Welcome to Supreme Court Brief! The justices will hold their first conference of 2020 on Friday and will be prepping for arguments next week. One of their January cases has an amicus brief by a McGuireWoods partner who was the young respondent in 2004′s Locke v. Davey—a key precedent in the January religion clause case. Meanwhile, as the court prepares to hear the Louisiana abortion-clinic case weeks from now, the parties are feuding over the record. Plus, the SG's office recently brought on former Kavanaugh/ Scalia clerk Rebecca Taibleson, but gender diversity's dwindling.

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.

 

 

 

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College Student Who Lost in the Supreme Court Returns as a Lawyer in Major Religion Case

The U.S. Supreme Court's 2004 ruling in the student scholarship case Locke v. Davey is central to a church-state dispute the justices will soon hear involving Montana and school vouchers. The justices recently heard from Davey himself—Joshua Davey, now a partner at McGuireWoods in Charlotte, North Carolina.

Davey, as counsel of record, filed a friend-of-the-court brief on behalf of Forge Youth Mentoring backing the challengers in the case Espinoza v. Montana Department of Revenue. The case will be argued Jan. 22.

In the Espinoza case, a group of mothers, represented by Richard Komer of the Institute for Justice, challenge a Montana Supreme Court ruling that struck down a state tax credit program on the ground that it violated the state constitution's bar on aid to religious schools.

Both sides in the dispute contend the justices' decision in Locke v. Davey supports their positions. In the 7-2 decision in Locke, Chief Justice William Rehnquist, writing for the majority, said the First Amendment's free exercise clause was not violated when a state funds secular college majors but not devotional theology majors. Justices Antonin Scalia and Clarence Thomas dissented. "The state has merely chosen not to fund a distinct category of instruction," Rehnquist wrote.

Komer contends that "the only time this court has upheld a religious exclusion in an individual-aid program was in Locke v. Davey, and the court emphasized that the exclusion there was constitutional only because it was narrow and the challenged program otherwise went 'a long way toward including religion in its benefits.'" The Montana constitution imposes a complete bar on religious options, he wrote.

But all nine justices in the Locke court would reject Espinoza's claims, according to Jenner & Block partner Adam Unikowsky, representing Montana. "Justice Scalia said that there would be no constitutional problem if the State abandoned the program, even if the reason for that abandonment was 'concern for the conscience of its taxpayers,' i.e., to prevent the funding of religion," Unikowsky wrote in his brief, adding that is exactly what happened in the Montana case.

Davey received a state Promise scholarship but discovered after he enrolled in Northwest College, a private evangelical Christian institution, that he would not get the money if he pursued a theological degree. He had planned on a double major in business administration and pastoral ministries.

Davey forfeited the scholarship. He filed a First Amendment challenge to the exclusion, lost in the district court, won in the U.S. Court of Appeals for the Ninth Circuit, and lost again in the Supreme Court.

After graduation, instead of entering the seminary, Davey went to Harvard Law School. He clerked for Judge Dennis Shedd of the U.S. Court of Appeals for the Fourth Circuit and subsequently joined McGuireWoods. Today, Davey is co-chair of the firm's consumer financial regulatory and enforcement team publishing committee and he also co-chairs the firm's insurance recovery practice group.

In a footnote in his Espinoza amicus brief, Davey told the justices he was the respondent in Locke v. Davey. The Montana Supreme Court, he argued, relied on an expansive reading of Locke that "dealt with the much narrower question of funding of vocational religious instruction."

A high court decision affirming that expansive reading, Davey wrote, "would sweep far more broadly than the school choice context at issue in this case, because it could be taken to authorize the exclusion of faith-based organizations from contracting with the government simply because they have a religious identity." —Marcia Coyle

 

 

 

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Louisiana and Clinic Clash Over the Record

The fight over Louisiana's abortion clinic restrictions comes to a head in arguments in the case June Medical Services v. Gee less than two months away. But the justices first might have to deal with a related fight over the state's attempt to add new information to the record.

Louisiana solicitor general Elizabeth Murrill on Dec. 26 filed a motion to supplement the record with three appendices—one of which contains sealed information and the other of which is currently subject to a protective order in an ongoing lawsuit challenging different abortion restrictions.

All three appendices would be used to try to bolster the state's two main arguments. Louisiana argues that the state requirement that abortion physicians have hospital admitting privileges within 30 miles does not create an undue burden on women's abortion right, and that abortion clinics and physicians do not have third-party standing to challenge the state requirements because their interests conflict with their patients.

The state's motion drew a response Monday from the clinic's counsel, Travis Tu of the Center for Reproductive Rights, which has been assisted by attorneys with O'Melveny & Myers, including Jeffrey Fisher.

"None of the state's extra-record materials has been subject to the adversarial process," Tu told the court. "Nor is any of it properly subject to judicial notice or to any duty to disclose." He also told the justices that much of the information was incomplete or contrary to the district court's findings of facts in the case.

Tu relies on the high court's 2009 decision in Summers v. Earth Island Institute, which held that it would be improper on appeal to consider factual declarations offered "after the trial is over, judgment has been entered, and a notice of appeal has been filed." Tu said the 2009 ruling indicated allowing that type of material would usher in a "brave new world" of litigation tactics.

