Good morning and welcome to Supreme Court Brief. The political and legal showdown over disclosure of President Donald Trump's financial records will mark the court's fifth day of historic telephonic arguments. Justice Clarence Thomas has been participating fully in the telephonic arguments, and an updated study looks at the justice's earlier silence and his new-found voice. Plus: Consovoy McCarthy's hired another ex-SCOTUS clerk: Tyler Green, a Gibson Dunn alum who's leaving his post as the Utah solicitor.

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.

Justices Take Up Trump's Bid to Conceal Financial Records

The justices this morning will hear arguments in the biggest political-legal fight of the term: President Donald Trump's resistance to subpoenas for his financial records from three U.S. House investigating committees and a state grand jury. The subpoenas were not directed to Trump himself, but to third parties—his accounting firm Mazars, and two banks, Deutsche Bank and Capital One.

Trump's lawyers make basically two arguments. In Trump v. Mazars, Patrick Strawbridge, partner at Consovoy McCarthy will argue that the House investigating committees lacked the required "legitimate legislative purpose" for the subpoenas and, instead, are pursuing an impermissible law enforcement purpose. In Trump v. Vance, the president's private attorney, Jay Alan Sekulow, argues that a sitting president is absolutely immune from criminal process.

Tuesday's telephonic arguments ran considerably longer than one hour. The overtime may have been simply the function of having more lawyers arguing and two rounds of questions. In the case McGirt v. Oklahoma, four lawyers were on the phone, and in the combined cases Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, three lawyers argued. Expect similar overtime this morning in the Trump cases.

Besides Strawbridge, Principal Deputy Solicitor General Jeffrey Wall will argue as amicus supporting Trump. Douglas Letter, general counsel of the U.S. House, will speak on behalf of the investigating committees. In the grand jury subpoena case, Sekulow will draw amicus support on the phone from U.S. Solicitor General Noel Francisco. Carey Dunne, general counsel to the Manhattan District Attorney's Office, will defend the grand jury subpoena.

Only a handful of amicus briefs have been filed in support of Trump in both cases. The solicitor general argues for "heightened" standards for issuance of congressional subpoenas, contending that "the boilerplate statement that the subpoena furthers 'multiple laws and legislative proposals' is far too vague to enable, much less withstand, meaningful scrutiny of its legitimacy."

Other amici include Eagle Forum Educational & Defense Fund, which argues the subpoenas are "part of a broader campaign of harassment by the President's political opponents with the goal of sidetracking his effectiveness and degrading the ability to advance his agenda;" W. Burlette Carter, emerita professor of George Washington University Law school, the Christian Family Coalition of Florida and Victor Williams, chair of Law Professors for Trump.

Fifteen amicus briefs are supporting the House committees and some of the same have been filed in support of the grand jury subpoena. They include briefs on behalf of Public Citizen, former senior U.S. Justice Department officials, congressional scholars and separation-of-powers scholars.

The Congressional scholars brief by Gregory Lipper of Clinton & Peed focuses on Judge Neomi Rao's dissent in the Mazars case in the U.S. Court of Appeals for the D.C. Circuit. Her "categorical rule that 'allegations of illegal conduct against the president cannot be investigated by Congress except through impeachment,'" the brief states, "would encourage premature impeachment inquiries" and would mean "that Congress has the least power to investigate legislation when needed to address the most serious harms." —Marcia Coyle

As Thomas Questions, Advocates and Justices Are Listening

Justice Clarence Thomas's participation in oral arguments last week and on Monday has been remarkable, and one of the most important consequences of the court's teleconferencing experiment.

After decades when his argument questions were minimal or non-existent, Thomas has asked a slew of questions in the four days of teleconferencing thus far. Equally notable is the fact that advocates and justices alike have been making numerous references to Thomas's questions during the arguments.

In the 92-minute argument in McGirt v. Oklahoma on Monday, Thomas asked five questions, and advocates and justices mentioned his questions seven times.

Court scholars RonNell Andersen Jones of the University of Utah S.J. Quinney College of Law and Aaron Nielson of Brigham Young University J. Reuben Clark Law School, studied Thomas's questions in 2016, finding at that time that he had asked only 39 questions since joining the court in 1991.

