Welcome to Supreme Court Brief and the first day of the November argument session. Fourth Amendment vehicle-search challenges are regular fare at the high court and one from Kansas is on tap at this morning's arguments. Representing the defendant, Sarah Harrington, partner at Goldstein & Russell, returns to the lectern for the first time since leaving the U.S. solicitor general's office. Plus: veteran advocate Michael Kellogg, partner at Kellogg, Hansen, Todd, Figel & Frederick, will take on the SEC in a $27 million-fight—the justices granted review in the case Friday. 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.

Kansas Case Tests Justices' 'Technological Heebie-Jeebies'

Today's argument session features the third of three Kansas arguments this term: Kansas v. Glover, which asks whether police violate the Fourth Amendment if they initiate a vehicle stop based solely on a license check revealing that the registered owner of the vehicle had a revoked driver's license.

The Kansas Supreme Court ruled that the officer who made the stop had no "articulable and reasonable suspicion" to assume that the driver was the owner, or that the driver had an invalid license. The case may sound trivial, but it has an intriguing tech privacy angle.

Sarah Harrington (above), partner at Goldstein & Russell, will argue on behalf of driver Charles Glover. She argued 20 Supreme Court cases as an assistant to the solicitor general, but this is her first argument in private practice. She snagged the representation with the Supreme Court Litigation Clinic at Harvard Law School, where she is an instructor.

Arguing for Kansas will be the state's solicitor general Toby Crouse, who argued his first Supreme Court case just last month. Michael Huston, assistant to the U.S. solicitor general will argue for the United States, siding with Kansas.

At a panel discussion before the Robert J. Dole Institute of Politics at the University of Kansas in September, Harrington and Crouse previewed the case and hinted at their strategies. Key points:

>> It can happen to you: "The rule of the Fourth Amendment is, if you can imagine it happening to you, it violates the Fourth Amendment," Crouse said. In the Glover case, he added: "The trial judge said colloquially, 'I have three cars and I don't want my daughter stopped for driving the car.' I think that's a base human interaction and certainly a hurdle that we'll have to overcome."

>> License to scan: "Many jurisdictions have automatic license plate readers that can automatically scan thousands and thousands of license plates and spit back information on the registered owners," Harrington said. "That increases dramatically the chances that people will be pulled over if they're driving their parent's car and the parent has a suspended license. Some of the more conservative members of the court have sort of technological heebie-jeebies in the privacy area. We're hopeful." A brief by the Electronic Privacy Information Center spells out how pervasive license checks are and asserts they "fall disproportionately on disadvantaged and minority communities."

>> Gorsuch could be key. "Justice Gorsuch and Justice Kavanaugh do sort of have libertarian streaks, particularly Justice Gorsuch," Harrington said. "I would like to say we're going to hope for his vote, except that when he was on the Tenth Circuit, he wrote an opinion [in 2007] basically adopting the rule" that a license check can justify a brief traffic stop. But Crouse is also not sure about Gorsuch. "I think it's one thing to apply the law that is given to you when you're sitting on the circuit court, but it's quite another when you're sitting in the driver's seat," Crouse said. —Tony Mauro

>> More reading: Three Women, 25 Men Set to Argue at Supreme Court in November. "Three of the 28 lawyers who'll argue at the U.S. Supreme Court in November are women, and five of the men who'll take the podium have already done so this term." [Bloomberg Law]

SEC Case, With No Amicus, Still Caught Justices' Eyes

When the government waives its right to respond to your petition and your petition has no veteran high-court advocates supporting amici, the already nearly impossible odds against the Supreme Court granting review get even worse. But Michael Kellogg, managing partner at Kellogg, Hansen, Todd, Figel & Frederick, beat the odds last week in a securities case with a $27 million-penalty at stake.

The justices last week said they will hear arguments in the case, Liu v. Securities and Exchange Commission. Kellogg, counsel to Charles Liu, argues in his petition that Congress never explicitly authorized the SEC to obtain disgorgement in civil enforcement proceedings.

"The relevant statutes explicitly authorize the SEC to pursue other forms of relief, including civil monetary penalties (within stated limits) and equitable relief," Kellogg wrote. "But they never mention disgorgement."

And Kellogg cites then-Judge Brett Kavanaugh's concurring opinion in a 2017 D.C. Circuit decision that stated the Supreme Court's analysis in Kokesh v. SEC undermined prior decisions approving disgorgement as remedial and a permissible equitable remedy.

