Welcome to Supreme Court Brief and Day 2 of the December argument session. Lisa Blatt makes her 38th argument this morning—and first as a Williams & Connolly partner. We've got a snapshot of the arguments from parties and friends. Plus: Big Law filed more than a dozen briefs Monday backing reproductive rights in this term's abortion clinic case, and one brief carries the signatures of 368 female lawyers sharing personal stories. Scroll down for highlights from the latest annual Arnold & Porter Kaye Scholer snapshot of the court's amicus docket. 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.

 

Superfund Preemption Case Could Lead to 'Mad Tea Party' Chaos, Supreme Court Is Told

Atlantic Richfield v. Christian, a major environmental Superfund case set for argument today, could have major ramifications—not just affecting hazardous waste cleanups but possibly even thwarting climate change litigation brought by states.

At issue is whether state laws protecting property owners from environmental harm are preempted by the 1980 federal CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) law.

Atlantic Richfield, which owns the sprawling Anaconda copper smelting site in Montana, vastly prefers the federal law and Environmental Protection Agency supervision, rather than myriad state law claims that could, according to the company's brief, "shred EPA's plans and impose different, and potentially detrimental, multimillion-dollar cleanups."

Some of the key points:

>> Veteran advocate Lisa Blatt (above) will argue on behalf of Atlantic Richfield, her 38th Supreme Court argument, and her first as a partner at Williams & Connolly, which she joined in February. She has argued more Supreme Court cases than any woman in history.

>> Harvard Law School professor Richard Lazarus, an environmental law expert, said Blatt may be on the path to victory in part because she persuaded the high court to review the case in the first place, even though the U.S. Solicitor General Noel Francisco urged the justices to take a pass. In a Harvard preview of the current Supreme Court term, Lazarus also noted that Blatt often wins the cases she takes on.

>> Representing Gregory Christian and other downwind land owners who sued for remediation in Montana state courts is Joseph Palmore, co-chairman of Morrison & Foerster's Appellate and Supreme Court Practice Group. In his brief, Palmore said Atlantic Richfield wrongly interprets CERCLA to "nullify state law, confer permanent polluter immunity, and destroy private property rights," insisting that the law does not preclude state court action.

>> Palmore's reference to property rights points up an unusual tension between business interests and property rights. The Pacific Legal Foundation's brief sides with the aggrieved land owners and environmentalists. Jonathan Wood, senior attorney of the foundation, said, "Our mission of protecting individual liberty and property rights means that we will sometimes side with business, sometimes with conservationists."

>> States' rights are also at stake, said Virginia Attorney General Mark Herring, whose solicitor general Toby Heytens filed a brief against Atlantic Richfield on behalf of Virginia and 14 other states. "States have a strong interest in ensuring that their citizens (and the state itself) are compensated for injuries caused by releases of hazardous materials," Herring said in a statement.

Among the dozens of briefs in the case, the Washington Legal Foundation's in favor of Atlantic Richfield offers the most colorful metaphor. If the landowners win, foundation lawyer Corbin Barthold wrote, they could insist on multiple new remediation strategies at superfund sites, "each of which may impede and uproot the others. Like Disney's Mad Tea Party ride, this regime will move a lot around while taking no one anywhere." —Tony Mauro

 

Female Lawyers Tell SCOTUS About Their Own Abortions

We're going through the new amicus briefs that arrived yesterday in June Medical Services v. Rebekah Gee, the abortion clinic case from Louisiana that the court will hear on March 4. The amicus briefs supporting the petitioner were due Monday, and the court set Jan. 2 as the deadline for briefs supporting the respondent.

Major U.S. law firms on Monday filed more than a dozen briefs backing the petitioners, who are challenging a Louisiana law that they contend would make it more difficult for physicians to perform abortions. The law requires doctors performing abortions to have hospital admitting privileges within 30 miles. The justices struck down a similar Texas law in 2016 in the case Whole Woman's Health v. Hellerstedt.

A team from Paul, Weiss, Rifkind, Wharton & Garrison, including Claudia Hammerman as counsel of record, filed a brief for 368 female professionals in law who are telling the Supreme Court about their own abortions. The brief mirrors one that the firm filed in 2016 in the Whole Woman's Health case; the earlier brief had 113 signatories.

"Amici submit this brief, some at immeasurable personal and professional cost, for the countless others who may not have the tools to navigate the legal system to secure all that the Constitution and the Court have rightfully promised them," Hammerman wrote in Monday's filing on behalf of Big Law partners and associates, law professors, public defenders, in-house counsel and many others.

