Welcome to Supreme Court Brief. The justices wrap up the first week of telephonic arguments today with challenges involving the Affordable Care Act and its contraceptive insurance requirement, and the Telephone Consumer Protection Act's ban on cellphone robocalls. Justice Ruth Bader Ginsburg will participate in the arguments from the hospital, the court said. Ginsburg was treated this week for a benign gallbladder condition. "The justice is resting comfortably," the court said in a statement. Ginsburg expects to remain in the hospital for a day or two.

Thanks for reading, and your feedback is welcome and appreciated. Want to share thoughts about the telephonic arguments? Contact Marcia Coyle at [email protected] on Twitter at @MarciaCoyle.

Docket Watch: Severability in Focus

Questions about severability—whether courts have the authority to eliminate an unconstitutional or unenforceable provision in a statute—figure in at least three closely watched cases on the justices' docket.

Scheduled for arguments next term, the Affordable Care Act challenge California v. Texas raises the question of whether the health care law's minimum coverage requirement can be severed from the rest of the statute. Seila Law v. Consumer Financial Protection Bureau, argued March 3, asks whether the bureau can be severed from the Dodd-Frank Act if the justices rule that it violates the separation of powers.

Severability comes into play this morning in arguments in the case Barr v. American Association of Political Consultants, a First Amendment speech dispute. The question before the justices is whether an exception to the robocall ban in the Telephone Consumer Protection Act violates the First Amendment and, if it does, whether the exception can be severed from the statute.

The exception in the TCPA permits calls "made solely to collect a debt owed to or guaranteed by the United States." The U.S. Court of Appeals for the Fourth Circuit ruled that what is known as the "government-debt exception" is an impermissible content-based restriction on speech and it severed the exception from the act.

This morning, Deputy Solicitor General Malcolm Stewart will argue that the exception is not a content-based regulation of speech, but instead a regulation of "a certain kind of economic activity," the collection of government debts. But even if it were a content-based regulation, the act contains a severability provision which requires the exception's removal, leaving the rest of the act intact, according to the government's brief.

Latham & Watkins partner Roman Martinez (above), counsel to the American Association of Political Consultants, counters that the law itself is unconstitutional, a "sweeping restriction" on cellphone calls. The robocall ban, including the government-debt collection exception, allows a certain type of speech (government debt collections) but forbids speech of any other kind. The act, he contends, cannot pass First Amendment "strict scrutiny."

"When a content-based restriction on speech violates the First Amendment, the proper remedy is to invalidate that restriction—not a speech-promoting exception," Martinez wrote in his brief, referring to the government-debt collection exception.

The case has attracted a number of amicus briefs, ranging from local government groups, states, and the Electronic Privacy Information Center, among others supporting the government, to Facebook, the U.S. Chamber of Commerce, healthcare companies and others backing the association. —Marcia Coyle

Covid-19 Cases Arrive at SCOTUS

The justices now have a briefed application from Pennsylvania challenging state closure order amid the coronavirus pandemic.

Our colleague Max Mitchell in Philadelphia reports that Pennsylvania Gov. Tom Wolf on Monday asked the U.S. Supreme Court to reject a petition from a group of Pennsylvania business owners who are challenging his order from March that closed nearly all nonessential businesses in the state.

Wolf submitted a 43-page brief to the justices defending his authority to impose the sweeping orders that has shuttered nearly all businesses in the Keystone State in an effort to help slow the spread of the highly contagious coronavirus. The business owners, led by a political candidate from Allegheny County named Danny DeVito, are asking the justices to block Wolf from enforcing the order.

"Much of what they argue amounts to public policy disagreements as to how the governor used his authority. The Pennsylvania Supreme Court applied well-established principles to conclude that the governor had that authority," Chief Deputy Attorney General J. Bart DeLone said in Pennsylvania's filing at the high court. "Applicants do not challenge the principles themselves; they merely disagree with that court's conclusions. More fundamentally, such public policy prescriptions, as ill-founded as they are, are not legal grounds for challenging the governor's order. The application should be denied."

The application was filed by Harrisburg lawyer Marc Scaringi. Respondents have grossly exceeded their police powers, which only permit isolation and quarantine of persons, not businesses or entities," Scaringi told the court in a supplemental filing late Monday.

>> Separately, Winston & Strawn is representing two elderly inmates at a geriatric Texas state prison unit who contend their rights under the Eighth Amendment and the Americans with Disabilities Act are being violated by prison officials' willful conduct in failing to protect the unit's vulnerable inmates from exposure and death by the virus.

"Every day that the state refuses to implement the measures set forth in the injunction exposes Plaintiffs to serious and irreparable harm from COVID-19. This court's intervention is urgently needed," the Winston & Strawn lawyers wrote. Brandon Duke, of counsel in the firm's Houston office, is counsel of record. Winston & Strawn was on the application with the Edwards Law Firm of Austin, Texas.

Officials in Texas have until Friday to respond. They will ask the court to uphold the Fifth Circuit, which said the state is likely to prevail on the merits. "After accounting for the protective measures TDCJ has taken, the plaintiffs have not shown a 'substantial risk of serious harm' that amounts to 'cruel and unusual punishment,'" the Fifth Circuit said. —Mike Scarcella

Supreme Court Headlines: What We're Reading

Judge Says He Faced No Political Pressure From McConnell To Retire. "My decision was driven entirely by personal concerns and involved no discussions with the White House or the Senate," retiring D.C. Circuit Judge Thomas Griffith (above) said. More from NPR's report: "Griffith said his wife was diagnosed 11 years ago with a 'debilitating chronic illness' and that her health was 'the sole reason for my retirement.' He said he made the decision to retire in June 2019, and privately informed his family and law clerks at the time." [NPR] Griffith's would-be successor—Justin Walker, the former Anthony Kennedy clerk and Brett Kavanaugh clerk (D.C. Circuit) heads to the Senate today for his confirmation hearing. Our colleague Jacqueline Thomsen has more here on what to expect. The ABA is now concluding that Walker, deemed to lack sufficient experience for the trial court, is "well qualified" for the D.C. Circuit.

Barr Urges Trump Administration to Back Off Call to Fully Strike Down Obamacare. "Attorney General William Barr made a last-minute push Monday to persuade the administration to modify its position in the Obamacare dispute that will be heard at the Supreme Court this fall, arguing that the administration should pull back from its insistence that the entire law be struck down. With a Wednesday deadline to make any alterations to its argument looming, Barr made his case." [CNN]

Trump Allies on the Sidelines in Supreme Court Financial Records Fight. "Congressional Republicans who strenuously objected when a Democratic-led U.S. House of Representatives panel subpoenaed President Donald Trump's financial records last year have remained unusually quiet now that the fight has reached the Supreme Court." [Reuters]

'Briefly, Counsel': How Chief Justice Roberts Keeps Phone Arguments Moving. Cutting off lawyers mid-sentence and periodic utterances of "briefly, counsel," Chief Justice John Roberts Jr. is keeping arguments moving at a clip in the virus era. [NLJ]

Did the Constitution Stutter? 'Ramos v. Louisiana' and the Win for Liberty. Hannah Cox, national manager of Conservatives Concerned About the Death Penalty, and Brett L. Tolman, former U.S. attorney for Utah, discuss the history preceding the U.S. Supreme Court's recent decision concluding that the Sixth Amendment secures the right to a unanimous jury in state and federal courts. [NLJ]