Welcome to Supreme Court Brief. The justices this morning hear arguments in an admiralty law case—their fourth and in two years. We spoke with an admiralty law scholar who wonders if this area of the law is back in vogue at the high court or just a fluke. Veteran high court advocates Carter Phillips of Sidley Austin and Thomas Goldstein of Goldstein & Russell will face off. Two more Supreme Court reform proposals, suggesting "a radical rethinking of how the court operates," join a growing list. We take a brief look at both. And Justice Gorsuch plays New York police officer in a Fourth Amendment argument. 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.

 

The Justices Renew Interest in Admiralty Law

 

The justices hear arguments this morning in their fourth admiralty case in the past two years—a "remarkable" number in a short time and after a long hiatus of such cases, according to Robert Jarvis of Nova Southeastern University law school and the past editor of the Journal of maritime Law and Commerce.

Until the 1970s, admiralty cases were bountiful on the high court's docket, Jarvis said. Admiralty was a large part of Boston and New York practices. There was regularly a justice on the bench who had had admiralty practice experience, or a justice who made it clear this area of law was of interest. Justice Hugo Black, for example, had no background in admiralty but was interested in the cases.

Justices who got interested in the subject discovered it was one of the few places after Erie Railroad Co. v. Tompkins where they could make federal common law and were not bound by state law or anything else, Jarvis said.

But today, none of the justices has an admiralty background or a clear interest in the law.

"There's nobody to pitch a cert petition to," he said. "And yet, with the ascension of justices Neil Gorsuch and Brett Kavanaugh, all of a sudden, they're taking admiralty cases. Either the justices can't agree on anything else and are taking these cases because they're kind of neutral, or they have suddenly rediscovered admiralty and they are fun cases. Once you're exposed to admiralty, you find this is cool; there's lots of history, tradition and running room for a judge."

There is no discernible theme in the recent four cases that reveal why the justices have new interest, according to Jarvis. The cases are "just so odd," he said. And there has been no resurgence in admiralty law practices. The admiralty bar is small, perhaps a couple of thousand lawyers.

This morning's case, Citgo Asphalt Refining Co. v. Frescati Shipping Co. and the United States, asks the justices to decide whether a "safe berth" clause in a charter parties (contract) is a guarantee of a ship's safety or a duty of due diligence by the charterer to send the owner's ship to a safe dock.

Sidley Austin partner Carter Phillips will argue on behalf of Citgo. Goldstein & Russell partner Thomas Goldstein represents Frescati. Assistant to the Solicitor General Erica Ross will argue for the United States.

Jarvis suggests the justices' recent interest could just be a "fluke," simply the timing of admiralty cases getting to the high court. "Especially in a period where we have a declining docket, for admiralty cases to be getting the kind of play they are getting is absolutely remarkable," he said. "We'll see if it continues." —Marcia Coyle

 

A Supreme Court 'Lottery' (And Other Proposals)

 

Two law professors are calling for a "radical rethinking" of how the U.S. Supreme Court has operated for the past two centuries.

The retirement of Justice Anthony Kennedy and confirmation of Brett Kavanaugh created a new conservative majority that could vote along party lines more consistently than ever before, and that dynamic threatens the high court's legitimacy, according Daniel Epps of Washington University in St. Louis and Ganesh Sitaraman of Vanderbilt Law School.

"We can save what is good about the court—but only if we are willing to transform the court," they wrote in Yale Law Journal last month. To that end, they offer two proposals: the "Supreme Court lottery" and the "balanced bench."

>> Supreme Court "lottery": Every federal appeals court judge would also be appointed as an associate justice of the Supreme Court and would hear cases as a randomly selected panel of nine. After working from home chambers, they would travel to Washington to hear oral arguments for two weeks, after which another set of judges would replace them. By law, each panel would be prohibited from having more than five justices nominated by a president of a single political party, and only a 6-3 supermajority could hold a federal statute (and possibly state statutes, depending on how one weighs federalism values) unconstitutional.

