Welcome to Supreme Court Brief. With the postponement of the April argument session, we await the justices' guidance on how the rest of the term could play out. The court says it is considering a range of alternatives if arguments cannot be held before the term ends. In the meantime, we look at how 12 law firms with 40 lawyers on a case with 21 clients chose a veteran advocate as lead counsel on a petition. Plus: Oral argument scholar Tonya Jacobi shares her thoughts about the justices and video-conferencing.

Thanks for reading, and your feedback is welcome and appreciated. Contact us at [email protected] and [email protected] and follow us on Twitter at @MarciaCoyle and @Tonymauro. Stay safe, and be well.

Choosing a Lead Lawyer for 21 Companies & 12 Law Firms with 40 Lawyers

How do 21 companies represented by more than three dozen lawyers at 12 law firms with a number of skilled Supreme Court practitioners decide which lawyer will carry their banner in a petition to the U.S. Supreme Court?

In the case BP v. Baltimore, the justices last week witnessed what happens when an entire industry is sued, loses in the lower courts and turns to the high court for relief. The 21 domestic and foreign energy companies in the BP case were sued in 2018 in Maryland state court for damages allegedly due to global climate change.

After the U.S. Court of Appeals for the Fourth Circuit rejected their attempt to remove the case to federal court, the companies and their lawyers brought an admittedly wonky removal issue to the justices, one that has nothing to do with climate change.

Their question: Does 28 U.S.C. 1447(d), which expressly authorizes appellate review of "an order remanding a case removed pursuant to" the federal-officer or civil-rights removal statutes, permit a court of appeals to review any issue encompassed in a remand order where the removing defendant premised removal in part on the federal-officer or civil-rights removal statutes?

Kannon Shanmugam, partner at Paul, Weiss, Rifkind, Wharton & Garrison, is counsel of record in the high court petition. He and his firm represent ExxonMobil Corporation, one of the two largest companies in the case. The other company, Chevron U.S.A., is represented by Gibson, Dunn & Crutcher partner Theodore Boutrous. Boutrous was counsel of record earlier in seeking a stay of the remand order from the justices, which they denied on Oct. 22.

"These cases have so many moving parts that different lawyers have taken the lead on so many issues," said one lawyer in the case who would speak only on background. "Kannon and Ted had taken the lead on this issue and they lost it in the Fourth Circuit. I think they felt duty-bound to carry it forward."

Exxon and Chevron also have taken the lead in general in defending the industry against the climate change lawsuits that a number of state and local governments have filed since 2017. The suits broadly allege that the extraction, production, sale, and promotion of fossil fuels constitute a public nuisance and give rise to product liability under state common law.

Shanmugam and Boutrous have divided responsibilities in the lower courts at times. The companies and their lawyers discussed who would take the lead on the petition and "amicably" resolved the question in favor of Shanmugam, said another lawyer in the case.

Other firms in the case include Munger, Tolles & Olson; Kellogg, Hansen, Todd, Figel & Frederick; Cromwell & Moring; Eimer Stahl; Arnold & Porter Kaye Scholer; Baker Botts; Saul Ewing Arnstein & Lehr; Bartlit Beck; Hunton Andrews Kurth, and Latham & Watkins.

The BP case is not the first time the justices have seen petitions with a "cast of thousands" and they are likely to see more, said one lawyer. "So much civil litigation now is being brought against entire industries—every defendant will have its own counsel." —Marcia Coyle

'Zooming' on Oral Argument Alternatives

The nine-justice Texas Supreme Court announced this week that it will hear three oral arguments this month using the Zoom video conferencing which the court will livestream on YouTube for the public to see. The California Supreme Court is using a different video platform, BlueJeans, for its arguments. Law firms and other courts are using video conferencing to minimize the pandemic's disruption.

If nine state supreme court justices can make Zoom arguments work, couldn't nine U.S. Supreme Court justices?

Tonya Jacobi of Northwestern University School of Law thinks so. "They are all smart and capable people and they can adapt."

Jacobi has focused her research on oral arguments in the Supreme Court and is co-creator with Matthew Sag of Loyola University of Chicago School of Law of ScotusOA.com, a website "focused on data-driven analysis of oral argument before the U.S. Supreme Court."

