Welcome to Supreme Court Brief. Opinions could be on tap this morning and tomorrow, too. Kirkland & Ellis has bragging rights for two reasons today: Veteran Paul Clement is making his 99th argument and partner K. Winn Allen, his first—and they are doing it in rare back-to-back cases. O'Melveny & Myers's Kendall Turner, also making a debut, faces Allen. Plus: Eric Feigin is stepping up to fill Michael Dreeben's former position—deputy solicitor general handling criminal cases. 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.

 

After Paul Clement Makes 99th, Two Debuts

Kirkland & Ellis has a rare double-header this morning as veteran advocate Paul Clement will make his 99th argument—followed by a first-time Supreme Court advocate, K. Winn Allen, stepping up to the lectern.

Clement will argue in the first case on behalf of health insurers in the combined cases Maine Community Health Options v. United States; Land of Lincoln Mutual Health v, United States, and Moda Health Plan Inc. v. United States. He has argued more cases in the last two decades than any lawyer inside or outside government.

In the next and starkly different case—Holguin-Hernandez v. United States—his Kirkland partner Allen, a former clerk to Justice Samuel Alito Jr., will stand before the justices as court-appointed amicus defending the decision of the lower court.

"I got a call one day from Justice Alito in June who asked if I'd be willing to take on this assignment. I was very surprised and honored and grateful for the opportunity," Allen told the Supreme Court Brief.

Allen said he won't have any special charms at the lectern today. "But I'm obsessive in making sure what I take up to the podium is enough," he said. Allen remarked that he doesn't want a "huge" binder—but he won't appear with nothing, like Clement does. That "intimidates me," Allen said.

To prepare for a criminal case—Allen is a civil litigator—he said he spent a lot of time re-reading cases he had not given much time to since he clerked. "It actually was a lot of fun," Allen said.

Allen's opponent, O'Melveny & Myers counsel Kendall Turner, a former clerk to Justice Stephen Breyer, also will be making her first high court argument on behalf of Gonzalo Holguin-Hernandez.

Turner is one of three women arguing in December at the high court—compared to 29 male advocates. "I am grateful to the many people who have mentored me and allowed me to have this rare and exciting opportunity," Turner said in a statement. "I wouldn't be here without them."

At stake in Clement's case is the claim by his clients that the government is liable for an estimated $12 billion that the government was mandated to pay them for the first three years of the Affordable Care Act in order to induce them to participate in health insurance exchanges and to reduce premiums.

Congress used appropriations riders to block funding of these so-called risk-corridor payments—after the insurers had performed. Clement argues that the government's obligation to pay was not repealed or extinguished by the appropriations riders. The U.S. Court of Appeals for the Federal Circuit disagreed.

The Holguin-Hernandez case asks the justices if a criminal defendant must lodge a formal objection after his sentence has been pronounced to invoke appellate reasonableness review of the sentence's length.

Turner argues that the Fifth Circuit's objection requirement is wrong and the United States agrees, but they part company on the government's argument that the appellate court should have applied plain error review. Allen is defending the Fifth Circuit's objection requirement. —Marcia Coyle

 

Filling Michael Dreeben's Shoes

It's official: Eric Feigin, a veteran of the solicitor general's office, has been appointed as deputy solicitor general handling the government's criminal docket, succeeding Michael Dreeben, who retired in June and has been named a partner at O'Melveny & Myers.

Feigin has argued 22 cases before the high court since he joined the solicitor general's office as an assistant in 2010. Before that, he clerked for Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit and for Justice Stephen Breyer in 2007 and 2008. He was an associate at Robbins, Russell, Englert, Orseck, Untereiner & Sauber before joining the government.

Feigin's promotion was expected, in part because he supervised the government's criminal cases during Dreeben's two-year stint as part of Robert Mueller's legal team investigating Russian meddling in U.S. elections.

"Eric came up through the ranks of the SG's office and has deep knowledge of criminal law and the Justice Department's institutional values and traditions," Dreeben said in an interview. "This makes him ideally suited to carry on the office's mission of representing the United States in the Supreme Court. His wit and humility will also serve him well in his dealings with the criminal division and the United States attorneys."

In addition to the criminal cases Feigin has argued, he also represented the government in high-profile disputes including the First Amendment case Reed v. Gilbert in 2014 and Star Athletica, LLC v. Varsity Brands, Inc., a copyright case, in 2016. —Tony Mauro

 

Supreme Court Headlines: What We're Reading

>> SG, PTO Say It's Almost Time to Revisit Patent Eligibility. The Solicitor General's Office has spoken: A re-think of the Supreme Court's Section 101 jurisprudence is "amply warranted." Just not quite yet, our colleague Scott Graham reports. [NLJ]

>> U.S. Supreme Court rejects Arizona opioid case against Purdue, Sackler family "The justices declined to take the rare step of allowing Arizona Attorney General Mark Brnovich to pursue a case directly with the Supreme Court on the role the drugmaker played in the U.S. opioid epidemic that has killed tens of thousands of Americans annually in recent years." [Reuters]

>> Justices Won't Review Challenge to Kentucky's Abortion Ultrasound Law. The U.S. Supreme Court on Monday turned away a challenge to a Kentucky pre-abortion ultrasound law requiring physicians to provide sound and detailed images of the fetus to a woman opting for the procedure. The justices denied review without comment in the case EMW Women's Surgical Center v. Meier, a challenge brought by the American Civil Liberties Union and O'Melveny & Myers on behalf of Kentucky's sole licensed abortion clinic. [NLJ] The NYT has more here.

>> Kavanaugh Opens Door to Carbon Rule Challenge. "How much authority should federal agencies have in shaping regulations like the Clean Power Plan, and how much of that work should fall to Congress instead? Some legal experts say that question could become a focus for the Supreme Court's conservative majority now that Justice Brett Kavanaugh has signaled interest in reconsidering the scope of agency powers." [Energy Wire]

>> Justices Lean Toward Broader Review of Deportation Orders. "The U.S. Supreme Court seemed likely after oral argument Dec. 9 to rule in favor of a challenge seeking judicial review of deportation orders more broadly. Justices from both the conservative and liberal wings of the court aggressively questioned the government's attorney in a case examining what immigration decisions are reviewable in federal court." [Bloomberg Law]