The Supreme Court requested a response by the government to Kellogg's petition. U.S. Solicitor General Noel Francisco urged the justices to deny review. He argued that judicial authority to order violators of the securities laws to disgorge their ill-gotten gains derives from two sources: the Securities and Exchange Act and as part of the Sarbanes-Oxley Act of 2002.

"Congress has enacted numerous statutes that presuppose the availability of disgorgement as an equitable remedy in SEC enforcement actions," Francisco wrote in his brief in opposition.

Kellogg, a former clerk to then-Justice William H. Rehnquist, has argued 10 cases in the high court prior to the Liu matter. His last argument was in 2013, when he successfully represented American Express in American Express v. Italian Colors Restaurant, an arbitration class action waiver challenge.

The SEC broke a recent losing streak in the high court last term when the justices ruled 6-2 in the agency's favor in the case Lorenzo v. SEC. In that decision, the high court said that sending an email containing false or misleading statements with the intent to defraud violates federal securities laws even if the sender did not "make" the statements. Justice Brett Kavanaugh, who earlier took part in the case in the D.C. Circuit, was recused. Kavanaugh wrote a dissent that favored the challenger.

The justices in 2018 ruled against the SEC in a dispute over the constitutionality of administrative law judges, and the court also curbed the agency's broad view of Dodd-Frank whistleblower protections. In 2017, the agency lost a statute of limitations case involving disgorgement claims in enforcement actions. —Marcia Coyle

Supreme Court Headlines: What We're Reading

• 'Sincerest Apologies': The Twists and Turns in a SCOTUS Clean-Water Case. The term's biggest environmental challenge—County of Maui v. Hawaii Wildlife Fund—has been wrought with a series of twists and turns in recent weeks over whether the dispute has been, or will be, resolved before the justices hear arguments this week. [NLJ]

• An Alaskan Moose Hunter Beat the Odds at the Supreme Court. It Cost $1.5 Million. "[Moose hunter John] Sturgeon's 12-year, only-in-Alaska battle to travel on a forbidden hovercraft through national parkland to his favorite hunting spot cost well north of $1.5 million." [Washington Post]

• Look Who's Talking Less: Supreme Court Justices. "Under the new guideline, justices continue to participate vigorously in oral arguments, but thus far attorneys have gotten in more words than the justices have across all four segments shown in the chart—including the first three minutes after the quiet zone, the next five minutes and the following 10 minutes. This is a reversal from the 2017 and 2018 terms, when justices spoke about the same or more words than did attorneys after the first two minutes. The shift suggests that the new rule may be altering the flow of the entire oral argument session, not just the opening minutes." Also, Justice Sotomayor's not alone in breaking the new two-minute guideline. [Washington Post]

• Hillary Clinton Admits She Played a Role in RBG's Selection for Supreme Court. "I knew that of all the people who were part of the women's movement she was one of the key players because of her creative understanding of the law and her sense of commitment," said Hillary Clinton. She added, "I may have expressed an opinion or two about the people he should bring to the top of the list." [CNN] Bloomberg Law has more here.

• Why Impeachment Could Be a Nightmare for Chief Justice John Roberts. "It's not a job the reserved judge will likely relish. For Roberts, who famously said Supreme Court justices should merely 'call balls and strikes,' overseeing an impeachment trial would force him to engage very publicly in helping determine the fate of the president who has called him an 'absolute disaster.'" [Time]

• Christine Blasey Ford Speaks Out in Rare Appearance Since Kavanaugh Hearings. "I was inspired by Anita Hill when I was deciding whether to testify, but it didn't occur to me at the time that I would be inspiring anyone else," Ford said in remarks as she accepted an award from the Silicon Valley chapter of the YWCA. [CBS]

• Purdue Says SCOTUS Lacks Jurisdiction to Rule on Sackler Money Transfers. OxyContin manufacturer Purdue Pharma asked the U.S. Supreme Court to toss out the state of Arizona's proposed filing in an attempt to "claw back" billions of dollars in transfers from its founders, the Sackler family. Read the filing from Davis Polk & Wardwell. [NLJ]

• U.S. Seeks Supreme Court Review of Fannie-Freddie Profit Sweep. "The Trump administration asked the U.S. Supreme Court to toss out a lawsuit by Fannie Mae and Freddie Mac investors that challenged the federal government's hoarding of nearly all the mortgage giants' profits." [Bloomberg]

• Gorsuch, Sotomayor Boost 2nd Circuit Efforts to Engage Communities, Revive Civic Education. "I think we are facing a crisis," Gorsuch told a packed courtroom in the Thurgood Marshall Courthouse at Foley Square last week. "We have lost the art of how to talk to one another." [New York Law Journal]