The postponements of the March and April argument sessions have halted their current research examining the effect of the two-minute rule in which advocates were given two minutes of uninterrupted speaking time at the start of their arguments. "I'm interested in how often the advocates cede the floor during their two minutes, to see that as a tactic—if that's associated with success or confidence," Jacobi said. "It might be nothing, or just a style thing. We will come back to it."

With the delay of the April arguments, the justices said they would consider "a range of scheduling options and other alternatives if arguments cannot be held in the courtroom before the end of the term." The statement did not address the range of options the court might consider.

Jacobi said she has been teaching with Zoom and her seminar has 21 students who all fit on the screen. The program also keeps track of who is speaking, a policing method that could be helpful to the chief justice.

The justices, who are working remotely, have been holding their private conferences by teleconference with no video element.

One argument alternative for the justices is to decide pending cases only on the briefs. Jacobi hopes that won't happen.

"I think all of them should be heard," she said. "Oral argument is one transparent part of the court process. Everything else is carefully calibrated. It's the one thing where you actually see justices thinking through questions, not having just the final product," Jacobi said. "I think that is really important for people interested in the law to see that process. Also for general public, they know there is accountability; people are being heard. I think symbolically that's very important." —Marcia Coyle

Supreme Court Headlines: What We're Reading

U.S. Appeals Court Allows Abortion Curbs in Texas During Coronavirus. "A U.S. appeals court on Tuesday ruled that Texas can enforce limits on the ability of women to obtain abortions as part of the state's policy requiring postponement of non-urgent medical procedures during the coronavirus pandemic." [Reuters] WSJ has more here. Read the decision here. Judge James Dennis wrote in dissent: "The district court's result was supported by nearly 50 years of Supreme Court precedent protecting a woman's right to choose, and as such I would not conclude that it was patently erroneous."

Supreme Court Splits Along Ideological Lines in Wisconsin Ballot Case. "The Supreme Court on Monday night split along ideological and partisan lines to stop a plan for extended absentee voting in Tuesday's Wisconsin primary, turning aside pleas from Democrats that thousands of the state's voters will be disenfranchised because of disruptions caused by the coronavirus pandemic. The ruling was 5 to 4, with the court's conservatives in the majority." [The Washington Post] The New York Times has more here: Wisconsin Election Fight Heralds a National Battle Over Virus-Era Voting. And more here at CNN: John Roberts' Unwavering, Limited View of Voting Access Seen in Supreme Court's Wisconsin Ruling.

For a Supreme Court Justice on Lockdown, Debates Now Focus on Video Night. "Not all Supreme Court functions have ceased; deliberations among the nine justices continue by telephone, and law clerks are working with their bosses via phone and email to write opinions for previously argued cases. But telework is antithetical to the intimate culture of the Supreme Court. Justice Breyer says he's tried to keep to a routine during the exile." [WSJ]

Paper Filings, Relics Elsewhere, Survive at SCOTUS During Virus. "Pandemic or no pandemic, the Supreme Court demands timely delivery of hard copy briefs and other filings, which in turn is keeping a niche of the stalled U.S. economy in business for the moment." [Bloomberg Law]

Biden Says He'll Put a Black Woman on Supreme Court. This California Justice Is a Leading Candidate. "Former Vice President Joe Biden has promised that if elected in November, he will appoint the first black woman to the Supreme Court—a step he called 'long overdue.' One of the leading candidates is 43-year-old California Supreme Court Justice Leondra R. Kruger. A former Justice Department lawyer who argued a dozen cases before the high court in Washington before returning to California, she is a favorite of former Obama administration lawyers and Democratic Senate advisors." [Los Angeles Times]

U.S. Supreme Court Turns Away Religious Clash Over Washington Transit Ads. "The U.S. Supreme Court on Monday declined to hear a religious rights dispute brought by the Roman Catholic Archdiocese of Washington against the Washington area transit authority over its policy barring advertisements in its stations and on buses and trains on divisive issues including religion." [Reuters] Bloomberg Law has more here.