Good morning and welcome to Supreme Court Brief. The justices could issue the first opinions of 2020 this morning—we're looking out. The Bridgegate scandal is at the heart of arguments today in a case alleging prosecutorial overreach. Plus: Corporations would like to know if the excessive fines clause applies to them, but the justices took a pass Monday on a Colorado case posing the issue. And: Chief Justice Roberts steps aside from a petition involving a gigantic portrait of Donald Trump.

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.

 

 

Was 'Bridgegate' Prosecution a Bridge Too Far?

Charles McNally, Jeffrey Skilling, Robert O'Donnell—all found a Supreme Court sympathetic to their claims of prosecutorial overreach. Will Bridget Kelly (above), a former official in New Jersey Gov. Chris Christie's administration, and William Baroni Jr., former deputy director of Port Authority, be so fortunate?

The justices will hear arguments this morning in the case stemming from the Bridgegate affair in New Jersey. Kelly and Baroni were convicted of wire fraud and federal-program fraud for their alleged roles in a 2013 scheme to use government resources and property to cause a traffic jam on the George Washington Bridge. Their motive was political payback to Fort Lee's mayor who had refused to support Christie's reelection.

Jones Day partner Jacob Roth will argue for Kelly. Roth will share argument time with Baroni's counsel, Sidley Austin partner Michael Levy. Deputy Solicitor General Eric Feigin will argue for the United States. Here is a brief look at the arguments.

>> Roth: "All that separates a routine decision by a public official from a federal felony, per the opinion below, is a jury finding that her public policy justification for the decision was not really and truly her subjective reason for making it."

>> Levy: "Because every official decision requires the expenditure of at least some money or property, the government's theory would nullify McNally and Skilling, subjecting state and local officials to the same federal code of good government that this Court has disallowed. For that reason, the convictions should be reversed."

>> Feigin: The evidence showed "that the conspirators could realign the lanes only by lying about the existence of a traffic study, and about the Executive Director's knowledge of the fictional study. By telling those lies, and diverting the agency's resources to serve their own personal ends of inflicting massive four-day gridlock on Fort Lee, Kelly and Baroni committed fraud."

>> Joshua Dratel, partner at Dratel & Lewis, for amicus National Association of Criminal Defense Lawyers supporting Kelly: "In attempting to criminalize state governmental policy decisions that allegedly were justified on pre-textual grounds, the decision would substitute the criminal process for the political process. If state decisionmakers deprive the electorate of the candid reasons for policy choices, the solution is at the ballot box, not the jury box."

>> Michael Meuti, partner at Cleveland's Benesch, Friedlander, Coplan & Aronoff, for amicus Sen. Sheldon Whitehouse supporting United States: "This case concerns acts by public officials that a jury found were corrupt. I urge, in responding to those facts, that the court not further hobble the public's capacity in regulating political misdeeds, and that the court affirm the Founders' legacy to us of a robust jury role in deterring and punishing public corruption." —Marcia Coyle

 

 

Corporations and Excessive Fines

Corporations will have to wait longer to learn whether and how the Eighth Amendment's excessive fines clause applies to them.

The justices on Monday turned away a challenge to a Colorado Supreme Court ruling that applied the clause to a Denver motel owner who faced fines totaling more than $800,000 for letting her worker's compensation insurance lapse. But the issue is likely to return and perhaps even in the underlying case—Colorado Department of Labor and Employment v. Dami Hospitality LLC.

A jurisdictional issue may have spooked the justices as they considered granting review. Court experts note that the justices have a jurisdictional rule that they only consider final judgments and decrees from state supreme courts, albeit with several exceptions. The Colorado high court had remanded the case to the lower court for further proceedings after deciding the federal issue.

Colorado solicitor general Eric Olson and Dami's counsel Latham & Watkins partner Gregory Garre tried to persuade the court that the case fell within one of the exceptions to the finality rule. In the end, that finality rule may have been the main obstacle to review. —Marcia Coyle

 

 

A Trump Painting, and a Roberts Recusal

Recusals by justices from participating in certiorari decisions are rarely explained, but the reason for a recusal by Chief Justice John Roberts Jr. in Monday's orders list was almost too easy to discern—and it wasn't the usual stock-conflict situation.

Julian Raven had asked the high court to review the U.S. Court of Appeals for the D.C. Circuit's decision upholding the Smithsonian National Portrait Gallery's refusal to include in the gallery his 8-by-16-foot acrylic painting of presidential candidate Donald Trump. The painting depicts Trump's face beside a bald eagle swooping in to pick up a falling American flag.

Raven said in his petition that the gallery violated the First and Fifth amendments by rejecting the painting, framed in red, white and blue, as "too big," "too political," "too pro-Trump" and "no good." Raven filed pro se and the government waived a response to the petition.

