Welcome to Supreme Court Brief. The justices today are expected to issue orders from their Feb. 28 conference, and we'll keep an eye out for possible opinions Tuesday morning. A trio of former Scalia clerks are set to argue Tuesday in the big separation-of-powers case Seila Law v. CFPB—our report is below. Plus: leading advocates turned out to salute Kirkland's Paul Clement, who recently argued his 100th. And if you missed it: an advocate's "damn" at oral argument made waves.

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.

Trio of Former Scalia Clerks Will Argue CFPB Separation-of-Power Case

Tomorrow morning, three lawyers—all former clerks of the late Justice Antonin Scalia—will argue over the fate of the Consumer Finance Protection Bureau in the most important separation-of-powers case of the term.

In the case Seila Law v. CFPB, the three former Scalia clerks—all veteran Supreme Court advocates—are U.S. Solicitor General Noel Francisco (1997); Kannon Shanmugam, partner at Paul, Weiss, Rifkind, Wharton & Garrison (1999), and Kirkland & Ellis partner and former solicitor general Paul Clement (1993). Also appearing at the lectern will be Douglas Letter, general counsel to the U.S. House of Representatives and longtime former Justice Department appellate advocate.

Although it's not unprecedented to see two or even three former clerks of the same justice at the lectern, it is rare. Another recent clerk trifecta occurred in 2018 in City of Hays v. Vogt, a Fifth Amendment case. Three former clerks to Justice Ruth Bader Ginsburg in that case were Virginia solicitor general Toby Heytens, then-assistant to the solicitor general Elizabeth Prelogar, now partner in Cooley, and Kelsi Corkran, partner in Orrick Herrington & Sutcliffe.

The central issue in the CFPB case is whether the single director structure of the CFPB which limits the president to removal of the director "for cause" violates the Constitution's separation of powers. The justices also directed the parties to argue whether the removal restriction can be severed from the rest of Title X of the Dodd-Frank Act creating the CFPB.

The case contains another Scalia connection—a 1988 precedent. The Supreme Court in Morrison v. Olson upheld the constitutionality of the Independent Counsel Act, which had a for-cause removal provision, in an 8-1 decision. The lone dissenter was Scalia who articulated what is now known as the unitary executive theory, embraced by many conservatives, including vigorously by Attorney General William Barr. Justice Brett Kavanaugh endorsed a robust view of presidential authority over the executive branch in his dissenting opinion in the D.C. Circuit's decision in PHH v. CFPB.

The justices have expanded the argument from 60 minutes to 70 minutes, with 20 minutes each for Francisco, Shanmugam and Clement, and 10 minutes for Letter. Because the government agrees with Shanmugam on the structural issue, Clement is the court-appointed amicus defending its constitutionality as is Letter. Francisco and Shanmugam disagree whether the for-cause provision can be severed. Francisco says yes; Shanmugam argues the entire Title X should be struck down.

The CFPB has been under criticism from conservative and business groups from its beginning and has been strenuously defended by liberal, good government and consumer organizations.

More than three dozen friend-of-the-court briefs have been filed by attorneys with such firms as Susman Godfrey, Cohen, Milstein, Hausfeld & Toll, Mayer Brown, Jones Day, Gibson, Dunn & Crutcher, Baker Botts, Baker & Hostetler, O'Melveny & Myers and Boies Schiller Flexner.

And the final Scalia connection? The justice's widow, Maureen, reportedly will attend the arguments—her first time since the justice's death in February 2016. —Marcia Coyle

Supreme Court Advocates Join to Toast Paul Clement's 100 Arguments

The Pennsylvania Avenue office of Kirkland & Ellis was ground zero for the Supreme Court bar on February 27, as Paul Clement's friends, colleagues, adversaries and government allies celebrated his 100th argument before the nation's highest court.

No justices were on hand, befitting their reluctance to play favorites—though Chief Justice John Roberts Jr. congratulated Clement from the bench at the end of his 100th argument on February 24, telling him, "On behalf of the court, I extend to you our appreciation for your advocacy before the court and dedicated service as an officer of this court."

Maureen Scalia, widow of Justice Antonin Scalia attended the celebration. Clement, like many at the event, was a former Scalia clerk.

From the Justice Department, current solicitor general Noel Francisco, principal deputy SG Jeffrey Wall and deputies Edwin Kneedler and Malcolm Stewart, were on hand, along with assistant attorney general Makan Delrahim. White House counsel Pat Cipollone was also spotted.

Newly minted Ninth Circuit Judge Daniel Bress, a former Scalia clerk, also attended, as did Jeffrey Minear, counselor to Roberts.

