Welcome to Supreme Court Brief! The justices' two-week break from arguments is almost over. They are back on the bench Nov. 4 for the next argument round. We spoke with an ERISA lawyer about the high court's seemingly insatiable appetite for that challenging law. Justice Neil Gorsuch shares a treasured memento of his first opinion. And a billion-dollar Affordable Care Act case has lawyers pleading for more argument time. 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.

ERISA Bonanza—But Are the Cases 'Dreary'?

The new term is something of a bonanza for lawyers interested in that complicated, wonkiest of laws—the Employee Retirement Income Security Act, better known as ERISA. The justices will hear arguments in three ERISA cases, the first of the trio next week, and may add one or two more cases before the term is over.

And that is a veritable feast for ERISA lawyers such as Mark Smith, a Washington-based partner in Eversheds Sutherland.

Smith and other Eversheds partners put together an annual update on Supreme Court employee benefits cases that is full of interesting data about the cases and the justices who are writing the opinions. He lightened the topic with a collection of comments by the justices about getting an ERISA opinion-writing assignment.

The late Chief Justice William Rehnquist (above), in his 2003 annual talk to the U.S. Court of Appeals for the Fourth Circuit, described ERISA as "The Employee Retirement, etc., law," saying that "you get so used to these acronyms that you forget what they stand for." As [a published press report] noted, the chief justice said that "[t]he thing that stands out about [ERISA cases] is that they're dreary," and the only reason they grant review to them was "duty, not choice."

Justice Ruth Bader Ginsburg, whose first opinion as a justice was in an ERISA case, once referred to ERISA cases as "sloughly,"while Justice Sandra Day O'Connor apparently preferred "tedious." Justice Clarence Thomas remains the court's leading author of employee benefits opinions, according to the firm's report. "About half of the comments were things I just noticed and picked up over the years and others we went looking and found a few more," Smith said.

The firm's October 2019 update states that since 1975, the Supreme Court has issued opinions in 130 employee benefits cases, including 67 ERISA decisions. Smith said ERISA is "one of the most complex federal statutes that Congress has enacted. It continues to generate a material portion of the caseload of the lower federal courts."

The three cases already slotted for decision this term involve stock drop claims, determining actual knowledge of fiduciary breaches, and potential losses even when a plan is overfunded. All three have drawn top Supreme Court advocates to press the arguments.

>>First up is Retirement Plans Committee of IBM v. Jander on Nov. 6. Kirkland & Ellis partner Paul Clement represents the IBM committee; Samuel Bonderoff of New York's Zamansky is counsel to Larry Jander. Among the lawyers filing amicus briefs are Mayer Brown partner Brian Netter, Gupta Wessler partner Matthew Wessler, and Proskauer Rose partner Russell Hirschhorn.

>>  Intel Corp. Investment Policy Committee v. Sulyma, with Munger, Tolles & Olson partner Donald Verrilli Jr. representing Intel and Gupta Wessler's Matthew Wessler, counsel to Sulyma; is set for argument Dec. 4. There's no argument date yet for Thole v. U.S. Bank N.A., with Stris & Maher partner Peter Stris, counsel to Thole, and Morrison & Foerster partner Joseph Palmore, representing U.S. Bank. —Marcia Coyle

ACA Defenders Seek Expanded Argument Time in Multi-Billion Dollar Dispute

As we await word from the Fifth Circuit about the lawfulness of the Affordable Care Act, another big health care case is taking shape at the Supreme Court.

Lawyers in that case are asking the justices to expand and divide argument time in a consolidated trio of cases that confront the U.S. government's obligations to make certain risk payments to health providers. Billions of dollars are on the line in the cases Maine Community Health Options v. U.S.; Moda Health Plan Inc. v. U.S.; and Land of Lincoln Mutual Health Insurance v. U.S.

The court earlier set one hour of argument for Dec. 10, but the plaintiffs' lawyers are looking for either 70 or 80 minutes of time. In either scenario, Paul Clement of Kirkland & Ellis would argue for Moda, and Jonathan Massey of Washington's Massey & Gail would advocate for Land of Lincoln. Stephen McBrady of Crowell & Moring is counsel of record to Maine Community Health.

The challengers contend the government was on the hook to make so-called "risk corridor" payments to health providers for three years at the start of Obamacare. The payments were meant to induce companies to participate in the health program—providing some ability to reduce premiums. "This court has previously enlarged argument time in cases addressing matters of extraordinary public importance," lawyers for the health companies told the justices.

