Welcome to Supreme Court Brief! The justices are off the bench this week and next week but several are using this time before the November argument round to visit law schools. We take a look at a petition triggered by a Federal Circuit practice that has rankled practitioners on the losing end and engendered a fair amount of criticism. Plus: Veteran high court advocates offer their thoughts on the Supreme Court's recent guidance on filing amicus briefs. Thanks for reading, and feedback is always welcome and appreciated. Contact us at [email protected] and [email protected] and follow us on Twitter at @MarciaCoyle and @Tonymauro.

New Guidance, for "Friends"

The clerk of the U.S. Supreme Court released a memorandum last week to provide additional guidance on the court's rules for filing amicus briefs.

Although it quickly became a must-read for high court advocates, Deanne Maynard, co-director of Morrison & Foerster's Supreme Court and appellate practice, summed up a number of reactions by those advocates when she told Supreme Court Brief: "While the new guidance is generally consistent with my understanding of amicus practice before the court, it is helpful that the court has gathered it all together in one document and clearly set forth the court's expectations."

Here's what some other advocates told us:

>> Sarah Harrington, partner at Goldstein & Russell: "Mostly, the new guidance seems to reiterate requirements already set out in the rules. It does offer some new guidance, in particular by making clear that an individual amicus can join only one brief (per stage) and that an individual attorney can serve as counsel of record on more than one amicus brief in the same case." Harrington continued: "The fact that the court feels the need to address those types of practice rules is evidence of just how many amicus briefs are filed these days. The court's clarification of what an amicus brief does not need to include (statement of the case, questions presented) also suggests that the court would like to see amicus briefs streamlined a bit."

>> Pratik Shah, co-head of the Supreme Court and appellate practice at Akin Gump Strauss Hauer & Feld: "The one tidbit I found interesting was the guidance that a person/entity may be listed as an amicus on only one brief per case (perfectly sensible), but an attorney can serve as counsel of record on multiple amicus briefs in the same case (somewhat stranger)."

>> Kelsi Corkran, partner at Orrick, Herrington & Sutcliffe: "I think most of the guidance comes from the already existing rules, but it will be helpful to newcomers to have everything in one place in an easily digestible format. One exception is the guidance about how to handle a large number of amici—I could be wrong, but I believe that's new and slightly different from prior informal practice which generally allowed an appendix describing each amicus party (or at least such briefs generally weren't bounced)." Corkran continued: "Also, although the rule permitting attorneys to serve as counsel on more than one amicus brief in a party isn't new, I don't recall seeing it written anywhere before."

>> Roman Martinez, partner at Latham & Watkins: "The court seems to be taking a closer look at some of its operating practices and trying to improve the mechanics of briefing and arguing cases. That's clear from both the new amicus guidelines and the new policy of giving advocates two minutes of time at the beginning of oral argument to state their position without questions, as well as from last year's rollout of a new (and free) online docket. These are very positive developments that enhance transparency and help advocates serve their clients."

>> Sarah Harris, partner at Williams & Connolly: "The memo didn't have any big surprises. But it's still a great move by the clerk's office that should reduce a lot of filing errors and help level the playing field for amici who can't afford printers like Wilson-Epes (who are good about ensuring compliance with many of these rules). Plenty of amici do not appear regularly before the court and are unaware of rules like the 10-day cert-stage notice requirement, which can easily require a lot of paper and motions if you aren't careful. Likewise, I thought it was helpful for the court to spell out in more detail the disclosure rule for non-amici who finance amicus briefs."

>> Andrew Pincus, partner at Mayer Brown: "This is the thing that stood out to me; perhaps others were aware of it: 'It is permissible for a single attorney to serve as counsel of record with respect to more than one amicus brief in a particular case.' "I still wonder whether it would be a good idea for any lawyer to do so. Unless addressing totally different issues, wouldn't the court think the lawyer and client found some other lawyer so they could have more words? I would worry it would create some skepticism in the reader."

>> Anthony Franze, counsel at Arnold & Porter, who has written about amicus practice: "In addition to reiterating many of the existing rules, the memo seems aimed at addressing some annoying practices, like counsel thanking non-attorneys who helped with the brief, amici seeking to join a brief after it is filed, overly long statements of interest, and briefs that unnecessarily duplicate sections (the questions presented or the facts) already covered in the party briefs. Another theme in the memo is cutting down on paper. The memo clarifies that in a consolidated case on the merits only one amicus brief needs to be filed rather than an identical brief in each of the consolidated actions. It also makes clear that amici do not need to submit the consent letters to the clerk, and reiterates that amici cannot submit reply briefs or briefs in support of rehearing. And notable for those who do death penalty work, the guidance states that amicus briefs in support of emergency applications are 'strongly discouraged.'" —Marcia Coyle

Just 'Affirmed'? Tell Us More

A number of intellectual property law professors and practitioners have criticized the apparent growing use of Rule 36 "affirmances" by the U.S. Court of Appeals for the Federal Circuit. Some claim the court is using it as a "docket management tool in order to decide cases quickly." Others say that none of the regional circuit courts use similar rules as extensively as the Federal Circuit—close to half of all cases—"particularly with respect to novel and controversial issues."

