Good morning and welcome to Supreme Court Brief. The justices picked up the pace of decisions on Monday, issuing four rulings in argued cases and a per curiam opinion. Chief Justice John Roberts Jr. presided alone from the conference room on March 20 while the other justices participated via teleconference. We check in on Justice Thomas's latest challenges to court doctrines in two of Monday's decisions. A Paul Clement petition demonstrates the costly gamble of seeking Supreme Court review. Plus: Fix the Court is out with a report on perks received by justices who visit public colleges.

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 Doubting Thomas Raises More Questions

Justice Clarence Thomas has never been shy about questioning established court doctrines and he had much to say on Monday about the justices' work in two cases.

In this week's ruling in Allen v. Cooper, Thomas, in a concurring opinion, said he believed the question whether copyrights are property within the original meaning of the Fourteenth Amendment's due process clause remains open. The justices ruled in a 1932 decision that copyrights are a form of property, but, Thomas wrote, that was in the context of state tax laws, not the due process clause, and the court has never analyzed the Fourteenth Amendment's text in the due process context.

"I would, however, be willing to consider the matter in an appropriate case," Thomas said.

In the same case, Thomas agreed with his colleagues that a 1999 decision was binding precedent in the court's ruling that Congress lacked the authority to withdraw states' sovereign immunity from copyright infringement suits. But, he wrote, in a concurring solo opinion, "I cannot join the court's discussion of stare decisis."

The court's claim that a "special justification" is needed to overrule precedent because error alone "cannot overcome stare decisis," Thomas wrote, "does not comport with our judicial duty under Article III." If that 1999 decision Florida Prepaid v. College Savings Bank were "demonstrably erroneous," he wrote, "the Court would be obligated to 'correct the error, regardless of whether other factors support overruling the precedent.'"

In the court's immigration decision Monday in Guerrero-Lasprilla v. Barr, Thomas, in part of his dissenting opinion, said he has come "to have doubts about our modern cases applying the presumption of reviewability." Justice Samuel Alito Jr. did not join this part of the dissent.

Courts understand the presumption to mean they generally have jurisdiction to grant relief when individuals are harmed by unlawful agency actions—even where a statute is silent about judicial review. Thomas wrote that the modern presumption of reviewability, which the majority relied on in its decision, "goes far beyond this traditional approach."

Thomas cited three problems: "First, it elevates the supposed purpose or 'spirit' of the Administrative Procedure Act over the statute's text. Second, the court's test for rebutting the presumption relies heavily on legislative intent, inviting courts to discern the mental processes of legislators through legislative history." Third, to overcome the presumption, the clear-and-convincing-evidence requirement of congressional intent to preclude judicial review "appears to conflict with the text of the Constitution." —Marcia Coyle

The Court of Seeking Supreme Court Review

The odds of winning Supreme Court review of a petition for certiorari are daunting even for those veteran high court advocates who, some court watchers believe, have an edge because of the familiarity of their names and the quality of their work.

The court receives thousands of petitions every year, and even the veterans, of course, won't convince the court every time. Just ask former George W. Bush solicitor general Paul Clement, partner in Kirkland & Ellis, who recently marked his 101st argument before the justices. Clement had four petitions on the March 20 conference list. The justices denied review in two and two remain pending.

In one of the two Clement petitions that was denied—Faust v. B.K.—Clement, representing the director of the Arizona department of Child Safety, challenged certification of a class of children in the state foster care system who claim they are at serious risk of emotional and physical harm.

The Arizona attorney general approved spending $300,000 with Kirkland & Ellis for certiorari-stage briefing, according to the state's contract. The contract said the state had not agreed, at the time, to appoint Clement for the merits stage. Kirkland was a subcontractor. The state's outside counsel, Cohen Dowd & Quigley, recommended Clement.

"Mr. Clement is recognized as among the elite Supreme Court advocates and listed as one of the attorneys with the most wins at the Supreme Court," Arizona contract records said. "Mr. Clement's work history, litigation experience of cases with these issues and previous representation of the state of Arizona provide a unique set of skills and understanding which benefit the state in obtaining these services."

The Kirkland team also included partners Erin Murphy and Matthew Rowen and associate Joseph Schroeder. On the other side of the case, Perkins Coie partner Joel Nomkin, counsel to B.K., had asked the justices not to review the lower court ruling.

It's not uncommon for major U.S. law firms to charge state and local clients for Supreme Court litigation. Gibson, Dunn & Crutcher charged $75,000 to the city of Boise, Idaho, to bring a petition challenging a Ninth Circuit homelessness ruling. The contract said the firm would have charged an additional $225,000 for any merits briefing. (The court declined the petition.) In other instances, firms provide pro bono Supreme Court services for state and local government clients. —Marcia Coyle

High-Flying Justices

An eye-opening report is shedding new light on the sometimes extravagant trips of Supreme Court justices and the state universities that host them. Fix the Court, which has pressed for greater transparency and other reforms from the Supreme Court and lower federal courts posted the report, was written by researchers Tyler Cooper and Dylan Hosmer-Quint and edited by executive director Gabe Roth.

They highlight Justice Sonia Sotomayor's trip in 2016 to be the commencement speaker at the University of Rhode Island. From documents supplied to Fix the Court, her flight cost $1,045. Up to 11 hotel rooms were set aside for her, according to a university email: "1 room for her, 8 rooms for her security staff – which was at the request of her office, and 2 additional rooms for her godson's family." She did not report the trip on her financial disclosure form.

