Good morning and welcome to Supreme Court Brief! The justices return this morning to the bench for oral arguments at the start of the February session, and Paul Clement will appear for the 100th time, joining a rare group of advocates who've hit triple digits. The justices could issue opinions this week, and we're awaiting word on any new grants. In the wings: A leading First Amendment lawyer at Davis Wright's pitched the court on a challenge to a "revenge pornography" state law. Scroll down for headlines, and more, including a link to our piece on the death of Lawrence Wallace, a former deputy U.S. solicitor remembered as a courageous civil servant.

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.

Clement Joins the 100 Case Club

Former U.S. Solicitor General Paul Clement, partner at Kirkland & Ellis, is about to enter the rarified pantheon of advocates who have argued 100 cases before the U.S. Supreme Court.

He will reach that number on Feb. 24, representing Atlantic Coast Pipeline in the consolidated cases U.S. Forest Service and Atlantic Coast Pipeline v. Cowpasture River Preservation Association. Eight days later, he will argue his 101st case, Seila Law v. Consumer Financial Protection Bureau, a key separation of powers dispute in which the justices appointed Clement to argue on behalf of the consumer bureau.

Clement said in an interview that it has been an honor to live his professional life among members of the Supreme Court bar, especially because of their collegiality and camaraderie even if they were adversaries. Contrasting that with modern-day rancor and division, Clement said, "The weirder this town gets, the better it is" to be a Supreme Court advocate.

Best we can tell, only two other living lawyers have made it to 100, both denizens of the SG's office: current Deputy SG Edwin Kneedler, with upwards of 140 arguments under his belt, and Michael Dreeben, also a deputy who retired last July after arguing 105 cases. As of January, Dreeben is now a partner at O'Melveny & Myers. Larry Wallace, former deputy SG, who argued 157 cases before retiring in 2003, died February 13.

But in the distant and middle past, at least six other lawyers appear to have exceeded 100 Supreme Court arguments. (Exact numbers are hard to come by.) In 1812, the court issued a rule limiting oral argument to only two lawyers per side.

"That rule contributed to a growing trend of Supreme Court specialists who came to dominate advocacy before the court," according to David Frederick of Kellogg Hansen Todd Figel & Frederick in his book Supreme Court and Appellate Advocacy.

For the landmark 1819 case of McCulloch v. Maryland however, the court waived the rule. Three of the lawyers arguing went on to argue more than 100 cases: Daniel Webster (223,) William Wirt (138) and Walter Jones (317.) The late solicitor general Rex Lee once wrote that Virginia lawyer Jones's high number "is a record which, given today's realities, is surely safe for all time. For Mr. Jones, there will be no Roger Maris or Hank Aaron." Francis Scott Key, of Star-Spangled Banner fame, was said to have argued roughly 125 cases.

And don't forget two noted 20th century lawyers who reached the three-figure milestone: John W. Davis, who argued in both the Youngstown Steel case and Brown v. Board of Education, argued 140 times, both in private practice and as solicitor general. And Erwin Griswold, the famed dean of Harvard Law School and solicitor general, argued 127 cases.

One other data point to put the 100+ milestone in sobering perspective: Williams & Connolly partner Lisa Blatt has argued more cases at the Supreme Court than any other woman in history: a total of 39. In a recent law review article, Blatt wrote: "Parity is still nowhere to be seen. There is an appalling dearth of female Supreme Court advocates."

Goldstein & Russell's Sarah Harrington got some attention on Twitter the other day with a remark about the upcoming February argument cycle: "The hearing list for February SCOTUS arguments. An equal number of appearances by guys named Paul as by… women." —Tony Mauro

Justices Face 'Revenge Porn' Case Testing Free Speech Rights

"Revenge porn," the sending of sexually explicit images of individuals without their consent, has arrived at the U.S. Supreme Court for the first time in a case touching on free speech, privacy and new technology.

In the case Austin v. Illinois, Bethany Austin, represented by Davis Wright Tremaine partner Robert Corn-Revere (at left), last week asked the justices to review an Illinois Supreme Court decision that upheld the state statute criminalizing the nonconsensual dissemination of private sexual images.

The state law was being used to punish Austin even though her actions had nothing to do with "revenge" and "porn," Corn-Revere told the justices. "Review of the decision below is necessary to keep the starch in the standards for evaluating laws that could make criminals of countless numbers of Americans," according to his petition.

New Jersey in 2004 adopted the first porn revenge law and three more were enacted in the next nine years. Between 2013 and 2017, 36 states had adopted laws confronting the dissemination of sexually explicit images. Today, 46 states, the District of Columbia and Guam have revenge porn statutes on the books.

Because revenge porn laws are relatively new, there have not been many court decisions on their constitutionality. In the few rulings that have been issued, the presence or lack of an intent requirement has been generally decisive.