The health companies' lawyers argue that the Federal Circuit decision backing the U.S. government "upsets substantial—and settled—investment-backed expectations and undermines the government's reliability as a business partner, both inside and outside the healthcare industry." The U.S. Justice Department did not take a position on expanding the argument time. —Mike Scarcella

First Justice Who Joined Gorsuch's First Opinion

At the National Constitution Center on October 27, Justice Neil Gorsuch extolled retired Justice Anthony Kennedy, his mentor and former boss, as Kennedy received the center's Liberty Award.

In so doing, Gorsuch revealed a small vignette of how supportive Kennedy was when Gorsuch penned his first Supreme Court opinion in June 2017. It was Henson v. Santander Consumer USA Inc., which Gorsuch said was the kind of "pretty easy case" that junior justices are given. "Justice Kennedy wanted to beat the rest of his colleagues to the punch and be the first to join the opinion," Gorsuch said. But by the time Gorsuch circulated the draft, Kennedy had gone home.

"Justice Kennedy still wouldn't risk waiting to get a copy until the next morning, because somebody else might join first," Gorsuch said. "So what did he do? He asked to have someone drive the opinion out to his home that night. And when I came in the next morning, I had Justice Kennedy's hand-signed 'join memo' in my inbox. That was the first join memo I received as a justice. I keep it in the top drawer of my desk and I will always treasure it." —Tony Mauro

Supreme Court Headlines: What We're Reading

• 'Unquestionably Private': DOJ Contends FBI's Kavanaugh File Must Remain Confidential. The character of the information in the FBI supplemental background investigation "is highly personal and could subject Judge Kavanaugh and others to harassment or embarrassment in their private lives," Justice Department lawyers said in responding to a FOIA lawsuit. The government also asserts a presidential communications privilege must block any disclosure. [NLJ]

• Is It Ethical for Ginsburg to Accept a $1M Prize? Yes, But It's Hard to Explain. "For the sake of transparency and public confidence, a Supreme Court code of conduct would eliminate the need to parse through multiple statutes and regulations, and to consult an unpublished, hard-to-find resolution, in order to reach a favorable conclusion about the ethics of a Supreme Court justice's conduct," law prof Steven Lubet writes. [The Conversation]

• "The Idea Was To Get Rid Of Me": Justice Clarence Thomas Speaks About His Confirmation Fight in New Documentary. "This is the wrong black guy, he has to be destroyed," Thomas says at one point in the film, characterizing those who opposed his nomination to the Supreme Court nomination in 1991. "Just say it. And now at least we're honest with each other."[Time]

• Notorious RBG? As a Lawyer Arguing Before the Supreme Court, She Received Only So-So Marks From One Justice. "Ruth Bader Ginsburg is a revered Supreme Court justice who spent her early legal career fighting for women's rights. But one justice gave her original performance before the high court only passing marks. 'Prof. Ruth Ginsburg. C-plus,' Justice Harry Blackmun wrote on loose-leaf paper during her first Supreme Court argument, Frontiero v. Laird, in January 1973. 'Very precise. Female. Reads.'" [WSJ]

• How Obama's Border Enforcer Janet Napolitano Is Fighting Trump on Immigration at the Supreme Court. "Janet Napolitano used to set records for the number of people she deported from the United States in a single year, angering immigrant-rights groups. In her new role, the former Homeland Security secretary under President Barack Obama has those groups on her side." Napolitano (at left) said: "I saw [DACA] first from the vantage point of being the Cabinet official responsible for immigration and immigration policy," Napolitano said. "To then seeing the benefits the program created. To now, being at the university, where we have all of these DACA recipients as part of the university community." [CNBC]

• Title VII and the Real 'Massive Social Upheaval' We All Should Fear. "Title VII directed that we all should have the chance to succeed based on our own abilities, not our sex. Clarifying that the same is true for LGBTQ workers is simply the latest application of a law that long ago transformed our workplaces, and by extension, our very culture. Giving the green light to employers to fire people because of their sex, simply because they are LGBTQ, is the outcome that would cause the kind of 'massive social upheaval' all of us should fear," Ria Tabacco Mar writes. [National Law Journal]

• Supreme Court Justices Talk an Awful Lot During Oral Arguments. "Supreme Court Justices now speak more while the parties [at oral arguments] speak less, they interrupt both their colleagues and the parties (especially women) more frequently than in the past, and some of their questions advocate for positions rather than seek information," according to a Boston College Law Review article from Terry Skolnik. [Quartz]

• A Constitutional Case for Gun Control. "The March for Our Lives brief is a reminder to the Court that it cannot ignore the world it creates through its interpretation of the Second Amendment. The brief asks the Court to confront the consequences of the gun lobby's myopic approach, and it does so by bringing in the voices of young people whose lives have been upended by gun violence." [The Atlantic] Read the amicus brief, filed by Hogan Lovells, here.