A team from Dechert, including Linda Goldstein as counsel of record, filed a brief on behalf of Whole Woman's Health. "If providers such as amici are no longer permitted to enforce the constitutional rights of their patients, those patients' voices will likely go unheard and their rights un-vindicated," Goldstein wrote.

Lawyers from Crowell & Moring, including Judy Perry Martinez as counsel of record, filed a brief from the American Bar Association.

"The Fifth Circuit here departed from the legal analysis prescribed by Whole Woman's Health," Martinez wrote. "And while the Fifth Circuit formally acknowledged its limited scope of review of factual matters, the decision below reflects that the court revisited and revised the district court's factual findings in a manner that resulted in that court distinguishing, rather than following, the precedent set by Whole Woman's Health."

Other firms that filed amicus briefs backing the petitioners included: Hogan Lovells; Gibson, Dunn & Crutcher; Arnold & Porter Kaye Scholer; Dentons; Munger, Tolles & Olson; Covington & Burling; Orrick, Herrington & Sutcliffe; Kramer Levin Naftalis & Frankel; and Lieff Cabraser Heimann & Bernstein. —Mike Scarcella

 

Fewer Friends at the High Court

Writing and submitting friend-of-the-court or amicus curiae briefs remains a significant part of Supreme Court practice. But last term saw a drop in the number of amicus briefs filed with the court.

That's the conclusion of the ninth annual report of the amicus docket produced by Arnold & Porter court aficionados Anthony Franze and Reeves Anderson, and published exclusively in Supreme Court Brief.

In the 2017-18 term, 100 percent of cases at the merits stage were accompanied by amicus briefs, at an average of 14 amicus briefs per case. But in the 2018-19 term, the average was 11 briefs, and friends of the court filed briefs in 96 percent of argued cases.

The report suggests that the drop is "the result of fewer marquee cases that tend to attract more 'friends.'" And that, in turn, may be the result of the fact that last term began with only eight justices, "perhaps tempering the court's desire to decide the kinds of blockbuster issues that draw the most amicus attention."

The case that drew the most amicus briefs—47, to be exact—was American Legion v. American Humanist Association, the so-called "Peace Cross" case. In the previous term Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission drew twice as many amicus briefs.

"The 2018–19 term will not go down in the record books for amicus curiae practice," the report concludes. "But 2018–19 reflects that even in a calm year, friends of the court are a mainstay in Supreme Court practice. While the justices have taken steps to shorten briefs and provide further guidance on amicus submissions, they have not imposed any new limits to stem the annual tidal wave of amicus briefs. Love them or hate them, amici are here to stay, and the justices continue to look to their 'friends' for support."

The report also discusses the number of amicus briefs that were cited in written opinions, and which justices cited them the most (Elena Kagan) and the least (Clarence Thomas.) And it highlights the court's recent changes and clarifications for amicus briefing. —Tony Mauro

 

Supreme Court Headlines: What We're Reading

•  Will John Roberts Constrain Trump? "The final weeks of November may be remembered as the moment when Donald Trump crushed the last vestiges of resistance to him in the Republican Party. The sole remaining question is whether that conquest extends to the Republican-appointed justices on the Supreme Court—especially the chief justice, John Roberts." [The Atlantic]

•  How John Roberts Might Oversee a Senate Impeachment Trial. "Roberts could, if he were so inclined, assume an outsized role in Trump's fate. But that would be a break from precedent and contradict Roberts' own reserved manner. His predecessor in the role, Chief Justice William Rehnquist who oversaw the 1999 Bill Clinton impeachment trial, refused to assert great authority, saying in one episode he would claim authority only when 'its exercise were clearly warranted.'" [CNN]

•  A Tiny Town's Long Struggle to Rid Itself of Toxic Waste Reaches the Supreme Court. "After more than a decade of court battles, the Supreme Court on Tuesday will hear residents' case against the property's current owner. Theirs is more than just a David vs. Goliath confrontation — a rural community of 700 against Arco, a subsidiary of the oil giant BP—because of its potential for upending one of the nation's key environmental laws." [The Washington Post]

•  Gorsuch and Alito Question NY's 'Herculean' Effort to Prevent Gun Ruling. Justices Neil Gorsuch and Samuel Alito Jr. on Monday appeared to strive to save the U.S. Supreme Court's first major gun-rights case in nearly a decade from disappearing without a ruling on the scope of the Second Amendment. [NLJ] More hereat the NYT.

•  Big Law Associate Snags Rare Chance to Argue at Supreme Court. "The case could alter the fate of corporate tax refunds that can run into the hundreds of millions of dollars and help resolve a dispute in lower circuit courts over what rule governs these fights." Mitchell Reich, a senior associate at Hogan Lovells, will make his debut this morning. [Bloomberg Law]