>> "Balanced bench": The Supreme Court would start with 10 justices. Five would be affiliated with the Democratic Party, and five with the Republican Party. Those ten would then select five additional justices chosen from current circuit (or possibly district) court judges. The 10 partisan-affiliated justices would need to select the additional five justices unanimously (or at least by a strong supermajority requirement). These additional justices would be chosen two years in advance, for one-year terms. And if the justices failed to agree on a slate of additional colleagues, the Supreme Court would lack a quorum and could not hear any cases for that year.

The Epps-Sitaraman proposals got a shout-out from Democratic presidential candidate Pete Buttigieg during the last campaign debate, which featured one question about the Supreme Court. They also drew a critical response from Duke Law's Stephen Sachs, who said their proposals were an attempt to remake the high court in Justice Kennedy's image.

"Indeed, the strangest thing about these proposals is the view that the court needs saving at all," Sachs wrote in a response to Epps and Sitaraman. "The last three years reflect not 'an unprecedented legitimacy crisis,' but a partisan realignment…That it seems like a crisis to many people is itself reflective of deep problems in our legal culture, which too often looks to judges for political guidance rather than for the decision of cases under law." —Marcia Coyle

 

Gorsuch Channels De Niro and Pacino

 

Was Justice Neil Gosuch channeling famous actors Robert De Niro and Al Pacino during arguments Monday on police stops of cars whose owners have suspended licenses?

In asking Goldstein & Russell partner Sarah Harrington what an officer has to say at a suppression hearing to show reasonable suspicion, Gorsuch, with hand movements and a noticeable accent, said, "I'm an officer. This is what I do."

Harrington quickly quipped, "This is Kansas, not New York." Gorsuch, to laughter in the courtroom, responded. "Touche." —Marcia Coyle

 

Supreme Court Headlines: What We're Reading

 

•  Appeals Court Rejects Trump's Attempt to Withhold Tax Returns from Local Prosecutors, Setting Stage for Supreme Court Fight. "A federal appeals court on Monday rejected President Trump's effort to block New York prosecutors from accessing his tax records and Trump's sweeping claims of presidential immunity. In trying to block a subpoena for his private financial records from New York prosecutors investigating hush-money payments made before the 2016 election, Trump's attorneys have argued that as president Trump is immune not only from prosecution but from investigations." [The Washington Post] NLJ has more here. This Harry Litman op-edpredicts SCOTUS will take a pass on reviewing the 2nd Circuit's "narrow and straightforward" ruling.

•  A Linguistic Debate Over a Seemingly Innocuous Phrase Is Raging at the Supreme Court. "The term is 'renders inadmissible' and, based on the debate in the courtroom, it's actually nearly incomprehensible. How the two words are interpreted will affect whether some lawful permanent residents, also known as green card holders, are eligible for cancellation of removal." Justice Stephen Breyersaid at oral argument (read the transcript here): "This statute is as obscure as any I've seen. It wasn't a genius who drafted this." [Quartz] Reuters has more here on the arguments.

•   Supreme Court Rejects Charter Appeal of Sprint Patent Verdict."Charter Communications Inc (CHTR.O) unit Time Warner Cable must pay $140 million in damages for infringing five Sprint Corp (S.N) telecommunications patents after the U.S. Supreme Court on Monday refused to hear Time Warner's appeal in the case. The justices declined to review a lower court ruling that upheld a 2017 jury verdict siding with Sprint in the dispute." [Reuters]

•  Princeton Digital Image Loses Bid for Supreme Court Argument. "The U.S. Supreme Court won't review if a district court can resume hearing a case once the Federal Circuit declines to review court's rulings that come before a final judgment." [Bloomberg Law]

•  Federal Circuit: PTO Judges Were Unconstitutionally Appointed. The administrative judges who hear challenges to patent validity at the U.S. Patent and Trademark Office are principal officers who should have been nominated by the president and confirmed by the U.S. Senate, the U.S. Court of Appeals for the Federal Circuit said last week. [NLJ]

•  High Court Declines Cushman & Wakefield Plea to Overturn Verdict. "The U.S. Supreme Court declined Nov. 4 to take up a plea from Cushman & Wakefield to overturn a $1.3 million jury verdict in an age bias case against the commercial real estate firm and will not decide whether a New York City civil rights law should have applied in the case." [Bloomberg Law]