Among Supreme Court advocates joining the festivities were Michael Dreeben of O'Melveny & Myers, Deanne Maynard of Morrison & Foerster, David Frederick of Kellogg, Hansen, Todd, Figel & Frederick, David Cole of the American Civil Liberties Union, Lisa Soronen of the State and Local Legal Center, Erik Jaffe of Schaerr Jaffe, Kelsi Corkran of Orrick Herrington & Sutcliffe, former SG Gregory Garre of Latham & Watkins, John Elwood of Arnold & Porter, Roy Englert Jr. of Robbins, Russell, Englert, Orseck, Untereiner & Sauber, Irv Gornstein of the Supreme Court Institute at Georgetown and Kirkland partners Neil Eggleston, Erin Murphy, Bartow Farr and Mark Filip. Viet Dinh, Clement's longtime partner at Bancroft, now chief legal officer of Fox, also spoke at the event.

Clement, 53, seemed relaxed even though he will be arguing his 101st Supreme Court case on March 3. The court appointed Clement to argue in Seila Law v. Consumer Financial Protection Bureau on that day, putting him in the position of defending the bureau.

There was much speculation at the reception about why the court appointed Clement, whose conservative credentials would have likely drawn him to the opposite side in the case. "It was a clever move by Justice Kagan," said Sidley Austin partner Peter Keisler. When the court appoints lawyers to take on orphaned positions like this one, it is usually the circuit justice who picks the lucky lawyer. The Seila case arose from the Ninth Circuit, and Kagan is the circuit justice of the Ninth.

But most of the talk was about Clement's skill and camaraderie. Some comments about Clement from the guests:

>> "I was there at his first argument [in 2001] and I was there for his 100th. He was fantastic then and fantastic now," said Gibson Dunn & Crutcher partner Ted Olson, who was solicitor general when Clement served as deputy.

>> "He was so generous with his time in helping prepare me. His advice was absolutely on point," said Kirkland partner Dale Cendali, who argued in a trademark case in January.

>> "Mooting Paul is a total waste of time" because of his consummate preparedness, said Williams & Connolly partner Lisa Blatt in remarks she gave at the event. "Close observers say that the court created the two-minute rule so they could listen to Paul." She was referring to the court's recent decision, not always obeyed, to allow advocates to make their case uninterrupted for two minutes before the torrent of questions begins.

Clement thanked his colleagues, clients, friends and family. Praising his allies and adversaries in the Supreme Court bar, he said, "The Supreme Court bar has not forgotten to be collegial." As for his wife Alexandra and three sons, Clement said that his 100 arguments mean "two hundred weekends when I was working the whole time" and sometimes was grumpy. (Clement used roughly the same line in 2009 when he was feted for reaching 50 Supreme Court arguments.) —Tony Mauro

Supreme Court Headlines: What We're Reading

A Rare 'Damn' Reverberates Among US Supreme Court Advocates. The word "damn" easily slips off the lips of many people, as it is so much a part of today's lexicon. But in the formal environment of the U.S. Supreme Court, an advocate's use of the word during arguments Monday resounded with some lawyers present. Shocking? Hardly. But definitely striking. Advocates at the Supreme Court tend to go to great lengths to avoid saying expletives or profanity. [NLJ]

DC Circuit Says Donald McGahn Can Defy a US House Subpoena. Judge Judith Rogers, in dissent, said the ruling "all but assures future presidential stonewalling of Congress, and further impairs the House's ability to perform its constitutional duties." Judges Thomas Griffith and Karen LeCraft Henderson formed the majority. The House has until march 9 to file any rehearing petition. [NLJ]

CFPB Case Heads to Supreme Court This Week. "A decadelong battle over the quasi-independence of a U.S. consumer-finance regulator lands at the Supreme Court this week, in a case that could have broad consequences for the structure of the federal government." [WSJ]

President Trump's Immigration Crackdown Inundates Supreme Court. "The glut of cases comes as the president makes his approach to immigration central to his reelection campaign. For a court that tries valiantly to avoid politics, its rulings could become fodder in that effort." [USA Today]

How Will Trump's Supreme Court Remake America? "The line between law and politics has always been blurry, and judges have often professed to sharpen it. Claims of unblinking fidelity to the text have increasingly become the crowning orthodoxy on the right in recent decades. Now [Justice Neil] Gorsuch and his conservative colleagues have a chance to harness that energy to transform the law." [The New York Times]

Roberts Faces Moment of Truth on Abortion Issue at Supreme Court. "The argument will test Roberts's appetite for rolling back abortion-rights precedents and could foreshadow a fight over the landmark 1973 Roe v. Wade ruling. The justices will rule by the end of June, potentially making abortion and the court itself central issues in the November election. President Donald Trump's administration is supporting the Louisiana law." [Bloomberg Law]