Welcome to Supreme Court Brief and the final week of the December argument session. The court may have the first decisions of the term tomorrow. In the meantime, this morning the justices continue their enthusiasm for patents cases with a question about judicial review under the America Invents Act. We have a brief summary of the issue and amici. Justice Alito takes a not-so-subtle shot at the number of lawyers opposing a recent Justice Department application to restart federal executions. Also Massachusetts weighs in to defend its ban on certain assault weapons and its victory in the First Circuit. 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.

A Question of Judicial Review in Patent Cases

The justices' appetite for patent cases remains unabated this term. This morning, they hear arguments in a patent case raising a jurisdictional question that some observers call somewhat "in the weeds," but apparently important enough to trigger 14 amicus briefs.

The question in the case Thryv v. Click-to-Call Technologies involves the "no appeal" language in section 314(d) of the America Invents Acts for decisions by the U.S. Patent and Trademark Office to institute inter partes reviews. Does that language preclude judicial review of the office's determination that an inter partes review petition was not time barred?

The U.S. Court of Appeals for the Federal Circuit said no.

Thryv, represented by Kirkland Townsend partner Adam Charnes, disagrees, arguing that the act contains "clear and convincing indications" that Congress intended to preclude judicial review. Charnes's opponent, Daniel Geyser of Dallas's Geyser, counters, "The Federal Circuit correctly construed the statutory framework, and petitioner's theory is incompatible with the strong presumption favoring judicial review and this Court's decisions, which have already rejected the government's sweeping understanding of Section 314(d)."

U.S. Solicitor General Noel Francisco also has filed a brief supporting Thryv and reversal. The brief argues that "The text, structure, and history of the AIA demonstrate that the USPTO's Section 315(b) determinations are not reviewable."

Among those filing amicus briefs—which are nearly evenly-divided between Thryv and Click-to-Call in the case—are:

Munger, Tolles & Olson partner Donald Verrilli Jr. (Intel); Jenner & Block partner Adam Unikowski (PTAB Bar Association); Quinn Emanuel Urquhart & Sullivan partner Kathleen Sullivan (ON Semiconductor Corp.); Williams & Connolly partner Amy Saharia (Biotechnology Innovation Organization); Kramer Levin Naftalis & Frankel partner Irena Royzman (NY Intellectual Property Law Association); Covington & Burling of counsel Scott Kamholz (Pharmaceutical Research and Manufacturers of America) and King & Spalding partner Jeffrey Bucholtz (Atlanta Gas Light Company)

Alito Digs at Death Row Inmates' "17 Lawyers"

The Trump administration late Friday lost its bid to convince the Supreme Court to let the government immediately resume federal executions despite a lower-court injunction and no ruling yet on the merits of the dispute. "We expect that the Court of Appeals will render its decision with appropriate dispatch," the unsigned Supreme Court order said.

Notably, there were no dissents. Still, Justice Samuel Alito Jr., joined by Justices Neil Gorsuch and Brett Kavanaugh, wrote separately in a statement that "respected" the court's order, but said, essentially, the government will win the next time the case arrives.

"The court has expressed the hope that the Court of Appeals will proceed with 'appropriate dispatch,' and I see no reason why the Court of Appeals should not be able to decide this case, one way or the other, within the next 60 days," Alito wrote. "The question, though important, is straightforward and has already been very ably briefed in considerable detail by both the Solicitor General and by the prisoners' 17-attorney legal team."

Alito counted up the number of lawyers appearing on the prisoners' opposition papers, and sure enough the names of 17 lawyers were on the filing. But Alito did not note that those 17 lawyers were representing five separate death row inmates in the high court action.

So who are they? Hogan Lovells appellate veteran Catherine Stetson (at left) was counsel for record on the submission. She was joined by Hogan Lovells attorneys Elizabeth Hagerty, David Victorson and Pieter Van Tol. Five lawyers from Wilmer Cutler Pickering Hale and Dorr—Joshua Koppel, Arin Smith, Alan Schoenfeld, Stephanie Simon and Marguerite Colson—were also on the filing. Seven lawyers from the Philadelphia federal public defender office also appeared, in addition to Jon Jeffress of Washington's KaiserDillon.

Alito has not been subtle about his disdain for the anti-death penalty movement. In arguments in Glossip v. Gross in 2015, a challenge to a lethal injection drug, the justice told the inmate's counsel: "Let's be honest about what's going on here. Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty?"

In Friday's order, Alito applauded Noel Francisco, the U.S. solicitor general, as if he were the only Justice Department lawyer working on the case. While it's true only Francisco's name appeared on the filings in the Supreme Court, the government's legal team is, of course, much larger.

Six attorney names appeared on the government's filings in the D.C. Circuit: Jody Hunt, the head of DOJ's civil division; Jessie Liu, the U.S. attorney for D.C.; Hashim Mooppan, deputy assistant attorney general; Paul Perkins, special counsel; and civil appellate lawyers Mark Stern and Melissa Patterson.

