Good morning and welcome to Supreme Court Brief. The justices start their second and final week of telephonic arguments today. On tap this morning, the court returns to the so-called ministerial exception to compliance with job bias laws. We take a quick look at the case and the lawyers who will be on the phone. The chief justice stops an ethics complaint stemming from the retirement of a D.C. Circuit judge. Plus: Another state solicitor general, with two SCOTUS arguments, gets tapped for a court seat. Scroll down for headlines, including new reports about Justice Clarence Thomas's moment.

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.

 

   

Revisiting the Ministerial Exception from Job Bias Laws

As anticipation continues to build for the court's decisions in the Title VII job bias cases involving gay, lesbian and transgender workers, the justices this morning hear arguments in a different job discrimination case also with potentially wide impact.

In 2012, a unanimous court recognized a "ministerial exception" to compliance with job discrimination laws in the case Hosanna-Tabor Evangelical Lutheran Church v. EEOC. Chief Justice John Roberts Jr. writing for the court, said the exception "ensures that the authority to select and control who will minister to the faithful—a matter 'strictly ecclesiastical,'—is the church's alone."

Roberts, rejecting a "rigid formula," listed several factors to guide courts in deciding whether an employee was a "minister." He wrote "It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers [the teacher here], given all the circumstances of her employment."

In two cases joined for arguments, Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, the schools, represented by Eric Rassbach of the Becket Fund for Religious Liberty, argue that an employee who performs religious functions is sufficient alone to qualify as a minister. They want the court to reverse decisions by the U.S. Court of Appeals for the Ninth Circuit.

O'Melveny & Myers special counsel Jeffrey Fisher (above), representing the former employees who sued, counters that Hosanna-Tabor adopted a multi-factor approach to deciding who is a minister.

Rassbach is making his first Supreme Court argument. Supporting him during the arguments is Assistant to the Solicitor General Morgan Ratner. Three dozen amicus briefs from a variety of religious and conservative organizations are supporting the schools.

Fisher, co-director of Stanford Law School's Supreme Court Clinic, is making his second argument this term. He argued and won Ramos v. Louisiana in which the justices ruled that the Sixth Amendment requires unanimous verdicts in criminal trials. —Marcia Coyle

 

   

Roberts Shuts Down DC Circuit Judicial Investigation Request

Chief Justice John Roberts Jr. on Friday effectively terminated an ethics inquiry that raised questions over the retirement of D.C. Circuit Judge Thomas Griffith. In a letter from Roberts counselor Jeffrey Minear (above) to the D.C. Circuit, the chief justice said he would not transfer the inquiry to another circuit for review and resolution. The New York Times has more here.

The progressive advocacy group Demand Justice filed the Griffith complaint in March. It noted New York Times reporting that said Senate Majority Leader Mitch McConnell in recent months had been contacting judges about their retirement plans. The complaint asked D.C. Circuit Chief Judge Sri Srinivasan to initiate an investigation over whether there was any improper political influence in Griffith's decision to retire.

D.C. Circuit Chief Judge Sri Srinivasan had asked Roberts to transfer the complaint to a different court. Circuit judges do not typically weigh ethics questions that involve their colleagues.

Minear's letter to Srinivasan stated in its conclusion: "Because the order does not meet the prerequisites for identification of a complaint under Rule 5, the chief justice has determined that a transfer of the matter is not appropriate at this juncture of the proceeding."

Griffith has denied there was any political pressure behind his decision to retire. "My decision was driven entirely by personal concerns and involved no discussions with the White House or the Senate," he told NPR in a statement.

"The highly respected chief judge of the nation's second-highest court thought this matter should be referred for further investigation, and now Roberts is ignoring that recommendation and blocking any further look into McConnell's campaign to pressure federal judges to retire," Demand Justice executive director Brian Fallon said in a statement.

Griffith's would-be successor, 37-year-old Kentucky federal trial court judge Justin Walker, a former clerk to Brett Kavanaugh on the D.C. Circuit and Anthony Kennedy on the Supreme Court, faced Senators last week at his confirmation hearing. —Mike Scarcella

 

   

Kansas Solicitor Picked for Trial Court

Toby Crouse, the Kansas solicitor general who made his U.S. Supreme Court debut last year in two cases, has been nominated to a seat on the United States District Court for the District of Kansas.

Crouse was an appellate partner at the Kansas firm Foulston Siefkin LLP before joining the Kansas state attorney general's office in 2018. The University of Kansas School of Law graduate clerked for Judge Mary Beck Briscoe on the United States Court of Appeals for the Tenth Circuit.

