Good morning and welcome to Supreme Court Brief. The justices' February break is half over and their next conference looms on Feb. 21. We do a flashback to a still-controversial Scalia opinion and then fast-forward to three petitions seeking to overturn it. Chief Justice John Roberts Jr.'s wristwear caught the attention of a 3L "watch nerd." And the peripatetic RBG shares some thoughts on the also still controversial Equal Rights Amendment.

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.

 

 

Scalia's 'Smith' Decision, in Focus (Again)

The drumbeat for the Supreme Court to reexamine or overrule its free exercise clause precedent Employment Division v. Smith has increased as the ruling approaches its 30th anniversary in April. Three petitions are urging the justices to overrule the 1990 decision—one is a direct request and two others call for it if the decision is raised in any way against them.

Thirty years ago, Craig Dorsay made his first Supreme Court argument in Smith. He was at the time litigation director of the Native American Program of Oregon Legal Services.

Despite the passage of time, Dorsay, partner at Dorsay & Easton Indian Law in Portland, has vivid memories of the experience, which resulted in the ruling against his clients—two drug counselors fired because they ingested peyote as part of a sacrament of the Native American Church.

The high court has become more conservative since he argued Smith, Dorsay said, adding, "so I have assumed it would be more difficult, not less, to overturn the Smith decision." But the court also has become more sympathetic and protective of religious claims.

In ruling against Smith, the majority, led by Justice Antonin Scalia, said that generally applicable, neutral laws do not violate the free exercise clause. The ruling abandoned the strict scrutiny standard applied to free exercise claims since 1963.

The direct attack on Smith today comes in Ricks v. Idaho Contractors Board. George Ricks is represented by Eric Baxter of the Becket Fund for Religious Liberty and Idaho Deputy Attorney General Leslie Hayes is counsel to the board.

Becket also filed the petition in the second of the Smith trio, the case Fulton v. City of Philadelphia. The lawyers in that case are Becket's Mark Rienzi and for the city, Gupta Wessler partner Deepak Gupta. The conservative legal organization Alliance Defending Freedom brought the third petition, Arlene's Flowers v. Washington with the Alliance's Kristen Waggoner representing Arlene's and Washington solicitor general Noah Purcell as counsel for the state.

Ricks is different from the other two cases in one respect. It does not involve refusals to serve or work with LGBTQ persons because of someone's religious beliefs. Idaho law required George Ricks to list his social security number on his application for individual contractor registration with the Idaho Bureau of Occupational Licenses. He refused, citing his religious belief that the social security number was the mark of the beast written of in the bible.

Ricks has drawn supporting amicus briefs filed by Dechert partner Michael McGinley for The Buckeye Institute; Gibson, Dunn & Crutcher partner Thomas Hungar for 10 legal scholars, and Wilmer Cutler Pickering Hale and Dorr partner Daniel Kearney Jr. for the General Conference of the Seventh Adventists, among others.

All three petitions have been distributed multiple times for the justices' conference, the last on Jan. 24. The next time the court might consider them is Feb. 21. —Marcia Coyle

 

 

Watching the Justices

Adam Shniderman is a self-described "massive watch nerd." He is also not a typical 3L. The University of Michigan law student has a Ph.D. in criminology, law and society from the University of California Irvine; a healthy list of peer-reviewed bioethics and neuroscience articles, and three years of teaching experience at Texas Christian University.

But it was his watch passion, spurred in his teen years by his father's 1800s pocket watch, that drew him to tune into the Trump impeachment trial to focus closely on Chief Justice John Roberts Jr. His description of Roberts's watch on Twitter led to a thread "Watches of the Supreme Court."

"The chief justice is pretty stylish—cufflinks, watch– and it was really because he was up there on TV and for the first time, I saw the smaller details of his style," said Shniderman. "When I shared Roberts's watch, I got messages from practicing lawyers and academia. People seemed to love it so I decided to check out the other justices."

First among equals, Roberts has "SERIOUS watch game," according to Shniderman. He wears a Patek Philippe Reference 5205G (currently selling for $35,000-$40,000 in the pre-owned market).

Working off photos and videos, Shniderman identified Justice Clarence Thomas's Breitling Chronomat and also a Rolex GMT Master; Neil Gorsuch's Garmin Forerunner 235 and other sport watches; Brett Kavanaugh's Raymond Weil 5678-STC-00300; Elena Kagan's Movado Museum and Fitbit and Stephen Breyer's vintage Omega which was passed down by his father.

Schniderman said he is comfortable with his identifications and if there are any errors, they would relate to model years.

Since developing the watch thread, Shniderman has been asked to identify #WatchesoftheDemDebate and #WatchesoftheOscars. In private Twitter messages, he said, he has been asked to identify watches that have been handed down to families and he has heard from some Supreme Court clerks—but no justices.

For himself, Shniderman has a small collection of watches, including a Rolex "because of the movement inside—really a work of art." And he particularly likes older watches—1950s through early 2000s. In general, he explained, "I just love watches—their history. They're like little machines."

Shniderman, who has two clerkships lined up after graduation, first with the Texas Supreme Court and then with the U.S. Court of Appeals for the Ninth Circuit, is not sure what type of law he will practice in the future. He said his research has shifted to cybersecurity and cyberinsurance. He also found interesting securities work as a summer associate with Jones Day.