Other firms that are participating in the D.C. Circuit litigation include Steptoe & Johnson LLP, Vinson & Elkins and King & Spalding. —Mike Scarcella

Massachusetts Defends Assault Weapons Ban

Massachusetts attorney general Maura Healey (above) on Friday urged the U.S. Supreme Court to leave in place a ruling that upheld the state's ban on assault weapons and large-capacity magazines.

"In upholding the Commonwealth's Assault Weapons Ban as consistent with the Second Amendment, the First Circuit joined six other federal courts of appeals that have affirmed the constitutionality of laws that prohibit possession of assault weapons or large-capacity magazines," Julia Kobick, an assistant attorney general and counsel of record, said in the new filing in the case Worman v. Healey.

Kobick argued the state's regulations "applied only to certain semiautomatic weapons that presented a special risk to the public and law enforcement officers."

The petition in Worman v. Healey was filed on behalf of a group of firearm owners, dealers and an advocacy organization. John Parker Sweeney, a Bradley Arant Boult Cummings partner in Washington, is lead counsel for the challengers.

"The courts below upheld Massachusetts' ban on possession of popular semiautomatic firearms and standard ammunition magazines by law-abiding, responsible citizens, infringing their right to keep and bear arms for lawful purposes, including self-defense," Sweeney wrote in the petition.

The Supreme Court on Dec. 2 heard its first major firearms case in a decade, weighing a New York regulation—now defunct—that placed certain restrictions on the movement of guns within the city. The court appeared divided over whether the controversy is moot, since New York shelved the law after the court said it would take up the case. —Mike Scarcella

Supreme Court Headlines: What We're Reading

>> Supreme Court Will Study Whether States May Require Partisan Balance for Courts. "The Supreme Court will consider whether states may require courts to be largely balanced with members of the major political parties, it announced Friday. The case comes from Delaware, where the state Constitution requires its highest courts to have no more than a bare majority of judges from one political party. For instance, the state's supreme court must be made up of three members of one party, and two of the other." [Washington Post] More here at Delaware Law Weekly. Wilson Sonsini's Michael McConnell, above, is on the team for the Delaware governor and will argue in the high court.

>> It's Emoluments Week in US Appeals Courts: Meet the Lawyers Arguing. The D.C. Circuit this morning—and Fourth Circuit on Thursday, sitting en banc—take up emoluments claims against Trump. In the D.C. Circuit today, Constitutional Accountability Center president Elizabeth Wydra (at left) faces off against DOJ's Hashim Mooppan. a leading civil appellate lawyer and former Jones Day partner. D.C. Solicitor Loren AliKhan faces Mooppan in the Fourth Circuit. [NLJ]

>> The Clarence Thomas Myth That Refuses to Die. "If there is going to be a reevaluation of one of the most powerful black figures in the US, it's time we ground it in facts, not myths. Thomas isn't despised in the black community because he's a conservative. Many dislike him because they see him as a hypocrite and a traitor." [CNN]

>> Supreme Court Won't Allow Federal Executions to Resume. "The Trump administration had asked the justices to overturn a trial judge's ruling that blocked the first four federal executions scheduled in nearly two decades." [NYT] More here at The Washington Post. Read the Supreme Court's order here.

>> Hundreds of Law Profs Declare Trump's Conduct 'Clearly Impeachable'. Hundreds of law professors from schools across the country published an open letter Friday declaring President Donald Trump's conduct involving Ukraine as "clearly impeachable," an assertion that comes after a daylong hearing earlier this week at which Republicans and Democrats sharply divided over their assessment of the president's actions. [NLJ]

>> Sex and the Text: What Could Carry the Day in the Supreme Court's Title VII Cases. "Textualism offers [Elena] Kagan a path toward persuading Chief Justice John Roberts and Justice Neil Gorsuch that an honest reading of Title VII supports the plaintiffs' argument that it's discriminatory if the basis for someone getting fired is deviation from the expectations associated with his or her sex," Georgetown law professor Nan Hunter writes. [NLJ]

>> Alex Kozinski Set to Return to 9th Circuit as Oral Advocate. A little less than two years after Alex Kozinski abruptly retired from the bench amid allegations of harassment and sexual misconduct, the former chief judge of the U.S. Court of Appeals for the Ninth Circuit is set to return today to the court as an advocate. Kozinski declined to comment. Emily Murphy, a professor at the University of California Hastings College of the Law, said: "Unwarranted media attention to [Kozinski] as a private citizen is symptomatic of our profession's complicity in vaunting status over failure of process and uncomfortable facts." [NLJ]

>> Trump Asks Supreme Court to Stop Banks from Disclosing His Financial Data. "President Donald Trump, fighting to keep details of his finances secret, asked the U.S. Supreme Court on Friday to prevent records held by Deutsche Bank AG and Capital One Financial Corp from being handed over to Democratic-led congressional panels." [Reuters] More here at New York Law Journal.