Good morning and welcome to Supreme Court Brief. Will the term's final stretch bring the usual round of retirement rumors? Don't look in the direction of Justice Clarence Thomas, two of his former clerks say. They shared some thoughts in a recent discussion about the justice's tenure on the court. The next chapter in the court's 2018 controversial union fees decision has arrived. Mark Janus, who won the 2018 decision, now asks the justices for a ruling that allows him to get his "fair share" fees back. Plus: Orrick's Supreme Court leaders jump into the Harvard admissions case at the First Circuit.

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

Thomas Right Now 'Is Just Hitting His Stride'

Nearly every end of term generates rumors and debates about possible justice retirements, but two former law clerks of Justice Clarence Thomas recently and emphatically said they don't see it happening any time soon for their former boss.

"I think he has publicly stated his desire to stay as long as he had been off the court," said Carrie Severino, president of the Judicial Crisis Network. "He was 43 when he joined the court. That gets us into 2030s or so. I think right now he is just hitting his stride. He's in a great leadership role."

Under Severino's calculations, Thomas, who assumed office in 1991 at age 43, would serve until he was at least 85 in 2034.

Erik Jaffe, partner at Schaerr | Jaffee, agreeing with Severino's assessment, added, "I don't see it happening or his decision being driven by who is in office. He has said repeatedly one of things he loves most about his job is he gets new clerks every year that keep him intellectually engaged and make him happy. I don't see him giving that up."

Severino and Jaffe, along with Raph Rossum, author of "Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration," participated last week in a discussion of Thomas' nearly 30 years on the Supreme Court. The event was arranged by the Committee for Justice which was marking the debut of the documentary, "Created Equal: Clarence Thomas in His Own Words."

In an interview last year, philanthropist David Rubenstein asked Thomas about rumors he might retire in June of that year. Thomas said, "I have no idea where this stuff comes from. One of those things you have to get used to in this business—in here—is that people can say things about you and for you that have nothing to do with you."

Severino called Thomas a "bold thinker" who is getting "much more appreciation from the next generation of lawyers." She declared: "Move over Scalia!"

Thomas's views on the Second Amendment, universal injunctions, how to address precedent and other doctrines, she said, are "coming to fruition." It is leadership, she added, "even when he doesn't have five votes on the Supreme Court. He's having a huge impact." —Marcia Coyle

The Return of 'Janus'

Next month, the justices will consider a petition by a familiar name—Mark Janus. In one of its most controversial decisions of the October 2017 term, a 5-4 majority in Janus v. AFSCME struck down as unconstitutional the "fair share fees" paid by non-union workers to unions representing them under collective bargaining agreements.

Janus is now seeking damages under Section 1983 for the fees that he paid to the union. The legal question he presents is similar to another issue raised in a raft of petitions pending review. In those petitions, various parties ask the court to revisit qualified immunity for public officials under Section 1983. Janus challenges an appellate court ruling that a private party who reasonably relies on then-valid state law is entitled to raise a good faith defense to liability under Section 1983.

William Messenger of the National Right to Work Legal Defense Foundation argued for Janus in the original case and represents him again on the petition. He argues in the petition there is no statutory basis for a good faith reliance defense. The U.S. Court of Appeals for the Seventh Circuit, he contends, misconstrued 1992 and 1982 Supreme Court decisions as suggesting such a defense existed.

Messenger noted that in the justices' Janus decision, Justice Samuel Alito Jr., the opinion's author, said unions were on notice for years of the court's misgivings about the constitutionality of the fees. Alito also wrote of the "considerable windfall" that unions received from the fees, noting it was hard to estimate "how many billions of dollars" were taken from non-union workers in violation of the First Amendment.

Bredhoff & Kaiser partner John West, counsel to AFSCME, counters in his opposing brief, "While it is correct that this court has not squarely held that such a good-faith defense exists, the court nonetheless has strongly suggested that it does" in its 1992 and 1982 decisions. He notes that six circuit courts and dozens of district courts have held the §1983 good-faith defense shields private parties from monetary liability for following the law as it existed at the time of their actions.

