Good morning and welcome to Supreme Court Brief. The high court is in its winter break, although Chief Justice John Roberts Jr. is still traveling across the street for the Senate impeachment trial. Winter seems to slow everything down a bit and the court is no exception. We take a look at the pace of decisions thus far. And the justices have asked the U.S. solicitor general to weigh in on a thorny issue of immunity for the government contractors who allegedly abused Iraqi prisoners in the infamous Abu Ghraib prison.

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.

 

Decision Slow-Down

The justices have begun their four-week February break from oral arguments. If the pace of opinions being issued this term seems a little slow, that's because it is—at least compared to this time last term.

By the last week of January, the justices had handed down three signed decisions and two per curiam (unsigned) opinions. By the same time in the 2018 term, there were eight signed decisions and two per curiams.

Justices Sonia Sotomayor and Clarence Thomas were first out of the gate with two opinions in December: Peter v. NantKwest and Rotkiske v. Klemm, respectively. They were followed in January by Justice Ruth Bader Ginsburg, perhaps the high court's fastest writer, who wrote the unanimous opinion in the bankruptcy case Ritzen Group v. Jackson Masonry.

If the 2018 term is any indication, when the justices return from their winter break on Feb. 24, the decision pace should pick up. In the last term, the court issued six signed decisions and two per curiams that month.

Only the justices and their clerks know the reasons for the slower pace this term. But the difficult, divisive nature of some of the pending cases may play a role.

In each of the last four argument sessions, the court has heard potential landmark cases: Title VII job protections for LGBTQ workers in October; the Trump administration's plan to end the Deferred Action for Childhood Arrivals program in November; the Second Amendment challenge to defunct New York City gun regulation in December, and a religious school funding case in January.

The pressure of high-profile cases likely will continue to play a role in the pace of decisions. The justices will hear an abortion case in the February session. In the March session, the justices will hear President Donald Trump's push to keep his financial records secret, and the court will take up a dispute over the lawfulness of the single-director structure of the Consumer Financial Protection Bureau. —Marcia Coyle

 

 

Justices Call on SG for Views in Battlefield Liability Dispute

The U.S. solicitor general's office has been invited to express its views in litigation involving defense contractor CACI Premier Technology Inc., which is challenging an order that said the company could be held liable for claims that its contractors mistreated Iraqi detainees at the Abu Ghraib prison.

CACI, represented by lawyers from Gibson, Dunn & Crutcher, including Theodore Olson Jr. as counsel of record, asked the justices in November to review an order from the U.S. Court of Appeals for the Fourth Circuit. Olson's working with Gibson Dunn lawyers Amir Tayrani and Aaron Smith on the case. Lawyers from Steptoe & Johnson LLP—including John O'Connor, Linda Bailey and Molly Fox—also represent CACI.

"This case presents a question of far-reaching legal and practical significance that has divided the lower courts: whether orders denying federal contractors' claims of derivative sovereign immunity can be immediately appealed under the collateral-order doctrine," Olson wrote. "The Fourth Circuit's holding that denials of derivative sovereign immunity are not immediately appealable deepens that existing circuit split."

Olson argued that "the ramifications of the Fourth Circuit's decision extend far beyond CACI." He told the justices: "The military relies heavily on private contractors to provide essential operational 3 support. The expanding role of contractors in supporting U.S. military operations worldwide has spawned ever-increasing amounts of litigation against contractors for conduct performed under military direction."

The respondents are represented by the Center for Constitutional Rights; Patterson Belknap Webb & Tyler; and Akeel & Valentine. "This case concerns one of the most dishonorable episodes in recent American history—the torture and abuse of detainees at Abu Ghraib prison in Iraq," Baher Azmy of the Center for Constitutional Rights, counsel of record, told the justices. Azmy urged the justices to turn down the challenge, arguing "CACI's asserted immunity turns on resolution of disputed facts that are inextricably intertwined with the merits."

Lawyers from Covington & Burling—including Daniel Russell Jr.—represent Kellogg Brown & Root Services as amicus backing CACI. "When a district court rejects threshold defenses in battlefield contractor suits—and in particular when, as here, a district court rejects an immunity from suit—the ensuing litigation will almost inevitably inflict the very harms to critical federal interests that the defenses are designed to prevent," Russell told the Supreme Court. —Mike Scarcella

 

 

Supreme Court Headlines: What We're Reading

>> John Roberts Can Call Witnesses to Trump's Trial. Will He? "This isn't a matter of Democrats needing four 'moderate' Republicans to vote for subpoenas and witnesses, as the Trump lawyers have been claiming. Rather, the impeachment rules, like all trial systems, put a large thumb on the scale of issuing subpoenas and place that power within the authority of the judge, in this case the chief justice." [NYT]

>> A Proposal to Offset Prosecutorsʼ Power: The ʻDefender Generalʼ. "The defender general's office envisioned by the article would sometimes represent individual criminal defendants or file supporting briefs on their behalf. More important, it would represent the interests of criminal defendants generally, even when they diverged from the interests of the particular defendant in the case." [NYT] The new paper from Daniel Epps and William Ortman is here. They write: "If designed carefully, staffed with the right personnel, and given time to develop institutional credibility, a new Office of the Defender General could level the playing field, making the Court a more effective regulator of criminal justice."

>> Trump's Lawyers Tell Supreme Court That the President's Financial Documents Shouldn't be Turned Over. "For years, the President has been battling a broad range of legal challenges attempting to force the release of his tax returns and other financial documents, and now the Supreme Court will hear arguments on the dispute sometime this spring and render an opinion by July—just as the presidential election is gearing up." [CNN]

>> Water Wars: Supreme Court Gives Georgia, Florida 45 Days to Respond. "Justices appeared Monday to lay the groundwork for what would be a second round of oral arguments before the Supreme Court in Florida's long-running water rights case against Georgia. The court issued a notice granting both states 45 days to respond to a recommendation recently issued by the case's expert adjudicator, New Mexico-based federal Judge Paul Kelly, as well as time to counter one another's arguments in subsequent legal briefs." [Atlanta Journal-Constitution]

>> Gorsuch and Thomas Decry 'Chaos' of National Injunctions, as Judges Check Trump. Justice Neil Gorsuch, joined by Justice Clarence Thomas, this week sharply criticized the use of nationwide injunctions and urged the U.S. Supreme Court "at the appropriate juncture" to review what they contend are constitutional questions raised by their use. [NLJ]

>> As Clarence Thomas Arrives to Teach, Some Students Protest. "As U.S. Supreme Court Justice Clarence Thomas arrives this week at the University of Florida's law school, the campus will also be bustling with students protesting his presence." [The Gainesville Sun]

>> Two Cases at High Court May Inform Obamacare Fate. "The U.S. Supreme Court is slated to hear two cases that could help decide the fate of Obamacare, and they have nothing to do with health care. The cases, which challenge the validity of a federal financial agency and a decades-old robocall law, focus on a central question at the heart of the Obamacare challenge—whether an entire law must be tossed out if one provision is found to be unconstitutional." [Bloomberg Law]