But the Supreme Court has resisted recent efforts to persuade the justices to take a close look at the practice. Patent holder Straight Path IP Group believes its infringement appeal against Apple and Cisco Systems is the right vehicle.

Rule 36 permits summary affirmances in cases raising only questions of law where the panel determines that "an opinion would have no precedential value" and "a judgment or decision has been entered without an error of law."

Straight Path's petition bluntly states its frustration with the rule. Appealing an unfavorable district court decision, the company filed a 54-page principal brief and a 38-page reply brief, wrote its high court counsel, Nathan Lewin (at left) of Lewin & Lewin. Its opponents, Apple and Cisco, filed briefs totaling 110 pages. "Less than two weeks after oral argument, a Federal Circuit panel issued a decision that stated, in toto, 'AFFIRMED. See Fed. Cir. R. 36.'"

Lewin urged the justices to decide whether Rule 36(e) violates the Fifth Amendment due process by authorizing Federal Circuit panels to affirm, with no explanation, district court judgments resolving only issues of law. He argues the practice conflicts with local rules and practices of every circuit court except the Fifth, Eighth and Tenth circuits.

"I tried to draft a petition that was, at the same time, narrow enough to attract four votes—limited to an appeal raising only issues of law—and broad enough to be a shot across the bow at the invidious Rule 36 practice of the Federal Circuit judges," said Lewin, who was retained to file the cert petition after the Federal Circuit decision.

Not surprisingly, lawyers for Apple and Cisco—Hogan Lovells partner Catherine Stetson and Desmarais partner John Desmarais, respectively—oppose high court review.

Stetson argues: "The question presented involves no conflict on a question of federal law. It is common to dispose of cases by brief summary affirmance, and every circuit to consider the question has affirmed the legality of this practice." Stetson continued: "The fact that different circuits' local rules use slightly different verbal formulations when issuing summary affirmances does not establish disagreement on a question of federal law; it just shows a variation in local practice, and an inconsequential one at that."

Lewin has yet to file a reply brief. "As my reply will indicate, I think that Apple's tantrum only proves that the Federal Circuit panel should have been required to explain its ruling." —Marcia Coyle

Supreme Court Headlines: What We're Reading

• At SCOTUS, a Line and a Lesson for Our Democracy. "It is my hope that the court considers a fairer way for the public to experience oral arguments, one that doesn't debase both our democracy and those who attempt to observe it." [NLJ]

• John Roberts Won't Let Mitch McConnell Derail a Trump Impeachment Trial. "Given his deep commitment to professionalism, John Roberts can be counted on to deflect any behind-the-scenes pressures for speed. These inclinations would be reinforced, moreover, by the recent controversy surrounding the appointment of Brett Kavanaugh." [Slate]

• Supreme Court Lets Climate Change Lawsuit Proceed. "The Supreme Court on Tuesday rejected a request from more than two dozen multinational energy companies to block a state court lawsuit brought by the city of Baltimore seeking to hold the companies accountable for their role in changing the earth's climate." [NYT] The companies were represented by a team from Gibson, Dunn & Crutcher. Justice Alito recused in Tuesday's order.

• Federalist Society Event Will Feature Kavanaugh, Gorsuch and a Raft of Trump-Appointed Judges. The Federalist Society, which has played a central role in the Trump administration's judicial selection process, including the Gorsuch and Kavanaugh nominations, will hold its annual convention from Nov. 14 through Nov. 16 at the Mayflower Hotel in Washington. [NLJ]

• The Racial Pessimism of Clarence Thomas. "One thing to understand about Thomas's conservatism is that there's a strong belief in patriarchy. He has said quite plainly that the salvation of the black race depends upon black men. This is one area where his conservatism and black nationalism converge. And yet, unlike many conservatives, he's not that much of an individualist because he's very much rooted in black communalist traditions. And he doesn't really believe in colorblindness. All of this distinguishes him from most white conservatives," Corey Robin, author of the book "The Enigma of Clarence Thomas," says. [Vox]

• Sotomayor First—and Second—Justice to Break 'Quiet Time' Rule. "Justice Sonia Sotomayor twice violated the Supreme Court's new guidance allowing attorneys two minutes of argument time before justices are allowed to jump in to ask questions." [Bloomberg Law] CNN has more here.

• The Court That Could Decide the Future of Trump's Presidency. "The DC Circuit's portfolio has long put it at the center of disputes over potential White House wrongdoing, such as during Watergate in the Nixon years, the Iran-Contra scandal of the Reagan administration and Independent Counsel Ken Starr's investigation of President Bill Clinton. Now, it could help determine the fate of legal issues surrounding the House Democrats' impeachment inquiry and Trump's desire to withhold personal information and limit his allies from cooperating with investigators." [CNN]

• Justice Kagan: Supreme Court Is More Complicated Than Divided Public Knows. "Justice Elena Kagan said a common misconception about the U.S. Supreme Court is that she and her colleagues are partisan actors simply carrying ideological water for the presidents who appointed them." [MPR] The Star Tribune has more here.