"Four courts of appeals, and thirty district courts, have so held in the specific context presented here, i.e., claims by union nonmembers seeking to recover agency fees withheld from their paychecks pursuant to state law and the then-controlling precedent of Abood v. Detroit Board of Education," wrote West.

Illinois Solicitor General Jane Notz also has filed a brief in opposition to the petition on behalf of the Illinois attorney general. —Marcia Coyle

As Friends, Major Companies Back Harvard

Lawyers from Orrick, Herrington & Sutcliffe are representing a group of major U.S. companies backing Harvard College in the admissions dispute now at the U.S. Court of Appeals for the First Circuit.

The Orrick team, including E. Joshua Rosenkranz (above) and Mark Davies, co-leaders of the firm's Supreme Court and appellate litigation practice, are counsel to leading companies including Apple, Cisco, Gilead, GE, Microsoft, Intel and Twitter. A top in-house lawyer at Verizon, Keefe Clemons, is counsel to the telecom.

Harvard's lawyers at Wilmer Cutler Pickering Hale and Dorr are defending a trial judge's ruling that said the school's race-conscious admissions policy is not unlawful. The challengers, led by a team from Consovoy McCarthy, argue the policy is discriminatory.

Major U.S. companies on the Orrick amicus brief argued in support of "the continuing importance to businesses of race-conscious, holistic university admissions practices."

"To find the next superb employee, amici depend on universities admitting talented students from all backgrounds, and helping each student learn how to thrive in a diverse and inclusive setting," the Orrick lawyers wrote in their brief. "And as the Supreme Court has repeatedly recognized and approved, amici agree that a university may well conclude that meeting such a crucial goal, even today, requires a race-conscious, holistic university admissions program."

The Harvard case is poised to become the next major race and admissions case at the U.S. Supreme Court. The divided court in 2016 ruled in support of the race-conscious admissions policy in the case Fisher v. University of Texas at Austin. —Mike Scarcella

Supreme Court Headlines: What We're Reading

The Justice Department's Indefensible About-Face on Emoluments. "As illustrated by the standing issue, in the Supreme Court showdown likely to come, all of the plaintiffs face technical hurdles that could prevent them from ever getting their main arguments heard. But the Justice Department faces a wholly different challenge—a problem of principle, not procedure. Defending Trump against the emolument suits is not easy, because doing so pits the Justice Department against itself," Jane Chong writes. [The Atlantic]

Two Arizona Officials Argue Against Each Other at US Supreme Court. Arizona's secretary of state is working with Jenner & Block, and the state attorney general has a Wilson Sonsini team on his side. [NLJ]

She Has Argued 40 Cases in Front of the Supreme Court. The Latest Was From Her Dining Room. "The most difficult part was deciding where to perform her oral argument: at home, or in an empty office? She decided to stay home. A headset was ordered, extension for her landline phone cord was obtained, and that search for a suitable lectern began. Ms. [Lisa] Blatt also confronted possible land mines: the dog and the doorbell. Neither could derail her actual arguments taking place May 4." [WSJ]

California Church Appeals to U.S. Supreme Court Over Lockdown. "The battle over the impact of coronavirus lockdown measures on Americans' religious observances has reached the Supreme Court as a Southern California church and its pastor made an emergency appeal for relief from executive orders issued by Gov. Gavin Newsom. Lawyers for the South Bay United Pentecostal Church and Bishop Arthur Hodges asked the justices to step in Sunday after a federal appeals court panel rejected a similar emergency application Friday." [Politico]

Which Supreme Court Justices Get Interrupted the Most? "There were striking disparities evident from the telephonic arguments. One disparity is the justices who had the longest and shortest questioning periods. The three longest questioning periods were all by male justices, and all by conservative justices—two from Justice Samuel Alito and one from Justice Neil Gorsuch," Leah Litman writes. [Slate]

Chief Justice Roberts Laments Hiatus of Handshake That Unites Justices. In his first public statements about the COVID-19 pandemic, Chief Justice John Roberts Jr. said in a video posted Saturday that the crisis is "the world's way of saying to mankind, 'you're not in charge.'" Roberts also praised "the boundless courage of the heroic healthcare workers" who have worked to save infected patients. [NLJ]