Welcome to Supreme Court Brief. The justices finish their first week of the January argument session this morning with a case involving the Age Discrimination in Employment Act. Plus: The justices face a number of calls this term to overrule precedents—scroll down for the wish list. And get ready for next week: Chief Justice John Roberts Jr. might be spending a bit more time than usual at the Capitol.

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 Tougher Standard for Age Discrimination?

In 2009, a divided Supreme Court, led by Justice Clarence Thomas, imposed a "but for" causation standard on proving age discrimination in private employment. This morning the justices will consider whether that standard also should apply to age discrimination claims by federal sector employees. There are an estimated 1.345 million federal employees over the age of 40.

The Age Discrimination in Employment Act has a federal sector provision that states that "all personnel actions affecting employees or applicants for employment" in executive agencies "who are at least 40 years of age… shall be made free from any discrimination based on age." In the case Babb v. Wilkie, Latham & Watkins partner Roman Martinez will argue for Dr. Noris Babb, a Veterans Administration pharmacist, against U.S. Solicitor General Noel Francisco.

Both sides make arguments based on textualism and the history of the federal age discrimination law. The government relies heavily on three cases, one of which is that 2009 Thomas opinion in Gross v. FBL Financial. Thomas drew criticism at the time because neither party had argued or even suggested a "but for" causation standard. In his dissent, Justice John Paul Stevens called the opinion "unnecessary lawmaking."

>> Roman Martinez's brief: "At bottom, this is a straightforward statutory interpretation case, where the text and every indicia of Congressional intent points the same way. And even if there were any lingering doubt, deference to the authoritative interpretation of the EEOC would resolve that doubt in petitioner's favor."

>> Noel Francisco's brief: "Petitioner, by contrast, advocates a novel and anom- alous standard: liability for any consideration of age, even if it makes no difference to the ultimate personnel decision. Petitioner does not point to any other federal anti-discrimination statute with such a low causal bar.

And here's a look at the two amicus briefs filed in the case:

>> AARP (Daniel Kohrman is counsel of record): "Regrettably, the United States seemingly elevates its narrow interests as an employer above its duty to see that the laws are faithfully executed, by declining to defend § 633a(a)'s plainly-stated call for the government to ensure that it creates workplaces where "all personnel actions [are] made free from any discrimination."

>> National Treasury Employees Union (Gregory O'Duden is counsel of record): "Adoption of a but-for standard for proving age discrimination under Section 633a(a) would almost certainly lead to discrimination going unremedied." —Marcia Coyle

 

 

A Wish List for Overruling Precedents

The justices are fast approaching the mid-January cut off for adding new cases to their argument docket this term. They have 16 unscheduled cases and 14 argument days to fill. Many parties are holding out hope the court will hear their call to reconsider or overrule still controversial prior decisions. Here are some of those pending petitions:

>> Qualified immunity: At least two cases ask the justices to revise the doctrine of qualified immunity. In Zadeh v. Robinson, a case stemming from an administrative subpoena, McDermott Will & Emery partner Paul Hughes urges the court to "recalibrate or reverse" the doctrine. Jay Schweikert of Cato, with a team from Hogan Lovells, represents "cross-ideological groups"—including Alliance Defending Freedom and the ACLU—backing the petitioner. In Baxter v. Bracey, involving use of a police dog to apprehend a suspect, the ACLU's Scott Michelman asks the court to narrow or abolish a judge-made doctrine that "has been shown not to serve its intended policy goals."

>> Free exercise of religion: The Becket Fund's Mark Rienzi is counsel to petitioners in Fulton v. City of Philadelphia. He argues that the court should revisit Justice Antonin Scalia's 1990 opinion in Employment Division v. Smith "and return to a standard that can better balance governmental interests and fundamental rights." The Smith ruling said laws of neutral and general application do not violate the free exercise clause. Becket's Eric Baxter repeats that call in Ricks v. State of Idaho Contractors Board.

>> "Brand X": The decision in National Cable & Telecommunications Association v. Brand X Internet Services is the target in Baldwin v. United States. Aditya Dynar of the New Civil Liberties is counsel to Baldwin along with Chamberlin & Keaster in Encino Calif. Dynar argues that reconsideration is "long overdue" and the decision is "unworkable."

>> Chevron deference: The high court's decision in Chevron USA v. Natural Resources Defense Council is becoming a perennial favorite for overruling requests. This time, the question arises in Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives. Guedes's counsel Erik Jaffe of Schaerr | Jaffe makes the argument in a case involving the bureau's bump stock rule. —Marcia Coyle

 

 

Supreme Court Headlines: What Caught Our Eye

Judge Links Fate of House's Bid for Trump Tax Returns to DC Circuit Ruling on McGahn. A federal judge in Washington on Tuesday abruptly halted the House's lawsuit seeking President Donald Trump's federal tax returns pending an appeals court ruling on whether former White House counsel Don McGahn can be compelled to testify, Jacqueline Thomsen reports from Washington. [NLJ]

Justices Seek Middle Ground in Trademark Damages Case. The U.S. Supreme Court sounded ready Tuesday to loosen up what some intellectual property lawyers contend is a rigid rule requiring a threshold showing of willfulness to recover infringer's profits for a trademark violation, our colleague Scott Graham reports. [NLJ]

Trump's Impeachment Trial a Perilous Duty for Chief Justice. "The chief justice's responsibilities at the trial are fluid and ill-defined, and they will probably turn out to be largely ceremonial. What is certain is that they will be full of peril for his reputation and that of his court." [NYT]

Here Are The Lawyers Who Will Defend President Trump Against Impeachment. "White House counsel Pat Cipollone and Jay Sekulow, a private attorney who represented Trump in the Russia investigation, are expected to make arguments before the Senate." [NPR]

Supreme Court Sends IBM 401(k) Dispute Back for More Analysis. "In a short, unsigned opinion, the justices said Tuesday they wouldn't address arguments raised by the IBM defendants and the federal government that involved federal securities laws. The case asks whether IBM insiders can be liable under the Employee Retirement Income Security Act for failing to promptly disclose struggles in the company's microelectronics division that led to a 7% drop in stock price." [Bloomberg Law] Reuters has more here.

U.S. Supreme Court Declines to Hear Puerto Rico Bonds Dispute. "The justices left in place rulings last year by the Boston-based 1st U.S. Circuit Court of Appeals, which determined that payments on certain Puerto Rico bonds secured by special revenues are not required—but optional—while the issuer's bankruptcy is ongoing." [Reuters]