Good morning and welcome to Supreme Court Brief. It's almost May—and less than a week until the justices' historic first-ever telephonic arguments. The court on Tuesday issued guidance on how those arguments will proceed. Appellate lawyers offered quick reactions to the procedures. A concerted effort to get the justices to reexamine their qualified immunity doctrine gets another push. Headlines: The SG's office makes new hires, and the court recently denied U.S. Solicitor General Noel Francisco argument time—the first time in a decade.

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

 

 

A Louder Drumbeat to Reconsider Qualified Immunity Doctrine

Calls for the justices to reconsider, narrow or abolish the judge-made qualified immunity doctrine continue to build. Kelsi Brown Corkran, partner in Orrick, Herrington & Sutcliffe, has filed the most recent petition, Taylor v. Riojas. Her client is a prisoner who claims prison officials deliberately left him naked over six days in two cells, one of which was covered from floor to ceiling in feces and the other contained a clogged floor drain overflowing with sewage in which he had to sleep.

Corkran's petition is one of at least four pending before the justices. The qualified immunity issue in general also has galvanized the Institute for Justice to launch its "Project on Immunity and Accountability" to hold government officials accountable for violations of individual rights. To that end, the Institute is counsel in three pending qualified immunity cases, one of which will be heard by the justices next term.

Corkran (at left) said in an interview that the pending petitions make a "convincing case" for action by the justices to narrow or abolish the doctrine.

"There has been a sea change recently in our understanding of the doctrine and its justifications that is newly calling it into question," she said. She noted a growing body of legal scholarship and recent empirical work casting doubt on its common law roots and its failure to serve its purpose.

"In the prison context, for instance, we are getting new visibility into the horrific conditions suffered by incarcerated individuals and the very real costs of immunizing officials responsible for those conditions," Corkran said. "These concerns have been echoed across the federal judiciary, including by several current and past members of the court."

Corkran's client, Trent Taylor, sued, charging that officials' conduct violated the Eighth Amendment. The U.S. Court of Appeals for the Fifth Circuit found that the risk of harm to Taylor was "especially obvious" but held that officials were entitled to qualified immunity because although "the law was clear that prisoners couldn't be housed in cells teeming with human waste for months on end," it had not previously held that confinement in human waste for six days violated the Constitution and so it was not "clearly established" that the officials' acts violated the Constitution.

The Taylor petition and the Institute's petition in West v. Winfield take aim at a split among the federal circuits over how much factual similarity is required to find that a constitutional violation is "clearly established." In West, the Institute's Robert McNamara asks the justices how qualified immunity applies when officials exceed the scope of consent to search. His opponent is Wiley Rein partner Richard Simpson.

In her petition, Corkran argues the justices should abolish or substantially curtail the qualified immunity doctrine.

In Zadeh v. Robinson, McDermott Will & Emery partner Paul Hughes urges the court to "recalibrate or reverse" the doctrine. His opponent is Texas solicitor general Kyle Hawkins. And the ACLU's Scott Michelman in Baxter v. Bracey asks the court to narrow or abolish a doctrine that "has been shown not to serve its intended policy goals." Melissa Roberge of the Dept. of Law Nashville and Davidson County, Tennessee, argues against review.

The controversy over the doctrine has triggered a fair number of amicus briefs in all of the petitions, primarily by groups and individuals asking the justices to narrow or abolish it. They include briefs by Jenner & Block partner Jessica Ring Amunson, counsel to DKT Liberty Project; Mayer Brown partner Andrew Pincus, representing legal scholars; Hogan Lovells partner Catherine Stetson, counsel to cross-ideological groups, and Cato's Jay Schweikert, representing the Cato Institute. —Marcia Coyle

 

 

Will Phone Arguments Cool a 'Hot' Bench?

The justices on Tuesday released guidance on how their first-ever telephonic arguments will proceed over the next two weeks amid the virus pandemic. The main unknown is whether the guidance's orderly process for asking questions by the justices will hold given how eager some of them are to follow up a colleague's question or an answer by counsel.

The court said it "generally" will not question lead counsel for petitioners and respondents during the first two minutes of their arguments, and where argument is divided, there will be no questions for one minute. The two-minute rule generally has been successful but a few justices have broken the rule, usually catching themselves and apologizing.

At the end of the two- and one-minute periods, the chief justice will have the first opportunity to ask questions. The other justices will go next in order of seniority. That would mean Justice Clarence Thomas, as senior associate justice, would be next in line after Chief Justice John Roberts Jr., but he rarely asks questions when he is sitting on the bench. Justice Ruth Bader Ginsburg would be next and she often is the first to ask questions during arguments.

