BNSF, represented by Gibson, Dunn & Crutcher partner Andrew Tulumello, did oppose the request.

Holt had not intervened as a party to the EEOC litigation at the district or appellate court levels. Non-party intervention at the Supreme Court, wrote Tulumello, is limited to "rare occasions" involving "extraordinary factors" that make it imperative—"conditions that are not present here."

Tulumello argued that intervention at this stage is so rare that no statute or rule sets a standard for intervening before the Supreme Court.

"Holt cites no case, and BNSF is aware of none, in which a non-party has been permitted to intervene at the certiorari stage in order to file a brief in opposition," he added. And, he warned, granting the motion, "would invite a flood of similar motions from every charging individual disappointed with the government's legal analysis and litigation strategy, particularly in appellate matters."

Fletcher countered: "Mr. Holt does not seek to add new claims, to reopen the record, or otherwise to expand the issues in this case in any way. He seeks only to pick up where the EEOC left off in defending the judgment the commission secured for him." —Marcia Coyle

 

 

 

Verrilli Now Leads Sandy Hook Victims' Case

The families of victims of the Sandy Hook school shooting have retained former U.S. Solicitor General Donald Verrilli Jr. to represent them in their U.S. Supreme Court fight with gunmaker Remington Arms Co. LLC.

Verrilli, now a partner at Munger, Tolles & Olson, was counsel of record for the plaintiffs, according to new filings in the U.S. Supreme Court. He filed a brief on their behalf Friday to oppose Remington's attempt to have the U.S. Supreme Court rule that a federal law shields it from liability in the Sandy Hook case.

Verrilli has teamed with Munger Tolles colleagues Elaine Goldenberg, Rachel Miller-Ziegler, David Fry, Benjamin Horwich, Justin Raphael and Teresa Reed Dippo. They join with Connecticut attorneys Josh Koskoff, Alinor Sterling and Katherine Mesner-Hage of Koskoff Koskoff & Bieder.

Opposing counsel are Swanson Martin & Bell attorneys James Vogts and Andrew Lothson, and Baker Botts litigators Scott Keller and Stephanie Cagniart. Keller, a former Texas solicitor general, is counsel of record.

"The Sandy Hook victims were slain in a commando-style assault on the school. Their killer's weapon of choice was a Bushmaster XM15-E2S rifle, manufactured and marketed by petitioners," the Munger Tolles team said in their opposition brief. "The XM15-E2S was designed for military combat, specifically to inflict maximum lethal harm on the enemy. Petitioners' marketing emphasized precisely those characteristics of the firearm. In words and images, petitioners touted the XM15-E2S as a combat-tested weapon that would bestow the power to 'perform under pressure' and 'single-handedly' conquer 'forces of opposition.'"

Lawyers for Remington contend "the Protection of Lawful Commerce in Arms Act 'generally preempts claims against manufacturers and sellers of firearms and ammunition resulting from the criminal use of those products.'"

Meanwhile, the justices on Monday said they would not reconsider their decision to review a New York firearms case this term, despite claims from the city's lawyers that the case is moot. The court said the lawyers in the case should be prepared to discuss mootness at argument. —Mike Scarcella

 

 

 

Supreme Court Headlines: What We're Reading

Monday orders

• Winston & Strawn Loses SCOTUS Bid to Stop Ex-Partner's Discrimination Lawsuit. Winston & Strawn on Monday lost its bid in the U.S. Supreme Court to stop a California state ruling that allowed a former partner to bring discrimination and retaliation claims in court against the law firm. Former partner Constance Ramos, represented by Karla Gilbride of Public Justice, contends the firm discriminated against her. A team from Orrick, including E. Joshua Rosenkranz, advocated for Winston & Strawn. [NLJ]

• U.S. Supreme Court Snubs University of Wisconsin Appeal in Patent Fight With Apple. "The U.S. Supreme Court on Monday refused to hear a bid by the University of Wisconsin's patent licensing arm to reinstate its legal victory against Apple Inc in a fight over computer processor technology that the school claimed the company used without permission in certain iPhones and iPads." [Reuters]

• Supreme Court Rejects Domino's on Blind Man's Website Lawsuit. "Corporate trade groups had urged the court to take up the case, saying they are seeing an explosion of lawsuits alleging that sites don't comply with the Americans with Disabilities Act. They contended that businesses can't be sued for failing to make their websites and mobile-phone apps accessible to people with disabilities." [Bloomberg] Slate has more here. And California's The Recorder has this report.

• Republicans Win Ohio Voting-Map Case as Supreme Court Tosses Ruling. "The U.S. Supreme Court tossed out a lower court ruling that would have required Ohio's congressional voting map to be redrawn to be less favorable to Republicans. The move is part of the fallout from the high court's decision in June insulating partisan gerrymanders from constitutional challenges. A three-judge panel had thrown out a GOP-drawn Ohio map under which Republicans have won 12 of the 16 congressional seats in each of the last four elections." [Bloomberg]

New petitions & arguments

• A Supreme Court Argument Debut, and a New Format: Opening Day Highlights. It was a packed house at the U.S. Supreme Court on Monday morning. Was it because this was the first Monday in October, the big day for Supreme Court aficionados? Or was it because Supreme Court practitioners wanted to see how the court's new policy giving advocates two uninterrupted minutes of argument time would work out? [NLJ]

• Supreme Court Is Asked to Decide if Electoral College Voters Are Bound to the State's Winner. "Three presidential electors in Washington state who voted for Colin Powell in 2016 rather than Hillary Clinton and were fined under state law, are asking the US Supreme Court to take up their appeal and decide whether a state can bind an elector to vote for the state's popular vote winner." [CNN] L. Lawrence Lessig is counsel of record on the petition.

• Are LGBTQ Employees Safe from Discrimination? A New Supreme Court Case Will Decide. "For people like the O'Donnells, whatever the Supreme Court decides will have an outsize impact on their lives. They've already felt the limits of the protections in the city they call home." [NPR] The Wall Street Journal has more here.

• Cases Involving Interracial Relationships Should Spell SCOTUS Victory for LGBT Workers. "There are eight relatively unknown cases—Parr v. United Family Life Insurance, Holcomb v. Iona College, Deffenbaugh-Williams v. Wal-Mart Stores, Tetro v. Elliot Popham Pontiac, Oldsmobile, Buick & GMC Trucks, Whitney v. Greater N.Y. Corp. of Seventh-Day Adventists, Holiday v. Belle's Restaurant, Gresham v. Waffle House and Reiter v. Center Consolidated School District—that do form the basis of the irrefutable analogy, under Title VII, between discrimination against employees in interracial relationships and employees in same-sex relationships." [NLJ]

• Supreme Court Sounds Doubtful About PTO's Claim to Attorneys Fees. The Supreme Court sounded skeptical Monday of the U.S. Patent and Trademark Office's claim to its attorneys fees when dissatisfied patent applicants sue the agency in federal district court, our colleague Scott Graham reports. [NLJ]

Ideas

• Is the Supreme Court Heading for a Conservative Revolution? "According to a FiveThirtyEight analysis of Supreme Court decisions dating back to 1953, his court so far actually hasn't been any more likely than previous courts to alter precedents. But there's a key distinction: When the Roberts court does break with past rulings, it tends to do so by the slimmest of margins." [FiveThirtyEight]