Welcome to Supreme Court Brief. The justices return to their closed-door conference Friday after a nearly four-week respite. As they consider new petitions and prepare for February session arguments, we touch base with advocate Michael Kellogg who returns to the high court lectern after a seven-year absence. Plus: Jones Day announces its new hiring of U.S. Supreme Court clerks—we've got a roundup below. We also take a look at a rare petition—the fifth in 44 years—filed by the Federal Trade Commission.

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 Philosopher-Advocate Readies for Supreme Court Argument

Michael Kellogg (above), a founding partner and the managing partner of Kellogg, Hansen, Todd, Figel & Frederick, will argue at the Supreme Court on February 24 for the first time in seven years. His earlier arguments included landmark cases like Bell Atlantic Corp. v. Twombly and American Express Co. v. Italian Colors Restaurant.

He is a prolific author of books about philosophy, and once wrote that he read Plato's Apology every New Year's Day. Kellogg will argue on behalf of Cowpasture River Preservation Association in a dispute over granting a gas pipeline right-of-way across the Appalachian National Scenic Trail. He'll go up against Kirkland & Ellis partner Paul Clement, who was also his adversary in the Italian Colors case.

As Kellogg prepared for the argument, we caught up with him for a brief interview.

It has been seven years since your last Supreme Court argument. Why the long interregnum?

I am not part of the standard group of Supreme Court practitioners appearing regularly before the Court. It is always an honor and a thrill to do so, but it is not the focus of my practice. The three most significant cases I argued were all cases we handled long before they reached the Supreme Court.

How did the Cowpasture case come your way, and why did you take on the oral argument? Did the environmental issues appeal to you?

I do feel very strongly about environmental issues, and the lawyers from Southern Environmental Law Center are so knowledgeable and dedicated that it is a delight to work with them. I worked on a Clean Water Act case earlier in the term. The court granted the petition in a Hawaii case and held the SELC case. So I did an amicus in that one, and when the petitions were filed in this case, they asked me to work with them on it as well.

In your brief, you cited Robert Frost's quote: "The land was ours before we were the land's." Why did you include it?

The line came forcibly to mind as I was drafting that paragraph. It seemed to fit perfectly with the point I was making. Moreover, The Gift Outright was a favorite poem of Chief Justice Rehnquist, for whom I clerked, and so the line served as a private tribute of sorts.

You are known for your interest in philosophy. Does that interest inform how you write briefs or argue cases?

Not really. I keep the two separate. I was a grad student in philosophy before going to law school and never completely lost my interest. I have been practicing law in one form or another for 38 years. I still love it, but it is nice to devote time to other interests as well.

You were one of the early proponents of hiring bonuses for Supreme Court law clerks when you launched the firm in 1993. Do you think the bonuses are getting out of hand?

We jumped into the mix with $100,000 bonuses. It worked very well for us in the early days of the firm, but ultimately triggered an arms race whose end is not yet in sight. Still, there are a lot of terrific young lawyers coming off the Court. The same is true of the Courts of Appeals. —Tony Mauro

Jones Day Lands Five More SCOTUS Clerks

Five law clerks from the U.S. Supreme Court 2018-2019 term have been hired by Jones Day, continuing its long streak of recruiting large numbers of clerks for its Issues and Appeals Practice. The law firm announced the hires Tuesday.

While the number five sounds big, it's considerably lower than Jones Day's catch of 11 clerks from the 2017-2018 term, a record high. Beth Heifetz (at left), leader of the firm's issues and appeals practice, said in an interview she could not explain the drop except that the market sometimes seems cyclical. "I am happy with the number and happy with the great people who have joined us." The firm has hired 55 Supreme Court clerks since 2011. With the going bonus for departing Supreme Court clerks hovering at $400,000, the newest hires represent at least a $2 million investment for the firm. Heifetz declined to say what bonuses were offered this year but acknowledged that the firm keeps up with the market. In a 2018 interview, Heifetz boasted that the firm has "consistently attracted clerks from across all justices. We're proud of that fact. We find that clerks from justices across the political spectrum continue to be very interested in Jones Day."

The latest batch of five tends toward clerks from conservative justices: J. Benjamin Aguiñaga and Sherif Girgis clerked for Justice Samuel Alito Jr.; Katherine Kimball Mizelle clerked for Justice Clarence Thomas; and Megan Lacy Owen clerked for Justice Brett Kavanaugh. Matthew Rubenstein, who clerked for Justice Ruth Bader Ginsburg, was the only one from the chambers of a liberal justice.

All are assigned to the Washington office except for Rubenstein, who is stationed in the Minneapolis office. —Tony Mauro

FTC Goes Alone in Dispute Disgorgement Power

The justices this term in Liu v. SEC will decide whether the U.S. Securities and Exchange Commission can obtain disgorgement as equitable relief for violations of the securities law. A sibling agency, the Federal Trade Commission, going solo at the Supreme Court without the solicitor general's office, has asked the justices to review the agency's claim that courts also can order the return of unlawfully obtained funds for violations of the Federal Trade Commission Act.