Corn-Revere said the "proliferation of laws in a very short time that affect so many people, the impact on millions who do use [the internet] to communicate and also jurisprudential issues of free speech online" make the questions raised by Austin's case "particularly significant."

Austin ran afoul of the Illinois law after she broke up with her fiancé amid what she said was his affair during their engagement, according to her Supreme Court petition. Austin and her finance shared an iCloud account that automatically sent Austin copies of all text messages her fiancé sent and received, which is how she said she discovered the affair. After the breakup, the petition states, her ex-fiancé told friends and family the relationship ended because Austin had gone "crazy" and "no longer cooked or did household chores."

Austin, seeking to counter his version of the breakup, sent to some friends and family members a letter to which she attached copies of some of the texts she had received containing messages and nude photos between her fiancé and his paramour. Her former fiancé learned of the letter and attachments and contacted the police.

Austin challenged the law's constitutionality as a content-based speech restriction and overly broad. The trial court agreed with Austin and said the law prohibited "an entire category of protected speech" and that no "illicit motivation is mentioned in, or required by, the statute."

The Illinois Supreme Court, voting 5-2, reversed. The court applied a lesser standard of scrutiny—called "intermediate scrutiny"—because it said the law was a content-neutral time, place and manner restriction. The state's high court also ruled that the law served a substantial government interest in protecting individual privacy rights.

Austin is not the type of person that revenge porn laws were designed to stop, Corn-Revere asserted, and the speech she engaged in is not what proponents of such laws cited as the problem to be solved.

"When you think of how this [law] can be applied, it really strikes me as good intentions gone seriously awry," Corn-Revere said. "There are people who are putting the Illinois law forward as a model for a federal bill. I think it does heighten the importance of the issue for the court to address now." —Marcia Coyle

Supreme Court Headlines: What We're Reading

• In Case on Wealth Test for Green Cards, a Scathing Sotomayor Dissent."The new order drew a scathing dissent from Justice Sonia Sotomayor, who said the Trump administration had become too quick to run to the Supreme Court after interim losses in the lower courts. 'Claiming one emergency after another, the government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming limited court resources in each,' she wrote. 'And with each successive application, of course, its cries of urgency ring increasingly hollow.'" [NYT] More here at The Washington Post; SCOTUSblog here; and CNN here. Read the court's order here.
• Larry Wallace, Former Deputy Solicitor General and Courageous Civil Servant, Dies at 88. Former deputy U.S. Solicitor General Lawrence Wallace, who died February 13 at age 88, is being remembered as a fearless civil servant who, like the Justice Department lawyers who recently resigned from the Roger Stone case, resisted pressure from higher-level officials. Wallace retired from the solicitor's office in 2003 after arguing 157 cases before the U.S. Supreme Court, a 20th century record. [NLJ]
• U.S. Supreme Court to Decide Winner in Case of Gas Pipeline vs. Appalachian Trail. "The Trump administration has weighed in on behalf of the project, with Solicitor General Noel Francisco arguing that while the National Park Service administers the trail, the land beneath it is controlled by the Forest Service. Environmentalists fighting the construction argue that no pipeline has been granted a right of way across the trail on federal land since it became part of the park system. Other crossings are on private or state lands or on easements that predate federal ownership." [The Washington Post]
• Oracle Says Microsoft, IBM Are Faking Amicus Support for Google."An Oracle newsroom blog post under Executive Vice President Ken Glueck's name insinuates—no, make that comes right out and charges—that Google has bought some of its tech industry amici curiae, while accusing others of switching sides out of naked self-interest. Even by the acrimonious standards of Google v. Oracle, which will be heard March 24 at the Supreme Court, Glueck's attacks are notable," our colleague Scott Graham writes. [NLJ] The Justice Department has filed a brief backing Oracle.
• SCOTUS to Face Abortion, Gun Cases in Second Half of Term. "But with so many blockbuster cases, other consequential ones are flying under the radar, said Baker Botts' Scott Keller. Cases on discrimination, religious liberty, and administrative law could show the trajectory of the Roberts Court, Keller said. And they could show whether the newly constituted conservative majority will take the court sharply to the right, or whether Chief Justice John Roberts will temper that majority with his swing vote." [Bloomberg Law]
• House Impeachment Lawyer Joshua Matz Will Lead Kaplan Hecker's DC Expansion.Joshua Matz, who recently worked as counsel for the House Judiciary Committee during the impeachment proceedings, is returning to Kaplan Hecker & Fink as a partner and will help the boutique firm launch a new office in Washington, D.C. Michael Skocpol, a recently hired associate and former clerk for Justice Sonia Sotomayor, will also be associated with the D.C. office. [NLJ]
• RBG's Remarks on Equal Rights Amendment Are Used Against Advocates in Court. The litigation boutique Consovoy McCarthy, representing several Republican-led states hoping to derail the revival of the Equal Rights Amendment, filed court papers Wednesday that rely in part on an unlikely voice: Justice Ruth Bader Ginsburg. [NLJ]