Welcome to Supreme Court Brief and week two of the October argument session. The justices have a high-stakes argument this morning featuring former U.S. solicitors general in a face-off over Puerto Rico and the Constitution's appointments clause. We look at the arguments and the lawyers. Plus: The old, discredited Insular Cases popped up in last week's arguments over non-unanimous juries. We spoke with a lawyer who thinks the justices' comments suggest they might reconsider the Insular Cases in the Puerto Rico challenge. Thanks for reading, and feedback is always welcome and appreciated. Contact us at [email protected] and [email protected], and follow us on Twitter at @Tonymauro and @MarciaCoyle.

Former SGs Face Off in Billion-Dollar Constitutional Fight

Issues surrounding presidential power are consuming the U.S. House as it engages in an impeachment inquiry. The Supreme Court this morning has its own case involving presidential power but of a different stripe, and with billions of dollars at stake.

Four lawyers will take turns during an enlarged 80 minutes of argument in the case Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment. The case raises appointments clause and "de facto officer" doctrine issues surrounding the board's membership. The board has seven voting members, six of whom are chosen from a list compiled by Congress and are not subject to Senate confirmation, and the seventh is appointed at the president's discretion.

The justices granted review and consolidated five petitions—three from the board, the Trump Administration's Justice Department and a committee of unsecured creditors—and two from creditors Aurelius and the Unión de Trabajadores de la Industria Eléctrica y Riego Inc. ("UTIER").

Former Obama Solicitor General Donald Verrilli Jr., partner at Munger, Tolles & Olson, represents the board, which was created by Congress's enactment in 2016 of the Puerto Rico Oversight, Management and Economic Stability Act to restructure the island's $70 billion-debt. Verrilli will share equal time with Deputy Solicitor General Jeffrey Wall.

Former George W. Bush Solicitor General Theodore Olson, partner at Gibson, Dunn & Crutcher, is counsel to Aurelius. He will have 30 minutes and UTIER's counsel, Jessica Mendez-Colberg, partner at Bufete Emmanuelli in Ponce, Puerto Rico, will have 10 minutes. Mendez-Colberg will make her high court debut this morning. She is a 2013 graduate of the Pontifical Catholic University of Puerto Rico Law School.

At the center of the dispute is a ruling by the U.S. Court of Appeals for the First Circuit. The appellate court held that the board members are "officers of the United States" who must be nominated by the president and confirmed by the Senate. That court refused to reverse the board's allegedly unconstitutional actions because of the severe consequences for those parties who relied on them and, instead, applied the de facto officer doctrine to allow prior and certain prospective board decisions to stand.

The case is complex and rich with Puerto Rico's history and its and other territories' relationships with Congress. —Marcia Coyle

Will the 'Insular Cases' Follow Korematsu's Fate

During last week's arguments in Ramos v. Louisiana, which asks the justices if the Sixth Amendment requires unanimous juries in criminal trials, Neil Weare, president of Equality American, heard two justices refer to the Insular Cases in a way that triggered optimism that his organization's long-sought goal may be at hand.

Weare, a civil rights attorney, said his organization filed an amicus brief in this morning's case involving Puerto Rico that urges the justices to overturn the Insular Cases just as they overruled Korematsu v. United States in Trump v. Hawaii last year.

The Insular Cases were a series of controversial Supreme Court decisions in the early 1900s that left the citizens of territories including Puerto Rico, Guam and American Samoa with limited constitutional rights and no guarantee of statehood. They have been widely compared to Plessy v. Ferguson because they were fueled by similar racial attitudes.

In Ramos, Justices Stephen Breyer and Samuel Alito Jr. reacted to statements by Louisiana's counsel that Puerto Rico and other territories had certain reliance interests, like Louisiana and Oregon, on non-unanimous juries. Breyer said, "Puerto Rico is worrying me" and suggested the Insular Cases might have to be "revised."

Alito hypothesized that if the criminal defendant wins in Ramos, he envisioned a Puerto Rico defendant coming to the court and saying he is an American citizen and the only reason he was able to be convicted by a non-unanimous jury "are these old Insular cases that reflect attitudes of the day in the aftermath of the Spanish American war…and you should brush aside the Insular Cases."