In the petition FTC v. Credit Bureau Center, FTC general counsel Alden Abbott told the justices in a footnote that the commission "rarely exercises its authority to represent itself before this court, having done so only four times previously since Congress granted that authority 44 years ago."

Abbott, who rejoined the FTC in 2018 following legal positions at the Heritage Foundation and BlackBerry, said the commission was taking the unusual step not only because an unfavorable ruling by the U.S. Court of Appeals for the Seventh Circuit was at odds with seven other circuits but also because that ruling "threatens the FTC's ability to carry out its mission by eliminating one of its most important and effective enforcement tools."

"The circuit court stepped away from the consensus among the circuits on disgorgement," said Munger, Tolles & Olson partner Elaine Goldenberg in a recent mid-term briefing sponsored by the Washington Legal Foundation. "The FTC filed under its independent litigating authority. The solicitor general did not sign the petition."

In the petition, Abbott argues that Section 13(b) of the FTC Act authorizes courts to enter permanent injunctions ordering restitution or disgorgement. That had been the position of the courts of appeals for more than 35 years until the Seventh Circuit decision which overruled its own precedent.

The high court case stems from an alleged credit monitoring scam by Michael Brown and his company, Credit Bureau Center. Consumers filed more than 500 complaints to the FTC, other law enforcement agencies, and the Better Business Bureau, and suffered over $6 million in losses. A district court entered summary judgment for the FTC and issued a permanent injunction barring future violations of the FTC Act and requiring defendants to repay $5.2 million, the net amount they took from consumers after deducting amounts recovered from settling codefendants.

Twenty-two states, the District of Columbia and Puerto Rico have filed an amicus brief supporting the agency.

The Credit Bureau Center, represented by Stephen Cochell of Houston's The Cochell Law Firm, has filed a cross petition. Cochell told the justices, "Simply stated, there is no indication in Section 13(b)'s legislative history that Congress intended to, or even considered the possibility of providing the FTC authority to obtain 'equitable restitution.' Consumer redress remedies were initially proposed with injunctive relief, but consumer redress remedies were not adopted." —Marcia Coyle

Supreme Court Headlines: What We're Reading

• Conservative Supreme Court Justices Take Aim at Scalia. "A coalition of religious groups and legal scholars are now asking the Supreme Court to overturn its ruling in Smith through a new case, Ricks v. Idaho Contracting Board. They argue that Scalia's concerns about judicial power proved to be largely unfounded, that he misunderstood the Framers' vision of free exercise protections, and that the ruling has unfairly burdened religious minorities in such cases ever since." [The New Republic]

• Affirmative Action Opponents Renew Their Battle Against Harvard. "A group that opposes affirmative action filed an appeal Tuesday of a federal ruling that Harvard had not intentionally discriminated against Asian-American applicants, ratcheting up a challenge to decades of Supreme Court decisions upholding race-conscious selection in college admissions." [NYT] Read the brief from the firms Consovoy McCarthy and Bartlit Beck.

• A Nervous Wait for Louisiana Abortion Clinic at Center of Supreme Court Fight. "The future of the Hope clinic, located in the city of Shreveport in northwestern Louisiana, hangs in the balance. The clinic is housed in a windowless brick structure on a corner lot several miles from the casino hotel-dominated skyline of the city of about 190,000 people. Its fate lies in the hands of the U.S. Supreme Court, which on March 4 is set to hear the clinic's challenge to a tough Louisiana law placing new restrictions on doctors who perform abortions. If the law goes into effect, the clinic may have to close down." [Reuters]

• Ruth Bader Ginsburg Versus the Equal Rights Amendment. Winston & Strawn's Linda Coberly, the firm's Chicago managing partner and chair of the appellate and critical motions practice, leads the ERA Coalition's legal task force. Coberly, speaking about RBG's recent commentary on the ERA, says: "I wasn't surprised to hear her express a preference for a new beginning, because she has said that before. She was asked a political question, not a legal one." [The Atlantic]

• Harvard Law School Library Opens Antonin Scalia Collection to the Public. "While most of the collection consists of papers from his time on the Supreme Court and the Washington D.C. Court of Appeals, the library will not release any case materials during the lifetime of other justices and judges involved in the cases for which Scalia worked." [The Harvard Crimson]

• Conservatives, Liberals Mull Next Supreme Court Battle With Memories of 2016. "If a vacancy were to occur this presidential election year—with the staying power of 86-year-old Associate Justice Ruth Bader Ginsburg, a four-time cancer survivor, a perpetual subject of speculation—Democrats and liberals will say it should remain open through the November election." [USA Today]