Welcome to Supreme Court Brief. My name is Jimmy Hoover. I've covered the Supreme Court for the National Law Journal and ALM since April 2023.

On Wednesday, the Supreme Court wrapped its November oral argument session by hearing Nvidia's appeal to defeat an investor class action centering on a stock-drop following a dip in the crypto market. The case is being closely watched by plaintiffs' lawyers and defense counsel in the world of securities litigation, but if the tenor of Wednesday's argument is any judge, it may prove a dud after all.

With several justices saying Nvidia's appeal smacks of "error-correction" rather than law-settling, Justice Elena Kagan added that it was "becom[ing] less and less clear why we took this case."

A prime candidate for a DIG (dismissal as improvidently granted)?

"This case certainly seems like a candidate for that given [the justices'] remarks," Jennifer Windom of Kramer Levin Naftalis & Frankel told me.

Thanks for reading. If you'd like to get in touch with tips, feedback or general greetings, you can reach me at [email protected]. Follow me on X: @JimmyHooverDC.

Ted Olson Dies at Age 84

Over the course of a legal career that spanned nearly six decades, Theodore "Ted" Olson became one of the most prominent Supreme Court lawyers of his generation.

"Ted Olson was an extraordinary public servant, a frequent and gifted Supreme Court advocate (he prevailed over me in the one case we argued against each other), and a good friend," Chief Justice John Roberts Jr. said in a statement Wednesday. "I will miss him."

Justice Elena Kagan, who, like Olson, occupied the position of U.S. solicitor general, said in a statement that Olson gave her valuable advice about "how to do the job." Kagan's first oral argument as SG was against Olson in the Citizens United campaign finance case, in which the latter ultimately prevailed.

"He was an A-plus-plus lawyer, and an A-plus-plus man," Kagan said. "The whole OSG community, and of course the Supreme Court will greatly miss him."

Indeed, Olson also prevailed in Bush v. Gore, which effectively ended the Florida recount and settled the 2000 presidential election in George W. Bush's favor. Bush's legal team had turned to the longtime Gibson Dunn & Crutcher attorney to brief and argue the high-stakes cases at the Supreme Court, which unfolded at lightning speed in December of that year.

The Dec. 11 hearing was a technical one, dealing at times with how "dimpled" and "hanging chads" should be treated on ballots. Olson, in his gravelly voice, tried to drive home that the Florida Supreme Court had authorized "extensive standardless and unequal manual ballot recounts in selected Florida counties" that the justices needed to declare unlawful.

The following year, after the court's bitterly divided 5-4 decision in the case propelled him to the White House, Bush appointed Olson to be U.S. solicitor general, where he played a major part in the administration's legal position on national security over the ensuing years. Tragedy struck him early on in that role, when on his 61st birthday on Sept. 11 2001, his wife Barbara K. Olson, a conservative legal analyst, was killed with the other passengers aboard American Airlines Flight 77, which was hijacked by terrorists and crashed into the Pentagon. Before her death, Barbara called her husband in a panic from the plane.

Olson was just weeks from the start of the upcoming October 2001 Supreme Court term when the attacks occurred. The grief-stricken attorney carried out his legal work and would personally argue before the Supreme Court less than a month later, returning several more times over the ensuing months to represent the Bush administration before the nation's top legal tribunal.

In 2006, Olson, then soon to be remarried, told the Legal Times' Tony Mauro that it was important to "move on" from the tragedy. "It’s important to understand that while I suffered a great loss, everyone else experiences great loss at some time too," he said. "It’s important for each of us to accept what happened and move on and do everything possible to go on with leading a productive life.”

A former Reagan administration lawyer, Olson's Republican bona fides ran deep. But he was no ideologue. He made national news in the late aughts when he teamed up with his old opposing counsel in Bush v. Gore, David Boies, to challenge California's Proposition 8 against same-sex marriage, taking the case all the way to the Supreme Court.

"Ted Olson was a giant in the law, and a giant in life," Boies said in a statement to the National Law Journal. "He left the law, our country, and each of us better than he found us. Few people are a hero to those that know them well. Ted was a hero to those who knew him best."

Despite being on opposite sides of the landmark Bush v. Gore case, Boies and Olson remained close throughout the years, and even taking a trip together on Boies' boat off the coast of Nantucket. When contacted last month about Boies' recent criticism of the Bush v. Gore decision to the NLJ, Olson was concilliatory: "Well, David is an outstanding lawyer and did a great job with his work on this case. I can understand his disappointment."

During the first Trump presidency, Olson kept his distance from the administration, turning down an offer to join Trump's legal team during the investigation of Special Counsel Robert Mueller in 2018. He would go on to successfully challenge the Trump administration's rescission of the Deferred Action for Childhood Arrivals, of DACA, program, and later denounced the president-elect's efforts to remain in power after the 2020 election.

Rembrances poured in over social media for Olson on Wednesday, who was called a "titan of the legal profession" by Gibson Dunn chair Barbara Becker.

Kannon Shanmugam of Paul Weiss Rifkind Wharton & Garrison called him a "cherished mentor."

"He was a role model in the way he conducted himself after his unimaginable loss on 9/11," added Shanmugam.

Olson had a hand in shaping the careers of other prominent Supreme Court advocates as well, having hired Arnold & Porter's John Elwood as an attorney in the U.S. solicitor general's office, where Olson "made a point of attending" his first argument. In a post on X, Elwood recalled him being "unfailingly a gracious and generous boss" who "steered the office through difficult times with a firm hand and unerring judgment."