Good morning and welcome to Supreme Court Brief! Although the justices set an important Indian law case for reargument this term, it looks like they have taken a replacement case. Jenner & Block's Ian Gershengorn once again will try persuading what may have been a deadlocked court that the Creek Nation's historical boundaries in Oklahoma remain intact. He tells us how he found the new case. Latham & Watkins scored a pro bono win for the homeless. Plus: There's still time to find the perfect present for the SCOTUS fan in your life. Take a look at our holiday book list. Supreme Court Brief will not publish next week but we'll return to mark the new year. Best wishes for safe and happy holidays! 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.

 

 

 

Jenner's Gershengorn Will Tackle Indian Law Question—Again

Last term the case Carpenter v. Murphy raised the difficult and fascinating question of whether the Creek Nation's reservation in Oklahoma—about half of the eastern part of the state—was diminished or "disestablished" so that the state had jurisdiction to prosecute Patrick Murphy and others for crimes by Indians in Indian country.

In June, the justices announced that the Tenth Circuit case—which they had heard argued with an eight-justice court because Neil Gorsuch was recused)—would be reargued in the current term. But as conference after conference passed with no reargument date scheduled, Jenner & Block partner Ian Gershengorn (above), who had argued that tribal boundaries and federal jurisdiction remained, began to think the high court might be looking for another case raising the same issue but not requiring Gorsuch to recuse.

No one knows for sure whether the court had deadlocked a firm 4-4, or if it was simply a difficult case that required a full bench.

But with Murphy reargument in limbo, Gershengorn began tracking possible replacement cases. He found Jimcy McGirt's pauper petition, reached out to the prisoner a couple of months ago and offered to represent him if his case was granted review.

"I've been having conversations with him almost weekly," Gershengorn said. "His was the only case where the Indian land is the same reservation as in Murphy. On Friday, I was having a call with him at 4 p.m. Eastern time; at 4:29 we finished our conversation, and at 4:31 the court granted it. I called the prison and asked them to track him down again, which they kindly did."

That same day Gershengorn, in a letter, notified the court that he was representing McGirt.

McGirt, a member of the Muscogee (Creek) Nation argued the state lacked jurisdiction to prosecute him for sex crimes committed against a child within the historical Creek boundaries. The Oklahoma's Court of Criminal Appeals affirmed denial of his post-conviction petition as premature pending the Supreme Court's decision in Murphy.

Oklahoma Solicitor General Mithun Mansinghani had urged the justices to deny review, arguing that a Murphy decision would make McGirt's case moot, that the lower court decision rested on independent and adequate state grounds, and McGirt's arguments on the merits were wrong.

How the lawyering will shape up in the McGirt arguments is not clear yet, except that Gershengorn will return to the high court lectern. Last term, Lisa Blatt, partner in Williams & Connolly, who was with Arnold & Porter at the time, represented Oklahoma.

On rearguing the issue, Gershengorn told us: "You forget a lot. We argued in December a year ago. On other hand, you learned a lot. We had two supplemental briefs to figure out what to incorporate. The case is a little different now." But, he added, "The text is plain and the treaties and history are strong. We're right." —Marcia Coyle

 

 

 

A Latham & Watkins Pro Bono Win

The justices' decision Monday declining to review a petition filed by Gibson, Dunn & Crutcher on behalf of Boise, Idaho, was deemed a victory not just for the homeless who had been prosecuted or threatened with prosecution for sleeping outside on public property but also for Latham & Watkins.

The law firm, in partnership with the National Law Center on Homelessness & Poverty and Idaho Legal Aid Services, said it had spent a decade and more than 7,500 pro bono hours fighting Boise's camping and disorderly conduct ordinances.

Latham partner Michael Bern argued and won the Eighth Amendment challenge in the U.S. Court of Appeals for the Ninth Circuit and wrote the brief in opposition to high court review.

Boise hired Gibson, Dunn & Crutcher, which charged $75,000 for the Supreme Court petition and would have charged $225,000 for briefing and oral argument if the justices had taken the case. Gibson Dunn partner Theane Evangelis was counsel of record.

