Welcome to Supreme Court Brief. The justices' decision to postpone the March argument session has ushered in uncertainty and new planning for Supreme Court advocates. Lawyers at Orrick, Herrington & Sutcliffe will miss their three turns at the lectern—at least temporarily. Plus: Despite the argument delay, the justices intend to carry on other regular business, including meeting Friday for their private conference. The Institute for Justice, which brought the 2005 takings challenge known as Kelo, is back with another takings petition which is on the conference list.

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.

 

The Challenge of 'Staying F resh' After Rare Postponement of Argument

 

The advocates who were in final preparation for arguments in the March session—now postponed—represented a mix of longtime high court veterans such as E. Joshua Rosenkranz, co-head of the Supreme Court and appellate practice at Orrick, Herrington & Sutcliffe, and Thomas Goldstein of Goldstein & Russell.

They also included lawyers prepared to make their debuts, including Ramzi Kassem, a professor at CUNY School of Law, and the founder of its CLEAR clinic, which represents the respondents in Tanzin v. Tanvir in partnership with the Center for Constitutional Rights and Debevoise & Plimpton.

"Because I have multiple cases in the queue at any given time, I often begin my prep many weeks in advance," said Rosenkranz, who represents Oracle. "Here, the process started as soon as we submitted our brief. That way I can pick up and focus intensely in the three weeks before the argument. I crammed a lot into my head over the past couple of weeks."

Rosenkranz said Monday would have been the first of three moot courts lasting five hours each to test his preparation. "I'm happy to have gotten word before that moot court process started. It's grueling!" he said. "The argument will be just far enough away that my brain will have purged key details. So I will have to climb the mountain again. But that comes with the territory. In the overall scheme of things, I feel lucky to have that sort of problem."

Goldstein, who represents Google, had a backup plan ready and now implemented. "Each of the law firms involved was responsible for identifying people familiar with the case and letting us know when they were available as judges," he said. "We've assigned the next three moot courts so we can continue to stay fresh but also advance the ball."

The delay does have something of an impact on some clients. Stephen Vladeck of the University of Texas School of Law had the first argument slot of the session on March 23. He represents three military members convicted of rape in a case involving the statute of limitations for their prosecutions.

"I've been in touch with one of my clients," he said. "I think the delay is frustrating insofar as it prolongs the uncertainty hanging over their appeals. But everyone understands that these are extraordinary times. These particular cases are direct appeals of criminal convictions where we won below, so my principal goal is whatever's in my clients' best interests. That may well include having the cases decided on the briefs this term versus waiting for a potential argument next term."

Ramzi Kassem, who would have made his first high court argument in the Religious Freedom Restoration Act "no fly list" challenge on March 24, said his clients "have already waited for years for their day in court" but are "patient" and understand postponement was the right decision for everyone.

"The unexpected and indefinite delay will create some inefficiencies down the line for counsel, with the need to ramp up again for argument," he said. "That process will be more or less effort-intensive depending on how much time passes between now and the date argument is rescheduled.

But sometimes a positive follows a negative. "We've been working on our reply brief on a very expedited schedule," said Orrick partner Kelsi Corkran (at left), counsel to Roxanne Torres in Torres v. Madrid. "Now we have the full 30 days—a silver lining."

Advocates at Orrick, Herrington & Sutcliffe were scheduled to argue in three of those 11 postponed hours, including in back-to-back cases.

Corkran last argued in the high court in City of Hays, Kansas v. Vogt in 2018. Orrick partner Brian Goldman was to make his high court debut in Pereida v. Barr, an Immigration & Nationality Act case involving eligibility for relief from removal when a noncitizen has a criminal conviction. Goldman is a former clerk to Justice Sonia Sotomayor.

The Pereida case is a pro bono effort, Goldman said in an interview. "We had litigated the issue in a couple other cases and reached out to Mr. Pereida's counsel when we saw his decision come down from the Eighth Circuit," he said. —Marcia Coyle

 

Eminent Domain Fight Back at SCOTUS

 

The Institute for Justice lost the eminent domain battle in the now well-known 2005 decision in Kelo v. City of New London, Connecticut, but it never lost interest in pursuing how the use of eminent domain satisfies the Fifth Amendment's takings clause. The 5-4 decision triggered a renewed interest in eminent domain abuses around the country, numerous law review articles, at least two books and a movie, Little Pink House.

The group is back in the Supreme Court with a petition that asks the justices in a Colorado case to show that the court meant what it said in Kelo: Eminent domain cannot be supported by "the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit."

"The issue we are trying to get the court to address—did it really mean what it said in Kelo about limitations on public use," Institute for Justice attorney Jeffrey Redfern said. "We think Kelo was a disaster but it said some good things: if the purpose is to benefit a particular private entity, that's illegitimate. There's a huge split around the country about the language."

Some courts, he said, examine why the taking itself is occurring without assuming there is a public use just because it will benefit a road or park. Others, like the Colorado Supreme Court, a taking will be approved if its stated purpose, pretextual or not, is a classic public purpose, Redfern said.

The facts in the case Woodcrest Homes v. Carousel Farms Metropolitan District are a "little unusual," said Redfern, "but that's what makes this a pretty good case."

Colorado allows the creation of quasi-municipal districts with powers to tax, issue bonds and condemn property through eminent domain. Private developer Carousel Farms created such a district, staffed with its own employees, said Redfern, after Woodcrest Homes balked at an offer for a land parcel that Carousel wanted for a development. Carousel, acting through its municipal district condemned the parcel directly.

The state court of appeals ruled that the taking was not for a public purpose but to ensure that the agreement between the developer and the town was satisfied so the developer could seek approval of its final plat. The state supreme court reversed.

Mark Fleming, partner at Wilmer Cutler Pickering Hale and Dorr, urges the justices to deny the petition for at least three reasons: no federal question was pressed in the lower courts and the Colorado Supreme Court ruling rested solely on state law; the state supreme court assessed the condemnation under a more rigorous standard of public purpose than suggested by Kelo, and any conflict among other courts is "illusory."

"Those decisions all recognize, as the Supreme Court of Colorado did, that a taking of property may be invalidated when it rests on an improper pretextual basis," wrote Fleming in his opposing brief. "The Supreme Court of Colorado rejected Petitioner's challenge not because it questioned that proposition, but because it found, based on the record before it, that the taking at issue here served legitimate public purposes."

The justices are scheduled to take their first look at the petition during their March 20 conference. —Marcia Coyle

 

Supreme Court Headlines: What We're Reading

 

America Needs a Defender General. "The defender general's responsibility to represent the collective interests of criminal defendants would introduce a fundamentally different perspective to many Supreme Court cases. In some instances, where a particular defendant's interests perfectly aligned with defendants' interests more generally, the defender general could directly represent the defendant. But in other cases, the defender general might appear as an amicus, arguing for the rule most likely to persuade the Court—even when doing so meant disagreeing with the defendant in the case." [The Atlantic]

The Supreme Court Didn't Need to Make This Decision. "The Supreme Court went too far in postponing oral arguments altogether when it easily could have conducted those arguments as scheduled through live video feed. The court's decision may well reflect a long-standing antipathy toward readily available technology that could enable it to continue doing business as usual." [CNN]

Joe Biden's Pledge Could Change the Look of the Supreme Court. "Among the possible African-American candidates whose names have been circulated by liberal advocates over the years are: US District Court Judge Ketanji Brown Jackson, in Washington, DC, 49; California Supreme Court Justice Leondra Kruger, 43; and NAACP Legal Defense Fund president Sherrilyn Ifill, 57, and New York University law professor Melissa Murray, 44." [CNN]