In light of the latest arguments, the scholars updated their analysis in an article for The Hill titled, "Pandemic proves Justice Thomas does have something to say."

"Justice Thomas finds the theatrics of contemporary oral argument inappropriate," the authors wrote. But in the current "more orderly, decorous format," Thomas has opened up.

Then and now, Andersen Jones said in an interview Monday, Thomas asks questions "in a way that appears calculated to be helpful—to the parties, to his fellow justices, and to the decision at hand." She added, "It is an exponentially more interactive court as a whole, as Thomas adds himself to the mix and as the others find his questions useful and worthy of engagement."

A Wall Street Journal report Sunday stated: "Before the telephonic arguments, Justice Thomas spoke in 32 of approximately 2,400 cases the court has heard since he succeeded Justice Thurgood Marshall in 1991, according to research by University of Minnesota political scientist Timothy Johnson. Justice Thomas's questions took up 26 minutes over those 29 years, Mr. Johnson found. By comparison, he spoke for approximately 7½ minutes over four cases in the past week alone."

Will Thomas's chattiness continue? "Whether this foray into telephonic questioning might embolden the Supreme Court's most silent justice to continue to participate when the justices someday return to the courtroom remains to be seen," Andersen Jones said.

Also uncertain is whether Thomas's newly found voice will affect how he decides cases. But if his dissents have a somewhat reclusive, go-it-alone feel, then his collegial experiences at the latest arguments may change his tenor, if not his votes. —Tony Mauro

Supreme Court Headlines: What We're Reading

George Conway: No One in This Country Is Above the law. The Supreme Court Is About to Teach That Lesson. "To say Trump's argument is frivolous demeans frivolity. Clinton v. Jones dictates the result: The subpoenaed documents have nothing to do with Trump's presidential duties—zip. That alone does it," George Conway writes. [The Washington Post]

Barbara Babcock, a Force for Women in the Law, Dies at 81. "Professor Barbara Babcock (pictured above) lobbied successfully for many other women and members of minorities, and by the end of his term President Carter had appointed more such judges than all previous presidents combined." Justice Ruth Bader Ginsburg remarked in 2018: "I would not hold the good job I have today were it not for Barbara." [NYT]

Consovoy McCarthy, Hiring Utah's Solicitor, Is Now Home to 5 Ex-SCOTUS Clerks. With the addition of former Clarence Thomas clerk Tyler Green, leaving his post as Utah solicitor general, the firm is now home to five former U.S. Supreme Court clerks, including three other Thomas alums: Consovoy, partner Patrick Strawbridge and associate Cameron Norris. Jeffrey Harris, also a partner, clerked for Chief Justice John Roberts Jr. [NLJ]

A Century-Old Supreme Court Decision Might Not Kill Patent Suits Against 80 Amazon Customers. The question before the Federal Circuit is about the Kessler doctrine, a 1907 Supreme Court decision that barred a patent holder who lost a case against a supplier from then asserting the same patent against the supplier's customers, our colleague Scott Graham reports. [NLJ]

What's at Stake in Supreme Court Fight Over Trump Financial Records. "If the court were to embrace Trump's broadest arguments, it would severely weaken the ability of Congress to conduct oversight of a president." [Reuters]

Will The Supreme Court Finally Force Trump's Tax Returns To Be Released? "If Congress isn't allowed to use the courts to resolve these disputes, we'd see even more brinksmanship on both sides," said Steve Vladeck, a constitutional law professor at the University of Texas at Austin School of Law. "It would remove any incentive for cooperation or accommodation. [FiveThirtyEight]

A listener's guide to the historic Supreme Court arguments over whether Trump can keep his tax records secret. "So far, every court that has heard these cases has sided against the president. But that does not mean the Supreme Court will do so." [CNBC]

Supreme Court Weighs Whether Religious Schools Can Fire Lay Workers. "At issue in the latest cases is whether religious institutions can invoke a 'ministerial exception' even when their employees don't have religious training or titles." [NPR]