Welcome to Supreme Court Brief. This morning we try to answer the question: What's going on with Kansas? The state has three cases in the new term so far. We take a look behind the cases into the state's handling of its active docket. And Justice Samuel Alito Jr. pressed former Solicitor General Theodore Olson in yesterday's Puerto Rico arguments about the advocate's priority—the Constitution or the money—in the justice's inimitable style. 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.

What's Up With Kansas?

Today the justices will hear argument in Kansas v. Garcia, the second of three cases this term in which the Sunflower State is a named party. On October 7, the first argument was Kahler v. Kansas. And on November 4, the court will hear Kansas v. Glover. All three are criminal cases.

It is rare but not unprecedented for a state to become directly involved in so many cases in a single term. According to Dan Schweitzer, Supreme Court counsel for the National Association of Attorneys General, Texas, Michigan and California—all large states—have argued three cases before the Supreme Court in recent terms, and in 2010, California had four.

In July, when the argument dates were set, Kansas Attorney General Derek Schmidt remarked in a statement: "It is highly unusual for a single state, especially a small state like Kansas, to have three cases pending before the court simultaneously. We are working vigorously to prepare for these three arguments and look forward to presenting the state's cases in the fall."

So how can the frequent appearances of Kansas be explained? We asked former Kansas solicitor general Stephen McAllister, a former U.S. Supreme Court law clerk and a scholar of the high court who is currently U.S. Attorney for the District of Kansas.

"As a general matter, Kansas has a Supreme Court that is off the rails," McAllister said, stressing that he was speaking on his own behalf, not for the government. "They've gone overboard on the defendants' side and they've gotten the Supreme Court's attention."

The Kansas Supreme Court in the Kahler case went against the defendant on an insanity defense, but in Garcia, an immigration case, and Glover, a Fourth Amendment traffic stop dispute, the Kansas high court ruled for the defendant.

To handle the trilogy, Kansas AG Schmidt has rolled up his sleeves himself. He will be arguing today in the Garcia case, his third U.S. Supreme Court argument. State solicitor general Toby Crouse was at the lectern on October 7, and Crouse will do it again in November.

Going up against Schmidt will be Paul Hughes, partner at McDermott Will & Emery, arguing his sixth Supreme Court case, and his first since he and his colleague Michael Kimberly departed from Mayer Brown in June. Kimberly is also on the Garcia brief with Hughes, as is Sarah Hogarth, a McDermott veteran, and Andrew Lyons-Berg, another Mayer Brown alum.

Hughes represents, on a pro bono basis, three non-citizens who used stolen Social Security numbers to gain employment. At issue is whether they can be prosecuted under state rather than federal law. "The federal government brings a range of possible tools to the table," Hughes said in an interview. "When states prosecute this offense, the only thing they seek are state criminal charges." —Tony Mauro

Alito Asks: 'What's Really Going On Here'?

The question was quintessential Samuel Alito Jr. The justice doesn't ask many questions but when he does, his questions can be blunt and incisive.

During Tuesday's arguments in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, Alito's target was Aurelius's counsel, former George W. Bush Solicitor General Theodore Olson of Gibson, Dunn & Crutcher. His client holds "substantial amounts of outstanding general-obligation bonds" that Puerto Rico issued. Alito: "Mr. Olson, are you and your client here just to defend the integrity of the Constitution, or would one be excessively cynical to think that something else is involved here involving money? And, if so, what is it? What did the board do that hurt your client?"

"Are you and Aurelius here just as amici to defend the Constitution, or do you have some concrete grievance? I mean, you don't have to answer this if you don't want to, but there is no money issue involved here?"

Olson: "Of course there—of course there—" Alito: "Well, what is it? I'd just like to know what—this is a real case. I'd like to know what's really going on here."

Olson: "Well, there's over $100 billion of indebtedness being adjudicated in various procedures, a lot of which is—"

Alito: "Right, and your client wants more of it and somebody else you think is getting too much. So what is it exactly? If you want to answer. If not—"

Olson: "We can't possibly answer that. There are these extraordinarily large claims, which the agencies of Puerto Rico have defaulted on, have not been able to pay these claims. So, yes, you're right. Of course, it involves a lot of money. And the money is in a process that's being adjudicated by a federal district judge appointed by the Chief Justice of the United States."

And Justice Alito rested. —Marcia Coyle

Supreme Court Headlines: What We're Reading

>> Liberal Group, Shunning Big Law, Pitches 32 SCOTUS Shortlisters. Thirty-two plaintiffs lawyers, academics, state and federal judges, civil rights advocates and others, but none from Big Law, should be considered by Democratic presidential contenders for any new opening on the U.S. Supreme Court, the progressive group Demand Justice said Tuesday in pitching a list of would-be justices. [NLJ] The Washington Post has more here.

>> Roberts, Urged to Overrule Race-Based 'Insular Cases', Questioned Relevance. A first-time advocate had one message for the U.S. Supreme Court in Tuesday's arguments involving Puerto Rico's fiscal crisis: Take this "perfect opportunity" to overrule the high court's discredited, race-based "Insular Cases." But Chief Justice John Roberts Jr., responding to the lawyer, said he didn't see the "pertinence." [NLJ]

>> The Supreme Court Case Testing the Limits of Gorsuch's Textualism. "The justice to whom that question is posed most sharply, and who may well cast the deciding vote in these cases, is Justice Neil Gorsuch. Gorsuch may find himself pulled in different directions by two of his strong jurisprudential commitments." [Politico]

>> DOJ Must Face Misconduct Inquiry in 'No Fly List' Case, SCOTUS Rules. The U.S. Supreme Court on Tuesday refused to take up the Justice Department's challenge to a federal appeals court decision that lambasted government lawyers for their conduct in a case involving a former Stanford University graduate student wrongly placed on the "no-fly" list. [NLJ]