And he'd love to seek a Supreme Court clerkship. "It's not out of the realm that it could happen one day," he said. "For me, it's sort of a personal thing. My grandfather clerked for Justice Wiley Rutledge in the October 1944 term." —Marcia Coyle

 

 

Ginsburg Urges 'New Beginning' for Equal Rights Amendment

The campaign to include the Equal Rights Amendment in the U.S. Constitution should "start over," Supreme Court Justice Ruth Bader Ginsburg said Monday.

"I would like to see a new beginning," Ginsburg said at an American Bar Association event celebrating the 100th anniversary of the 19th Amendment, which established that the right to vote could not be denied "on account of sex."

Ginsburg's statement could complicate the new effort to revive the ERA in the wake of Virginia's recent ratification of the amendment, the 38th state to do so. Virginia, Illinois and Nevada have gone to court to assert that the amendment, approved by Congress in 1972, has, in fact, been ratified, even though the Justice Department claims that the deadline for ratification has come and gone. Several other federal courts are also weighing the status of the amendment.

Ginsburg's long history and preeminence on the issue of women's rights and the ERA may make her viewpoint difficult to ignore as the revival effort continues. Her comments also quickly drew criticism for setting forth her opinion on the matter as litigation, which could reach the Supreme Court, is pending.

"There is little chance ERA supporters would file a motion to recuse Justice Ginsburg. Such a move would be an apostasy," constitutional scholar Josh Blackman wrote at The Volokh Conspiracy Monday night. "But I don't know how RBG could approach this case neutrally." —Tony Mauro

 

 

Supreme Court Headlines: What We're Reading

The justices

Chief Justice's Impeachment Handbook: Determined Minimalism. "He approached the task of presiding over the trial with stoic restraint, no doubt having concluded that doing as little as possible was the best way to try to protect the authority and legitimacy of the Supreme Court in an era of poisonous partisan warfare." [NYT]

For the First Time, Flagship Law Journals at Top U.S. Law Schools Are All Led By Women. "Only one woman worked on the staff of the Harvard Law Review when Ruth Bader Ginsburg arrived on campus in 1956. It would be another two decades before a woman was elected to lead the school's prestigious legal journal. The Supreme Court justice this week addressed the current slate of editors in chief from the top 16 law schools in the country. For the first time ever, all are women. 'It's such a contrast to the ancient days when I was in law school,' Ginsburg said during a gathering in Washington to mark the 100th anniversary of the ratification of the 19th Amendment, which granted women the right to vote. 'There really is no better time for women to enter the legal profession.'" [The Washington Post]

Helgi Walker: Clarence Thomas' Legacy Is One All Americans Should Admire. "He is widely considered one of the most influential legal thinkers of his time by lawyers, academics, and historians, whether they agree with him or not. And I say, 'If you ever had a chance to meet and talk with the justice, you would love and admire him as a human being as much as I do,'" the Gibson, Dunn & Crutcher partner and former Thomas clerk writes. [Fox News]

Supreme Court Takes New Aim at Unwritten Rules. "The U.S. Supreme Court issued its newest guidance in its ongoing effort to formalize previously unwritten rules for lawyers on its procedures. The latest installment concerns scheduling at the justices' private conferences and requests for Supreme Court review, known as petitions for certiorari or cert-stage petitions." [Bloomberg Law] Read the guidance here. The Appellate Advocacy Blog has more here.

Pending cases

 Major Tax Case for Tech Giants Reaches Supreme Court. "A landmark tax case watched by Google, Apple, Facebook, and other tech giants concerning assets shifted overseas reached the Supreme Court on Monday. Intel-owned Altera Corp. is appealing its loss in the U.S. Court of Appeals for the Ninth Circuit over the validity of Internal Revenue Service regulations that force companies to include stock-option compensation among the assets that are valued for U.S. tax purposes when multinationals shift their intangible assets abroad. Stock-option compensation gives employees the right to purchase a company's stock at a specified price in the future." [Bloomberg Tax] Mayer Brown's Nicole Saharsky (at left) is counsel of record to Altera.

Texas Sues California Over Law Banning State-Sponsored Travel. "Texas filed a lawsuit Monday in the U.S. Supreme Court over a California law that prohibits official travel to states that California deems discriminatory against LGBTQ people, throwing into question whether the ban affecting 11 states can remain." [Politico]

Should Delaware Be Able to Make Courts Politically Balanced? US Supreme Court Will Hear Case. "The March hearing will take place a little over a year after a federal appeals court ruled in favor of James Adams, a lawyer who sued Delaware Gov. John Carney over a constitutional provision requiring the governor to split judicial nominations between the two major political parties." [Delaware Online]

Trump and the Chief Justice: Impeachment Is Over, But They're Not Done With Each Other. "The trial may be over, but these two are hardly done with each other. Currently, the chief justice is either writing or reviewing the Supreme Court's decision on whether Trump acted within his power to end the program ­protecting young immigrant 'dreamers' from deportation. A decision could come at any time before the court's term concludes at the end of June. Next month, Roberts will call the court to order to consider whether Trump may shield his personal financial information from a congressional committee and a New York prosecutor each investigating matters beyond the president's impeachment." [The Washington Post]