After all of the justices have had an opportunity to ask questions, there may be another round if there is time remaining. The petitioner in each case will have three minutes for rebuttal, apparently regardless of whether he or she has reserved any time.

Monday's arguments in U.S. PTO v. Booking.com will feature Erica Ross for the Justice Department, and Williams & Connolly's Lisa Blatt for the company.

Two D.C. Circuit en banc arguments this week gave advocates a glimpse of some of the challenges lawyers face arguing cases in front of more than three judges.

During en banc arguments Monday at the U.S. Court of Appeals for the D.C. Circuit, Hogan Lovells partner Sean Marotta tweeted: "An hour-forty-five into this #CADC en banc oral argument and we are still on petitioner's opening argument."

Marty Lederman of Georgetown University Law Center tweeted an "obvious" lesson for the justices based on D.C. Circuit arguments Tuesday: "Justices should choose their questions *very* carefully and be as precise as possible, b/c they're going to get *many* fewer opportunities per hour than w/live arguments." Lederman said that he thought the D.C. arguments went well "except that it'll take approximately four times longer than a usual argument."

The Supreme Court's guidance left some appellate lawyers wondering how the court will handle follow-up questions and whether there will be time constraints on the justices who ask questions.

"If you just divide 30 by 8 (assuming CT passes) that gives you almost 4 minutes per justice. That's.. Quick," tweeted appellate lawyer Raffi Melkonian of Houston's Wright, Close & Barger. Melkoinian later tweeted that questions in order of seniority "kills off the thing where a friendly justice wades in to save you from the Kagan/Alito buzzsaw." —Marcia Coyle

 

 

Supreme Court Headlines: What We're Reading

• In Virus Era, Law Prof Teams With Husband as 'In-House' Counsel on SCOTUS Brief. At home together in California, amid the coronavirus outbreak, San Diego law professor Mila Sohoni (above) and her husband, Christopher Egleson, a Sidley Austin partner, worked together on a U.S. Supreme Court amicus brief defending universal injunctions. [NLJ]

• US Solicitor General's Office Snags Paul Weiss, Cooper & Kirk Lawyers. The U.S. Solicitor General's Office has increased the ranks of its assistants with the hiring of Masha Hansford, formerly counsel at Paul, Weiss, Rifkind, Wharton & Garrison, and Nicole Frazer Reaves, an associate at the Washington litigation boutique Cooper & Kirk. [NLJ]

• Everyone Is Mad at Elena Kagan. "The justice crosses ideological lines in divided decisions more frequently than any of her liberal colleagues do. She's also a pragmatist with a fierce commitment to precedent who will follow her principles even when they lead to an outcome she dislikes. Kagan is no closet conservative. She is playing the long game." [Slate]

• Justices Ask if They're Barred From Ruling on Trump Tax Cases in New Hurdle for US House. The U.S. Supreme Court asked the parties to brief the justices on the "political question" doctrine, suggesting the justices could find they can't rule on the cases, our colleague Jacqueline Thomsen in Washington reports. [NLJ] The Washington Post has more here.

• Pay Attention. The Supreme Court Is Talking About Abortion. "It's hard not to see Kavanaugh's opinion as a trial balloon for overturning Roe. That interpretation would explain why Justice Elena Kagan, a pragmatist and coalition-builder, joined Alito's dissent—alongside Chief Justice John Roberts. It's not that Kagan thinks Alito would rely on precedent to uphold Roe. She knows he wouldn't. Rather, it's that Roberts, the justice who cares most about precedent right now, might be the swing vote who could save Roe—not because he thinks it's correct, but because it's been settled law for nearly half a century." [Bloomberg]

• The Supreme Court Takes a Small Step in the Direction of Judicial Independence. "On Monday, the United States Supreme Court did something it had not done for nearly a decade: it denied a motion by the solicitor general to participate in oral argument in a case to which the federal government is not a party. It shouldn't wait ten years to do so again." [Slate]

• Supreme Court Tears Down Paywall for Georgia's Annotated Codes. The state of Georgia cannot copyright the annotations in its official annotated code, the Supreme Court held Monday in a 5-4 opinion, our colleague Scott Graham reports. [NLJ] NYT has more here.

• How the Supreme Court Has Enabled Trump on Immigration. "The drama could flare anew as the justices are likely to soon announce a ruling on the Trump administration plan to end a program that shields from deportation undocumented immigrants who came to the US as children." [CNN] Bloomberg has more here.