Why might Roberts have recused? The Smithsonian's charter specifies that the chief justice and vice president are ex officio members of the board of regents. The chief justice also serves as chancellor of the Smithsonian. —Marcia Coyle

 

  

Supreme Court Headlines: What We're Reading

'Millions of Arbitration Agreements' Threatened in California, SCOTUS Petition Asserts. A California Supreme Court ruling in a wage dispute threatens to undermine "millions of arbitration agreements" and more broadly highlights the state's "recalcitrance" against allowing employers and their workers to resolve some workplace complaints out of court, lawyers for an auto dealer asserted in a new U.S. Supreme Court on Monday. [NLJ]

King & Spalding's New Hire Has Clerked for 3 U.S. Supreme Court Justices. Paul Mezzina has rejoined King & Spalding after clerking for U.S. Supreme Court Justice Neil Gorsuch. Mezzina's recent clerkship was not his first—nor even his second—for a Supreme Court justice. Mezzina has actually clerked for three different justices: Justice Brett Kavanaugh (when he sat on the D.C. Circuit), the late Justice Antonin Scalia and, most recently, Gorsuch. [NLJ]

Tech Industry Rallies Behind Google in Supreme Court Fight. "Google is garnering support from some of its toughest critics amid an upcoming Supreme Court battle with Oracle, pitting some of the tech industry's most formidable heavyweights against the U.S. government in a fight with billions of dollars and the future of the software industry on the line." [The Hill] Among the amicus filings: IBM, represented by Hughes Hubbard & Reed.

Circuits Split and Judges Squabble as Courts Confront National Injunctions. "A pair of federal appeals courts last week issued diverging rulings on national injunctions blocking President Donald Trump's policies, highlighting the ways circuit courts are confronting the nationwide orders issued by trial judges," our colleague Jacqueline Thomsen writes. [NLJ]

Trump Asks Supreme Court to Allow 'Public Charge' Rule to Go Into Effect. The Trump administration on Monday asked the Supreme Court to lift a lower court order that is blocking the government's efforts to make it more difficult for immigrants who rely on public assistance to obtain legal status. [CNN] SCOTUSblog has more here.

Returning to the Court as An Attorney. "What made Joshua Davey's amicus brief so interesting is that over fifteen years ago a very different U.S. Supreme Court upheld a Washington Scholarship program that, because of the state's Blaine Amendment, prevented him from using the scholarship that he received to obtain a degree in devotional theology." [Appellate Advocacy Blog]

Impeachment

Meet John Roberts' Senate Impeachment Whisperer. "While Roberts is tasked with overseeing the proceedings from the Senate's most prominent chair, it will be [Elizabeth] MacDonough hovering, omnipresent but essentially unseen, in the corner of the frame, offering guidance the entire time." [Politico]

In McGahn Case, an Epic Constitutional Showdown. "The appeals court, acting in the shadow of Mr. Trump's impeachment, has put the case on a fast track. After it rules, a Supreme Court appeal seems close to inevitable. The case may not be resolved in time to matter in the impeachment trial, but it may nonetheless yield a foundational ruling on the structure of the Constitution." [NYT] Our earlier coverage of the D.C. Circuit's hearing, if you missed it: DOJ Tells 'Unelected and Unaccountable' Judges to Stay Out of Fight for McGahn Testimony

The Supreme Court Can Review an Unfair Impeachment Trial. "If such a sham trial comes to pass, is there any remedy? In fact, there is a stronger case than many think that the Supreme Court has the power to review impeachment trials, to ensure that Senate procedures meet a basic level of fairness." [The Washington Post]

Cert denials

SCOTUS Passes on Reviewing Patent Eligibility. After dipping a toe back in the patent eligibility waters, the U.S. Supreme Court has decided against diving all the way back in. The justices denied certiorari Monday in two cases in which the court had sought the views of the solicitor general, HP v. Berkheimer and Hikma Pharmaceuticals USA v. Vanda Pharmaceuticals. Either case could have forced the court to reconsider a quartet of Section 101 cases that have tilted the law of patent eligibility away from patent owners and more toward accused infringers, our colleague Scott Graham reports. [NLJ]

Supreme Court Tosses Ruling That Revived Suit Against Iran Central Bank. "The U.S. Supreme Court on Monday threw out a lower court ruling that revived a $1.68 billion lawsuit against Iran's central bank by families of troops killed in the 1983 bombing of the U.S. Marine Corps barracks in Lebanon in light of a new federal law that could help the plaintiffs recover damages." [Reuters] CNBC has more here.

Court Won't Take Up Michelle Carter's Conviction for Role in Boyfriend's Suicide. "The Supreme Court said on Monday that it would not take up the case of Michelle Carter, a woman serving a 15-month sentence for her part in her boyfriend's death by suicide. Carter had asked the justices to take up her case, arguing that her conviction three years ago for involuntary manslaughter—based on her words alone—violated her First Amendment rights." [CNN]