Crouse argued for Kansas last year in October on the court's opening day. The argument in Kahler v. Kansas marked the first time advocates were given a two-minute window in which to make a statement without interruption from the justices. Crouse argued that November in the Fourth Amendment case Kansas v. Glover. Kansas prevailed in both cases.

Crouse is among the lawyers with state solicitor experience that the Trump White House has picked for a federal court seat.

Among the others: In March, Kristi Johnson, serving as the Mississippi solicitor general, was nominated to the U.S. District Court for the Southern District of Mississippi.

Former Anthony Kennedy clerk Eric Murphy was the Ohio state solicitor when he was confirmed last year to the Sixth Circuit. Kevin Newsom, a former Alabama solicitor, is serving on the Eleventh Circuit. J. Campbell Barker, former deputy solicitor general of Texas, was confirmed last year to serve on the Eastern District of Texas. Former Florida solicitor Allen Winsor, who'd argued two cases at the Supreme Court, is now serving on the Northern District of Florida bench. —Mike Scarcella

 

   

Trump, DOJ and House Urge Justices to Resolve Subpoena Fights

Lawyers for President Donald Trump, the Department of Justice and the House of Representatives were in rare agreement Friday, telling the U.S. Supreme Court it should not throw out the president's lawsuits challenging congressional subpoenas for his tax documents, our colleague Jacqueline Thomsen writes.

The justices had requested the parties and DOJ say whether the political question doctrine—which blocks courts from weighing in on political matters best handled by the other branches—applied to the fights over the House subpoenas to financial institutions housing the records.

In three supplemental briefs filed with the court Friday, the DOJ, Trump and House lawyers all told the justices the cases are justiciable and urged them to issue a ruling on the merits.

More reading at the NLJ.

 

 

Supreme Court Headlines: What We're Reading

Justice Clarence Thomas Has Found His Moment. "Justice Clarence Thomas has become a luminary in today's Washington, in a way that might never have been imagined in the arc of his life and time on the bench. Thomas has drawn notice for asking more questions during the Supreme Court's new pandemic-prompted system during oral arguments than he has asked for more than a decade in the courtroom, as the justices broadcast hearings for the first time in their history." [CNN] The Wall Street Journal has more here: Justice Clarence Thomas Finds His Voice. "Elbert Lin, a former Thomas clerk, said the justice had remarked in chambers that other justices often ask the questions that were on his mind, so he had no need to pile on. The new format, Mr. Lin said, meant that Justice Thomas had to take matters in his own hands."

Supreme Court Justices Are Behaving Nicely on the Phone. It May Impact Who Wins. "Traditionally, oral arguments give lawyers a chance to field questions, but they also provide an early opportunity for the justices to assert their own positions and try to persuade colleagues. This is where they often show their hand. Rather than the usual robust questioning, the nine are asking limited questions with no exchanges among them." [CNN]

Flush With Embarrassment: Brief History of Awkward Moments at SCOTUS. Oral arguments, back when they were held in the courtroom, are full of moments of awkwardness. [NLJ] More reading—Slate's investigation of the flush, and why Chief Justice John Roberts might not be laughing.

Trump Administration Asks Supreme Court to Stop Release of Mueller Material. "The Trump administration on Thursday asked the Supreme Court to temporarily block a ruling that requires the Justice Department to give Congress certain secret grand jury material from Robert S. Mueller III's special counsel investigation of Russian interference in the 2016 election." [The Washington Post]

Justices Unanimously Overturn Bridgegate Convictions, Ruling Against Feds. "[N]ot every corrupt act by state or local officials is a federal crime," the justices wrote. [NLJ] More here at The New York Times.

Oklahoma's Suspect Argument in Front of the Supreme Court. "The state claims that affirming a reservation in eastern Oklahoma could lead to thousands of state criminal convictions being thrown out. But that argument doesn't seem to be based on facts." [The Atlantic]

Special Report: For Cops Who Kill, Special Supreme Court Protection. "In an unprecedented analysis of appellate court records, Reuters found that since 2005, the courts have shown an increasing tendency to grant immunity in excessive force cases—rulings that the district courts below them must follow. The trend has accelerated in recent years." [Reuters]

Ginsburg Rebukes 9th Circuit Panel for 'Radical Transformation' of Appeal. In an opinion Thursday, Justice Ruth Bader Ginsburg, speaking for a unanimous U.S. Supreme Court, had unusually harsh criticism of a federal appellate panel for a practice that some court experts say the justices often embrace themselves. [NLJ]