In another discovery, the organization found that Justice Clarence Thomas reported on his 2018 financial disclosure form how much he was paid for teaching gigs at the University of Kansas School of Law and the University of Georgia School of Law, but he neglected to report that the universities were paying for his lodging and travel. Other takeaways from the report:

>> Federalism at work: The Freedom of Information Act does not apply to the judiciary, so it is impossible to invoke the FOIA to obtain Supreme Court and lower court internal emails, letters and the like. But states have their own FOI laws, so Fix the Court targeted them to ferret out documents pertaining to justices' trips to state-run universities. The organization made 21 requests for records to 19 state institutions about justices' visits and received 13 batches and 3,973 pages of documents.

>> Quick replies: Other branches are usually reluctant to confess error when it comes to ethical missteps or financial disclosure omissions. But when presented information about their disclosure gaps, Justices Clarence Thomas and Sonia Sotomayor said on March 23 they would "amend the financial disclosure reports to include reimbursements that had been omitted from the reports … at the earliest possible opportunity," according to court public information officer Kathy Arberg in an email to Roth. She added, "Thank you for bringing this matter to our attention."

>> Situational awareness: Some of the correspondence unearthed for the report indicated that justices' staffs were aware of possible improprieties. In 2016, when preparations were being made for Justice Stephen Breyer to travel to a University of Texas event, the university sent to Breyer's chambers a draft evite, which indicated that tables for eight could be bought for $4,000.

In response Toni Daluge, an assistant to Breyer replied, "I must have our Public Information Office take a quick look but my one observation is that I hope this is not a fundraiser as the justice cannot participate in any fundraising event." The university swiftly wrote back, changed the evite and underscored that all the proceeds would go toward "recovering costs of this particular event." —Tony Mauro

Supreme Court Headlines: What We're Reading

Hogan Lovells Partner Cate Stetson Looks Ahead to Milestone of 100 Appellate Arguments. Hogan Lovells appellate partner Cate Stetson speaks about her appellate career, how she prepares for arguments (spoiler alert: it involves cheeseburgers), and the perennial question: Why do so few women argue before the Supreme Court? [NLJ]

Court administration

The One Change John Roberts Can Make to Depoliticize the Supreme Court. "If Roberts is serious about protecting his fellow jurists from future political attacks, then he must do more than issue stern statements of disapproval. Instead, he should reconsider the way the court conveys its decisions to the public. Specifically, he should make per curiam opinions—anonymous opinions, issued without disclosing the identity of the authoring judge or the voting blocs' membership—the new standard." [Politico]

Supreme Court's 'Conference Handshake,' a 19th Century Tradition, Takes a Pause. The "Judicial Handshake" at the Supreme Court has been a tradition since the days of Chief Justice Melville W. Fuller in the late 19th century, according to the court. When the justices assemble to go on the bench each day and at the beginning of the private conferences, each justice shakes hands with each of the other eight. Fuller instituted the practice as a reminder that differences of opinion on the court did not preclude overall harmony of purpose. [NLJ]

Outbreaks of Disease Have Shuttered the Supreme Court Going Back More Than Two centuries. "When the U.S. Supreme Court announced this week that its March sitting of oral arguments would be postponed 'in keeping with public health precautions recommended in response to COVID-19,' the statement included some historical references for support—going back as far as 227 years ago." [ABA Journal]

Coronavirus May Force Tech-Averse Supreme Court Into Modern Era. "The virus is bound to force Supreme Court justices into new territory. They may open their operations in more modern ways. Or, if they move in the opposite direction and shun any high-tech alternative, they might postpone all previously scheduled March and April oral argument sessions, a total 20 disputes, until next summer or fall." [CNN] The advocacy group Electronic Frontier Foundation has more here.

The cases

Darius Swann, Lead Plaintiff in Supreme Court Busing Case, Dies at 95. "The Rev. Darius L. Swann, whose efforts to send his young son to a racially integrated school in Charlotte spurred a Supreme Court decision that unanimously endorsed busing, igniting a national debate over tactics to unravel segregation in public schools, died March 8 in Centreville, Va. He was 95. The cause was pneumonia, said his wife, Vera Swann." [The Washington Post]

North Carolina Wins Blackbeard Shipwreck Copyright Dispute. North Carolina can keep on infringing Frederick Allen's copyrighted undersea videos of the Queen Anne's Revenge shipwreck, the U.S. Supreme Court ruled Monday. The high court ruled unanimously that, just as it decided with patent cases 21 years ago, states are immune from copyright suits under the Eleventh Amendment. [NLJ]

Obamacare, CFPB Show DOJ's 'Duty to Defend' Isn't Ironclad. "'The duty to defend the constitutionality of statutes is baked into the ethos of the' DOJ and the Office of the Solicitor General, said former George W. Bush Solicitor General Gregory Garre, now at Latham & Watkins. The SG's office is the federal government's top lawyer at the U.S. Supreme Court. But there are exceptions to that general rule, Garre said—some more formal than others." [Bloomberg Law]

Why the Supreme Court Should Protect the CFPB's Independence. "In the end, though the argument offered a muddle of different approaches, the Court is likely to issue a ruling that is fairly limited as a practical matter. A bare majority of the Court may hold that the president can remove a single director of an agency at will and cannot be limited by the "for cause" removal provision imposed by Congress. But there were other indications that the Court's decision would embrace the big picture by allowing the CFPB to continue to operate and to protect consumers, as Congress intended," Richard Cordray, former CFPB director, writes. [The Atlantic]

Traditional Insanity Defense Isn't Constitutionally Required, SCOTUS Rules. "The U.S. Supreme Court ruled on Monday that the due process clause doesn't require states to offer a traditional insanity defense based on a defendant's inability to distinguish right from wrong." [ABA Journal] WSJ has more here.