Welcome to Supreme Court Brief and the final day of historic telephonic arguments. This morning a newcomer is set to make his Supreme Court debut in one of two "faithless elector" cases. He shared some thoughts on his virtual preparations. A new book is out spotlighting nine women "shortlisted" for Supreme Court vacancies. Plus: the transgender female employee at the center of a Title VII case at the court has died.

Thanks for reading, and your feedback is welcome and appreciated. Contact Marcia Coyle at [email protected] and follow her on Twitter @MarciaCoyle.

 

 

In 'Faithless Electors' Defense, a Supreme Court Debut

Jason Harrow first argued before Chief Justice John Roberts Jr. when Harrow was at Harvard Law School, Class of 2011. "My team was in the finals," he told the Supreme Court Brief. "He came up to judge. I loved that. It was a real highlight of my career."

This morning Harrow gets the real deal as he makes his first Supreme Court argument in one of two "faithless elector" cases: Colorado Dept. of State v. Baca. The justices will examine the constitutionality of Colorado and Washington laws that impose fines on or removal of presidential electors who fail to cast their Electoral College vote for the presidential candidate who captures the state's majority vote.

The justices initially had joined the Colorado case with Chiafalo v. Washington. But the court split the cases after Justice Sonia Sotomayor indicated she would recuse from the Colorado case because she knew Polly Baca, one of the electors in the Colorado case. Harvard Law's Lawrence Lessig will argue the Washington case.

Harrow is chief counsel of Equal Citizens, which describes its mission as "to fix democracy by establishing truly equal citizenship. Lessig is a member of the board.

Harrow was a Supreme Court fan even before he started law school. He helped manage SCOTUSblog from 2006 to 2008. "I sat in on Supreme Court arguments and talked about them with Tom (Goldstein of Goldstein & Russell)." Returning to argue before the court but in a telephonic format is "bittersweet," Harrow said.

After law school and two clerkships, he was an associate at Davis Wright & Tremaine and then an assistant to the solicitor general of New York. Working in the latter office, he said, "you get lots of appellate arguments. I argued in the Second Circuit, the high court of New York and the appellate division." He also argued the Colorado case in the Tenth Circuit.

His preparation for the Colorado argument was similar to how he has prepared for any appellate argument, but with two added factors: "It's the Supreme Court with better prepared judges, better prepared clerks. You read your briefs that you argued in the appellate court and then multiply that by two. We've been mooting frequently. We were going to do three or five in different locations, but now we've increased that and can bring in people from all over the country. We turn off the video on Zoom and have audio only."

Harrow will be alone in his Los Angeles office for the argument, which follows Lessig. "I have a phone system, a standing desk to recreate a podium," he said. He'll use a landline.

His and Lessig's "faithless elector" clients are excited, he said, because they can listen to the arguments. "When you start counting all the tickets we would have needed [for the courtroom] and the disruption of flying in the middle of the week, they are glad to be staying at home and family and friends can listen in, too." —Marcia Coyle

 

 

'Shortlisted' Spotlights 9 Women Passed Over for Supreme Court

Before Sandra Day O'Connor was nominated and confirmed to a seat on the U.S. Supreme Court in 1981, a handful of presidents, going back to Franklin Roosevelt, considered nine women for high court vacancies.

The new book "Shortlisted: Women in the Shadows of the Supreme Court"—from Renee Knake of the University of Houston Law Center and Hannah Brenner Johnson, vice dean of California Western School Law in San Diego—"tells the overlooked stories" of those women. The book arose out of the authors' study of media coverage of the nominations of Sonia Sotomayor and Elena Kagan.

The National Law Journal spoke with Knake about how that study spurred a book about the nine women and a short-listing phenomenon that exists in the legal and corporate worlds.

"Florence Allen, the first woman to start appearing on presidential shortlists, is absolutely a standout. President Roosevelt missed an enormous opportunity," Jefferson said. —Marcia Coyle

>> Read the full interview here.

 

 

Transgender Employee in Title VII Case Dies

Aimee Stephens, who intervened in the high court Title VII case R.G. and G.R. Funeral Homes v. EEOC, died Tuesday at her home in Detroit. She was 59, according to the ACLU's Chase Strangio, a member of her legal team.

The Title VII case asks the justices to decide whether the statute's ban on discrimination "because of sex" includes discrimination against transgender persons based on transgender status or sex stereotyping under Price Waterhouse v. Hopkins. The case, argued Oct. 8, is pending a ruling.

Stephens and her ACLU counsel intervened in the Sixth Circuit when it became clear that the Trump Administration's Justice Department would no longer support the position taken by the EEOC that transgender persons were protected by Title VII. Stephens lost her job as a funeral director after she informed the funeral home owner that she intended to transition to female.

"When Aimee decided to fight back after she was fired for being transgender, she just wanted it to be acknowledged that what happened to her was wrong," Strangio said in a statement. Stephens is survived by her wife, Donna. —Marcia Coyle

 

 

Supreme Court Headlines: What We're Reading

A Judge's Guide to the Supreme Court Livestream. "As I listen to Supreme Court arguments, I try to concentrate on the questions the justices are asking to figure out their thought process. Where is he or she going with this? Is the justice pushing back on the lawyer, or on a colleague? Is he or she throwing a curveball, or a softball? Is the skepticism expressed by a particular justice real, or is he or she trying to get a reaction from the lawyer that will be an ah-ha moment for others?" Third Circuit Judge Marjorie Rendell (above) writes. [The Philadelphia Inquirer]

U.S. Supreme Court Wary of Presidential 'Harassment' in Trump Finances Fight. "The court's conservative majority signaled concern about improper 'harassment' of Trump—who is seeking re-election on Nov. 3—by three Democratic-led House of Representatives committees seeking his records. In the New York case, the conservative justices joined the court's liberals in indicating skepticism toward broad arguments by Trump's lawyer for complete immunity from criminal investigation for a sitting president." [Reuters] More at CNN and NYT. And here at the NLJ: 'We All Know It's About the President': Trump Finds Defenders at Supreme Court in Tax Returns Case

Congress and Trump Could Both Be Losers at the Supreme Court This Week. "Congress's power to issue subpoenas to private parties is well established and has been repeatedly sustained by the Supreme Court in cases dating back almost a century. But the justices have never squarely decided whether that power extends to subpoenas directed to, or for the records of, senior executive branch officials, including the president." [The Washington Post]

Unlike the Supreme Court, State Courts Have Responded Quickly to the Pandemic. Here's Why. "Why are state courts so innovative while the U.S. Supreme Court is so stodgy? The Constitution guarantees Supreme Court justices a job for life. But most state judges need either voters' or state officials' approval if they're to stay in office." [Washington Post]

Supreme Court Is Taking Away Tools Prosecutors Use to Fight Corruption. "Unfortunately, where the justices found common cause seems to be in a distrust of prosecutorial discretion and an acceptance of dishonesty in politics as the status quo. Those views, coupled with an extremely narrow reading of the statute, have led a unanimous court to continue its yearslong trend of diminishing the power of federal prosecutors to fight corruption, which is highly regrettable to those who care about honest government." [CNN]

As 2020 Presidential Contest Looms, U.S. Supreme Court Mulls Power of 'Electors.' "[Bret] Chiafalo is now at the heart of one of two closely watched cases being argued before the Supreme Court on Wednesday that will determine whether electors have the constitutional right to exercise independence and defy the will of the voters—a question touching upon the integrity of American democracy." [Reuters] More here at USA Today.