Welcome to Supreme Court Brief. The justices have wrapped up their November argument session and will return to the bench Dec. 2 for the court's major Second Amendment challenge this term. In the meantime, all eyes are on two Trump-related tax cases that recently landed at the high court. Veteran SCOTUS advocate Jay Sekulow is counsel of record on one of the two petitions. An immigration scholar chides the solicitor general and others for using "illegal" and "undocumented" in referring to DACA recipients. Plus: U.S. Attorney General Bill Barr's partisan speech at the Federalist Society included lots of snippets about the Supreme Court.

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.

Jay Sekulow Takes Trump Tax Case to Court

A familiar name to most of the justices was counsel of record on the petition filed last week by President Trump asking the court to review a federal appeals decision that upheld a state grand jury subpoena for the president's financial records.

Jay Alan Sekulow, counsel of record in Trump v. Vance, has argued 12 cases at the high court that primarily involved First Amendment speech and religion issues as well as abortion rights. The petition was one of two that arrived at the court last week confronting Trump's drive to keep his financial records secret. In the other case, William Consovoy of Washington's Consovoy McCarthy was counsel of record.

Sekulow last argued in the high court in 2008 in Pleasant Grove City, Utah v. Summum. He won a decision in which the justices said the city did not violate the First Amendment free speech clause by refusing to add a Summum religious monument in a public park that already housed a Ten Commandments monument.

The case that launched his high court practice was Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus in 1987. Sekulow represented Jews for Jesus in its First Amendment challenge to a city ordinance prohibiting all First Amendment activities in the Los Angeles International Airport. Justice Sandra Day O'Connor wrote the unanimous opinion that the ordinance was vague, overbroad and would have made the airport a "First Amendment Free Zone."

He was not as successful in defending prayer at high school football games in Santa Fe Independent School District v. Doe in 2000. Now Justice Brett Kavanaugh, then a Kirkland & Ellis partner, wrote an amicus brief backing Sekulow's client. Sekulow also wasn't successful in challenging a Washington state college scholarship for secular instruction only in 2004.

During his years before the high court, Sekulow was the top lawyer for the American Center for Law & Justice, founded by evangelist Pat Robertson, and he continues his association with that organization. On the Trump petition, Sekulow lists his affiliation with the Constitutional Litigation and Advocacy Group in Washington, D.C.

That group is a law firm with Sekulow as senior partner, joined by his son Jordan, and his longtime friend Stuart Roth, both of whom are also on the petition. The firm is one of a series of interlocking companies and organizations owned by Sekulow and his family.

The finances of what has become a profitable Sekulow empire have been the subject of several media investigations, including an early one in 2005 by the National Law Journal's Tony Mauro.

Sekulow has made numerous media appearances in recent months defending Trump, but he's still active in the high court.

This term he has filed amicus briefs as counsel of record for the American Center for Law & Justice in, among other cases, the religion case Espinoza v. Montana Dept. of Revenue, which will be argued in January; the DACA case, Department of Homeland Security v. Regents; the defamation case National Review v. Mann; and the Louisiana abortion clinic case Gee v. June Medical Services.

Consovoy, Patrick Strawbridge and Alexa Baltes, each at Consovoy McCarthy, were also identified as counsel on the petition in Sekulow filed in Trump v. Vance. Consovoy has been lead counsel in Trump's fight to block a U.S. House subpoena for his taxes. Last week, he asked the high court to stay a D.C. Circuit decision upholding that subpoena until a petition can be filed and acted upon by the justices. The justices could rule by Thursday on whether to block the congressional subpoena. —Marcia Coyle

Not Illegal, Not Undocumented, But 'DACAmented'

In last week's arguments on the legality of the Trump administration's plan to rescind the Deferred Action on Children Arrivals program—known commonly as DACA—U.S. Solicitor General Noel Francisco referred to DACA recipients as "illegal aliens." California Solicitor General Michael Mongan, arguing in favor of DACA, used "undocumented" to refer to Dreamers and those who earned deferred deportation in earlier programs.

They were both wrong, said immigration scholar Michael Olivas of the University of Houston Law Center. Dreamers, he said, are "DACAmented." Olivas is not being coy. "Terminology matters," he said in a recent interview with Supreme Court Brief. "In the Supreme Court, you're supposed to use language that matters."

The term "illegal" conveys prejudice, said Olivas. "These kids have lawful presence. They are certainly Dreamers but they are not illegal and they are not undocumented. All these kids reboot themselves every two years (in the DACA program)."

Terminology such as "lawful presence," he said, characterizes certain legal privileges or legal detriments. For DACA recipients, it means work authorization on a showing of economic need, a temporary social security card and benefits under other statutes. There can be Dreamers and there can be undocumented aliens, he said.

Olivas, who joined an amicus brief supporting DACA's legality, has a longterm project of tracing immigration nomenclature, so he views the issue of naming as important. As best he has found, the first use of "undocumented" surfaced in the late 1970s.