Louisiana, Tu said, relied on extra-record materials in its merits brief before seeking the court's permission, and he asked the justices to deny the state's motion and order it to file a redacted brief. If the state's motion is granted, he said, June Medical requests the opportunity to file a brief responding to the new materials.

Arguments in the abortion case are scheduled for March 4. The clinic's final brief is due Jan. 17. —Marcia Coyle

Gender Diversity Declines at SG's Office

The recent departure from the U.S. solicitor general's office of several female lawyers—most recently Elizabeth Prelogar—has left only four women out of 16 assistant positions in the office.

With the U.S. Supreme Court bar dominated by men, the solicitor general's office has long played an important role as a source of talented female attorneys.

Lawyers including Lisa Blatt, Deanne Maynard, Beth Brinkmann, Ilana Eisenstein, Elaine Goldenberg, Nicole Saharsky and now Prelogar have gone on to become Supreme Court practitioners and appellate practice leaders at major law firms.

Last term, of the 185 appearances made by lawyers before the Supreme Court, only 32 were women, and of them, only 10 were in private practice. The rest were from the solicitor general's office or from state or local agencies.

"The gender imbalance in the Supreme Court bar is skewed to say the least," said Sarah Harrington, a veteran of the office who joined Goldstein & Russell in 2017. "If the OSG ranks are almost exclusively male, that will inevitably exacerbate the gender imbalance for years to come." During her time in the office, Harrington said eight of the 16 assistants were female. All of the eight have left, she said.

The four women currently serving as assistants to the solicitor general are Erica Ross, Morgan Ratner, Colleen Sinzdak and Rebecca Taibleson (pictured above).

Taibleson, who clerked for then-Judge Brett Kavanaugh and the late Justice Antonin Scalia, is the latest hire, joining the office in December and detailed from her position as an assistant U.S. attorney at the Eastern District of Wisconsin. —Tony Mauro

 

 

 

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Supreme Court Headlines: What We're Reading

FTC Files Own Petition, Suggesting Divide in Federal Government. "Between 1975 and November of 2019, [the FTC] had represented itself before the court only four times. In December of 2019, it did so for the fifth time, asking the justices to review a ruling by the U.S. Court of Appeals for the 7th Circuit that, according to the agency, 'threatens the FTC's ability to carry out its mission by eliminating one of its most important and effective enforcement tools.'" [SCOTUSblog] Read the FTC's petition, from general counsel Alden Abbott, here.

Lawyers, Uninterrupted, Adjust to Supreme Court Two-Minute Rule. "On the whole, the new rule seems to have been well-received by advocates. Bloomberg Law spoke to a dozen lawyers who've argued under the new rule so far this term. But some have reservations, including Sidley Austin's Carter Phillips, who's been arguing at the Supreme Court since before Scalia's 1986 appointment. He says he's 'not a big fan of the two minutes' because it's time that could be better used responding to the justices' concerns." [Bloomberg Law]

Google Warns of Monopoly Powers in Oracle Fight at Supreme Court. "Alphabet Inc.'s Google urged the U.S. Supreme Court to overturn a ruling that the company's use of Oracle Corp.'s software for the Android mobile operating system violated copyrights, in a case that may reshape legal protections for software code." [Bloomberg]

Elizabeth Prelogar, Mueller Alum and Supreme Court Advocate, Joins Cooley. Elizabeth Prelogar (at left), a rising star at the U.S. solicitor general's office who also played a key role in Robert Mueller's special counsel team from 2017 to 2019, has left government to join the Cooley law firm as a litigation partner in Washington. Andrew Goldstein, a colleague in the Mueller investigation who previously worked as a federal prosecutor and joined Cooley in June, was instrumental in recruiting Prelogar. [NLJ]

At Supreme Court, Fidelity Argues Against Liability Over 'Suspicious Activity Report'. Lawyers for the investment services provider Fidelity Brokerage Services LLC on Monday asked the U.S. Supreme Court to keep in place a federal appeals court ruling that said the company could not be held liable in a private lawsuit for merely telling U.S. financial regulators about an allegedly suspicious stock transaction. Fidelity, represented by the law firm Jones Day, is vying to leave undisturbed an April 2019 decision from the U.S. Court of Appeals for the First Circuit. [NLJ]

A 3-Decade-Long Water Dispute Heads To The Supreme Court. "For three decades, Georgia and Florida have been battling over how to share a precious resource: water. Georgia has it, and Florida, which is downstream, says it's not getting its fair share. The dispute is once again headed to the U.S. Supreme Court, where Florida wants the justices to cap Georgia's water use. But a court-appointed special master recently rejected that idea." [NPR]

The Battle Over Abortion Rights: Here's What's at Stake in 2020. "Changes at the state and federal level made 2019 a volatile year for abortion access. But for activists, the fight is just heating up. Reproductive rights experts anticipate the abortion landscape to change even more dramatically in the year ahead, thanks to an onslaught of expected court rulings and new laws. Many of the battles in the coming year stem from policies implemented and struck down in prior years." [CNBC]