Boise said in a statement: "Today's news is disappointing. We believe that the 9th Circuit's most recent decision in this case leaves the city's fundamental ability to protect public health and safety on its own streets very uncertain."

Bern said some of the individual plaintiffs still have constitutional claims against the city and the firm will continue to be involved in the litigation.

"Our hope is this moves beyond the legal question to think about the policy question," he said. "The evidence shows the criminalization of homelessness, particularly where there is no available shelter, does absolutely nothing to solve the terrible problem of homelessness. We're hopeful cities will look to real solutions rather than falling back on criminalization." —Marcia Coyle

 

 

 

A Holiday Reading List for SCOTUS Fans

Need a last minute present for your favorite Scotus nerd or maybe yourself? The year has witnessed a number of interesting and accessible books about the Supreme Court and the justices—some by scholars, journalists and advocates. Here are some to consider wrapping a ribbon around.

The fight over the nomination of Justice Brett Kavanaugh spurred a variety of new books, including: Supreme Ambition: Brett Kavanaugh and the Conservative Takeover (by Ruth Marcus of The Washington Post); Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court (by Mollie Hemingway and Carrie Severino, chief counsel at Judicial Crisis Network ); The Education of Brett Kavanaugh: An Investigation (by New York Times reporters Robin Pogrebin and Kate Kelley)

There are also several new books from justices: A Republic If You Can Keep It (by Justice Neil Gorsuch); The Making of a Justice: Reflections on My First 94 Years (by Justice John Paul Stevens); Just Ask! Be Different, Be Brave, Be You (by Justice Sonia Sotomayor)

And don't forget about books about the justices, including: The Chief: The Life and Turbulent Times of Chief Justice John Roberts (by Joan Biskupic); The Enigma of Clarence Thomas (by Corey Robin); First: Sandra Day O'Connor (by Evan Thomas); and Conversations with RBG: Ruth Bader Ginsburg on Life, Love, Liberty and Law (by Jeffrey Rosen).

There are also plenty of new books about the court, including: An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know (by Josh Blackman and Randy E. Barnett); and Separate: The Story of Plessy V. Ferguson and America's Journey from Slavery to Segregation (by Steve Luxenberg). —Marcia Coyle

 

 

 

Supreme Court Headlines: What We're Reading

• Ruth Bader Ginsburg on Trump's Calls to Stop Impeachment: 'The President Is Not a Lawyer'. "Supreme Court Justice Ruth Bader Ginsburg on Monday weighed in on President Donald Trump's assertion that the impeachment proceedings against him should stop, saying he 'is not a lawyer.' The remarks from the 86-year-old justice came at an event in New York where she was awarded the Berggruen Institute Prize for Philosophy and Culture. She plans to donate the $1 million prize to a number of organizations that promote opportunities for women." [CNN]

• Supreme Court Refuses to Hear a Case About Where Homeless Can Sleep. "The Supreme Court refused Monday to hear a major case on homelessness, letting stand a ruling that protects homeless people's right to sleep on the sidewalk or in public parks if no other shelter is available. The justices without comment or a dissent said that they would not hear the case from Boise, Idaho, which challenged a ruling by a federal appeals court." [Los Angeles Times] The New York Times has more here.

• Who's Really in Charge of the Senate Impeachment Trial? "McConnell is wrong: It is Chief Justice John Roberts, not the majority leader, who will be making all the key decisions. This is the plain meaning of the Senate's 'Rules of Procedure and Practice" currently in force for the conduct of impeachments." [Slate]

• Justice Gorsuch in 'Fox & Friends' Interview: Pay Attention to Separation of Powers. "Well, one thing I wanted to talk about in the book…is the importance of the separation of powers and how it keeps us free. And, when it comes to the role of the judiciary, I believe that the role is to be faithful to the original meaning of the constitution," he said. [Fox News]

• Progressive Groups Are Demanding CFPB Critic Brett Kavanaugh Recuse Himself from Supreme Court Case. "Several progressive organizations demanded Tuesday that Justice Brett Kavanaugh recuse himself from an upcoming Supreme Court case over the constitutionality of the Consumer Financial Protection Bureau, the post-crisis financial regulator, because he declared the bureau's structure unconstitutional while he was a federal appeals court judge in Washington." [CNBC]