In the Supreme Court, he said, the justices have used "illegal" and "undocumented" interchangeably and sometimes in the same opinion. In the 1982 decision, Plyler v. Doe, Justice William Brennan referred to "undocumented school-age children" and their right to an education. In the 1983 case in Martinez v. Bynum, Justice Lewis Powell Jr. used the two terms interchangeably, referring to "undocumented alien children" and "illegal alien children."

In her 2009 opinion in Mohawk Industries v. Carpenter, Justice Sonia Sotomayor was credited with the first use of "undocumented immigrant" in a high court ruling. She later explained in an interview that the word "illegal" paints with a broad brush and conveys an image of "really bad" people, criminals. "I think we should not be painting labels that say more than the situation calls for."

Olivas has a 2017 law review article with research on state occupational licensing of DACA and undocumented lawyers and other professionals, including the formation of the Dreamers Bar Association. And in late spring 2020, his new book, Perchance to DREAM: A Legal and Political History of The DREAM Act and DACA, will be published by NYU Press. —Marcia Coyle

Bill Barr Bashes 'Boumediene v. Bush' Ruling

U.S. Attorney General William Barr's speech last week at the Federalist Society grabbed a substantial amount of attention—mostly for his partisan-laced assertions that progressive challenges against President Trump were undermining the power of the executive branch. It was the second time in less than a month that Barr, widely criticized as a defense lawyer for Trump, had made questionable remarks. In an October speech on religious liberty at Notre Dame Law School, he accused "so-called progressives" of being "militant secularists."

At the Federalist Society last week, Barr railed on the progressive "resistance" to the Trump administration, saying that Democrats are "engaged in a war to cripple, by any means necessary, a duly elected government." NPR reports: "Barr's speech drew swift criticism from legal experts, some of whom decried its ideas as 'authoritarian' and 'dangerous.'"

Barr spoke at length about nationwide injunctions—he doesn't like them, as he's often said—and about the Obama-era DACA program, which the Supreme Court just heard. Barr additionally had a lot to say about the Supreme Court's 2008 ruling in Boumediene v. Bush that extended habeas rights to prisoners detained at the U.S. Navy facility at Guantanamo Bay, Cuba. Here's what he said:

>> "To my mind, the most blatant and consequential usurpation of executive power in our history was played out during the administration of President George W. Bush, when the Supreme court, in a series of cases, set itself up as the ultimate arbiter and superintendent of military decisions inherent in prosecuting a military conflict—decisions that lie at the very core of the president's discretion as commander in chief."

>> "This usurpation climaxed with the court's 2008 decision in Boumediene. There, the Supreme Court overturned hundreds of years of American, and earlier British, law and practice, which had always considered decisions as to whether to detain foreign combatants to be purely military judgments which civilian judges had no power to review. For the first time, the court ruled that foreign persons who had no connection with the United States other than being confronted by our military on the battlefield had 'due process' rights and thus have the right to habeas corpus to obtain judicial review of whether the military has a sufficient evidentiary basis to hold them."

>> "In essence, the court has taken the rules that govern our domestic criminal justice process and carried them over and superimposed them on the nation's activities when it is engaged in armed conflict with foreign enemies. This rides roughshod over a fundamental distinction that is integral to the Constitution and integral to the role played by the president in our system." —Mike Scarcella

Supreme Court Headlines: What We're Reading

These Attorneys Beat Trump's Census Citizenship Question in Court. DOJ Agreed To Pay Them Millions. The U.S. Department of Justice has now agreed to pay a total of more than $9 million in attorney fees and other costs stemming from lawsuits that successfully stopped the Trump administration's plan to include a citizenship question on the 2020 census, our federal courts colleague Jacqueline Thomsen reports. [NLJ]

House Wants Quick Ruling for Grand Jury Info, Saying Trump May Have Lied to Mueller. Douglas Letter (above), the House's top lawyer this week urged a three-judge panel at the U.S. Court of Appeals for the D.C. Circuit to quickly issue a ruling on whether they'll allow certain lawmakers to obtain grand jury materials redacted from the Mueller report, saying that information could show whether President Donald Trump was "untruthful" in his answers to then-special counsel Robert Mueller. [NLJ]

Christine Blasey Ford Says She's 'Thankful' to Have Started a Nationwide Conversation About Sexual Assault. "Christine Blasey Ford, whose allegations of sexual assault against Supreme Court Justice Brett Kavanaugh rocked his confirmation hearing last year, said Sunday that although coming forward to tell her story was traumatic, she's 'thankful' it started a larger conversation about the subject. In remarks after accepting an award from the American Civil Liberties Union in Southern California, Ford reflected on her experience testifying in front of the Senate Judiciary Committee and said she will continue the work of 'protecting sexual assault survivors and preventing sexual assault.'" [CNN] The Washington Post has more here.

Supreme Court, Finally, Takes Up 'Google v. Oracle.' The U.S. Supreme Court has jumped into a titanic copyright battle between Oracle Corp. and Google LLC with both barrels. The high court granted Google's petition for certiorari—leaving the court free to address the copyrightability of software and the defense of fair use. The court's involvement is sure to reignite a 50-year-old debate over how much, if any, software should be subject to copyright, and the contours of the fair use defense in the digital age. "This is the copyright case of the century," Stanford law professor Mark Lemley said. [NLJ]