Meet the Lawyers Arguing Today's Abortion Rights Case | Why Gorsuch Would Be 'Grateful' | CFPB Headlines, and More
Welcome to Supreme Court Brief, and thanks for reading! The Supreme Court today hears its first major abortion rights case since the departure of Justice Kennedy. Plus, if you could just answer Justice Gorsuch's question, that would be great.
March 04, 2020 at 10:32 AM
7 minute read
Welcome to Supreme Court Brief and the final day of the February argument session. The justices' last arguments today come in the term's major abortion case, and the advocates and observers will be focused on any clues about where the court—now without Justice Anthony Kennedy—is headed in this contentious area of the law. We look at the two female advocates who will face off. Plus, if you could just answer Justice Neil Gorsuch's question, that would be great, OK?
Thanks for reading, and feedback is always welcome and appreciated. Contact Marcia Coyle at [email protected] and follow her on Twitter at @MarciaCoyle.
Abortion Rights Case Tests a New Court
This morning, the justices hear arguments in their first major abortion-related case since their 2016 ruling in Whole Woman's Health v. Hellerstedt. Like that Texas case, June Medical Services v. Russo involves a clinic's challenge to Louisiana's requirement that abortion physicians have hospital admitting privileges within 30 miles of the abortion facility. The state, in turn, challenges the third party standing of doctors and clinics to bring these challenges on behalf of patients.
A 5-3 majority struck down the Texas requirement in 2016 because it served no medical benefit and thus was an undue burden on women's access to abortion. The Louisiana law was modeled after the Texas law, but despite the court's 2016 decision, the U.S.Court of Appeals for the Fifth Circuit distinguished the two and upheld the Louisiana requirement.
What is different now? The most obvious difference is that Justice Anthony Kennedy, the key fifth vote in 2016, is no longer on the bench—and Trump-appointed justices Neil Gorsuch and Brett Kavanaugh are now members of the court. Although the court's 1973 landmark abortion decision, Roe v. Wade, is not directly implicated by the parties, the outcome in June Medical could offer keys to where the court is headed on abortion rights.
Two female advocates will argue today: Julie Rikelman, litigation director at the Center for Reproductive Rights since 2012, represents the clinic. Rikelman will be making her first high court argument. A Harvard Law graduate, Rickelman was formerly vice president of litigation at NBC Universal. In a 2011 interview with ALM's The Careerist, Rikelman said: "My daughters played a major role in my decision [to leave the private sector]. Having two girls, I wanted them to be proud of me." She added that she always knew she wanted to go into civil rights: "I'm about to turn 40, and life is short."
Her opponent this morning, Louisiana Solicitor General Elizabeth Murrill, is by name a familiar face to the justices. She argued in 2018′s McCoy v. Louisiana against Seth Waxman, partner at Wilmer Cutler Pickering Hale and Dorr. She also appeared this term on Oct. 7 to argue for the state in Ramos v. Louisiana against Stanford Law's Jeffrey Fisher.
A Louisiana State University Law Center graduate, Murrill was a U.S. Supreme Court fellow in 2007-08 at the Federal Judicial Center and taught appellate advocacy and legal writing at her law school for 10 years. In 2016, Attorney General Jeff Landry appointed her as the state's first solicitor general. Before assuming that post, she was director of administration at the Louisiana Department of Justice.
Deputy Solicitor General Jeffrey Wall also will represent the Trump administration as an amicus supporting Louisiana. The Justice Department said it supports overturning the court's 2016 ruling in Whole Woman's Health.
Meanwhile, 39 Senate Republicans, participating as an amicus curiae, asked the Supreme Court to reconsider Roe v. Wade. On the other side, supporting June Medical, hundreds of female lawyers, sharing personal stories with the justices, urged the court not to restrict access to reproductive health services.
The two-week February argument session ends with the abortion argument. A total of 24 lawyers will have argued with only three women at the lectern. Besides Rikelman and Murrill, assistant to the solicitor general Erica Ross argued as amicus supporting Opati in the case Opati v. Republic of Sudan on Feb. 24.
A 'Grateful' Gorsuch Would Like an Answer
Justice Neil Gorsuch wants his questions answered during arguments in the U.S. Supreme Court, sometimes expressing frustration with the advocates standing before him. During Tuesday's fast-paced arguments involving the Consumer Financial Protection Bureau, a particularly notable moment of Gorsuch impatience occurred in an exchange with Kirkland & Ellis partner Paul Clement.
The justice was pressing Clement on how to distinguish single-director agencies from cabinet officials and multi-member agencies for purposes of presidential removal power. Clement, who was making his 101th argument, replied, "So I want to be responsive," but added that he wanted first to point out that "you don't avoid drawing a line by adopting the solicitor general's position."
Gorsuch said he understood, "now if you could answer my question." Clement gave an answer, but not to Gorsuch's satisfaction. The justice rephrased the question and Clement answered: "I offer you two limiting principles, which I think is two more than the Solicitor General's offered you. But here's the first: The first is—"
Gorsuch cut off Clement. "If we could avoid disparaging our colleagues and just answer my question, I would be grateful," Gorsuch said. Clement then offered two limiting principles and added, "And I didn't mean to disparage my colleague. I was just saying the same limiting principle ultimately has to be in place for multi-member commissions."
Gorsuch appears to believe lawyers are not answering his questions directly or quickly enough. One tell-tale sign for advocates is the justice's regular comment at oral argument, "I'd be grateful" for an answer.
Just ask Jones Day partner Shay Dvoretzky. In 2016, while answering one of Gorsuch's very first questions as a justice, Dvoretzky was interrupted by the justice saying, "I'm sorry for interrupting, counselor. If you would just answer my question, I'd be grateful."
Supreme Court Headlines: What We're Reading
Will the Supreme Court Protect Agencies from Trump's Reach? "The court's decision in the case, Seila Law v. Consumer Financial Protection Bureau, could strip these agencies of their independence by expanding the president's power to remove their leaders," Jane Manners and Lev Menand write. [NYT] More here at NLJ: Justices Fret About Sweep of Any Ruling Against Consumer Protection Bureau; and here at NYT: Supreme Court Divided Over Trump's Power to Fire Head of Consumer Bureau
An Abortion Clinic's Fate Before a Transformed Supreme Court. "The decision in the case, June MedicalServices v. Russo, expected by June, will provide the first concrete evidence of how a transformed court regards the breadth and future of the constitutional right to abortion." [NYT] More here at Slate: Ladies' Week at the Supreme Court Again. And more here at CNN: Future of Roe v. Wade in Spotlight as Justices Consider Louisiana Abortion Clinic Case
U.S. Supreme Court Lets States Prosecute Immigrants for Identity Theft. "The U.S. Supreme Court on Tuesday widened the ability of states to use criminal laws against illegal immigrants and other people who do not have work authorization in the United States in a ruling involving identity theft prosecutions in Kansas." [Reuters] Read the decision here.
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