Today's Puerto Rico case will be "the first time the Insular Cases are a part of the argument since Balzac v. Porto Rico, the last of the Insular Cases," Weare said. "The court hasn't had many opportunities to reconsider them. This case certainly provides the opportunity where the parties had relied aggressively on the cases to say the board is constitutional."

The union, UTIER, will argue that those cases should be overturned because they constitute "an anachronism that not only validates a regime of discriminatory incorporation of some constitutional individual rights of 3.3 million American citizens, but reaches to the extreme of sidestepping the structural provisions of the Constitution that protect liberty against tyranny."

Weare believes the justices will have to say something about the Insular Cases in deciding the Puerto Rico challenge.

Although there are a number of alternative grounds on which the court could rule, Weare said, a dynamic similar to the Korematsu overruling could be in play with the Insular cases. Both were "morally repugnant" decisions.

"I feel like after doing Korematsu last term, it's much harder in a case where the Insular Cases are present, for them to say, 'We can decide on alternative grounds and we'll be just be silent,'" he said. —Marcia Coyle

SG Noel Francisco Seeks Argument Time in Georgia Copyright Case

U.S. Solicitor General Noel Francisco (above) is seeking ten minutes of argument time in the big Georgia state code copyright case. The Justice Department is backing Georgia, the petitioner, as it questions whether annotations accompanying the text of Georgia's state code can be subject to copyright protections. The U.S. Justice Department has thrown its support to Georgia in the Supreme Court.

"The parties' briefing in this Court invokes a Copyright Office manual that addresses the scope of copyright protection for annotations and similar materials," Francisco wrote in his motion seeking argument time. He said the United States "has a substantial interest in the court's disposition of this case."

On Friday, counsel to the respondents—Public.Resource.Org Inc.—filed their merits brief. Public Resource is represented by the Washington litigation boutique Goldstein & Russell. Partner Eric Citron is counsel of record.

"Nothing in copyright law, the seminal cases, or common sense suggests that, by inserting Lexis into a process that begins and ends with state legislative authority and personnel, the state can transform an official legal document that holds itself out as 'published under the authority of the state' into a copyrightable work," Citron writes. The case is set for argument on Dec. 2. —Mike Scarcella

Supreme Court Headlines: What We're Reading

• What (and Who) to Watch at SCOTUS: Unpacking the New Term With Mayer Brown's Nicole Saharsky. The Supreme Court's 2019 term just openedamid a super-charged political season. With a simmering impeachment investigation and a looming presidential election, the court will be taking on issues related to guns, abortion, immigration and LGBT rights. That's likely to make for a blockbuster term—and cause a few headaches for Chief Justice John Roberts, says Mayer Brown partner Nicole Saharsky (at left), a veteran Supreme Court advocate. Saharsky, who spent 10 years in the U.S. Solicitor General's Office, co-leads the Supreme Court and appellate practice at Mayer Brown. She joined the firm last year from Gibson, Dunn & Crutcher. [NLJ]

• What Would Happen If Trump Ignored a Divided Supreme Court Ruling Against Him? "There are certainly those who think we are already in the midst of a constitutional crisis. But Friday's ruling provides an ominous harbinger of what might be the real constitutional crisis to come," law prof Steve Vladeck writes. [The Washington Post]

• The Supreme Court Could Get a Lot More Undemocratic. "Despite the significant power it wields, the Supreme Court is among the federal government's most undemocratic institutions. Its justices are appointed for life terms, and selected and confirmed by presidents and the Senate—which themselves do not necessarily reflect the will of the public," law professor Leah Litman writes. [The Washington Post]

• Trump Picks Ex-Mayer Brown Partner, Souter Clerk for Russia Ambassador. The former co-leader of Mayer Brown's national security practice will be the Trump administration's nominee to serve as the U.S. ambassador to Russia, the White House says. John Sullivan has served as the second-in-charge at State since mid-2017. Sullivan clerked for Justice David Souter during the 1990-1991 Supreme Court term, the first for the newly appointed justice. His co-clerks that year were Meir Feder, Paul Salamanca and Peter Spiro. Feder's now a New York-based partner at Jones Day. Salamanca teaches at University of Kentucky College of Law, and Spiro teaches at Temple University Beasley School of Law. [NLJ]

• The Last of the Sketch Artists on Cameras in the US Supreme Court. "[Art] Lien has no illusions about the fate of the quaint tools of his trade—papers, pencils, and watercolor paints. The artist's days in court are numbered, he says." [Quartz]

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