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National Law Journal
Supreme Court Brief
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Tony Mauro
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Marcia Coyle
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Welcome to the new Supreme Court Brief. You’ll notice this email looks different and that it’s coming to you in the morning instead of the afternoon. Our goal with this new format is to keep you in-the-know on all things #SCOTUS every morning the court is in session. We’ll share what we're watching, dissect recent news developments, analyze the court’s most important cases and explore the quirks, personalities and traditions of the Supreme Court and its practitioners.
We’re your hosts Tony Mauro and Marcia Coyle. Combining our careers, we’ve spent 67 years covering, studying and obsessing over the U.S. Supreme Court. We’d like this to be a two-way conversation, so reach out to us at tmauro@alm.com or mcoyle@alm.com. We welcome your views on what the court is doing and not doing, tips about interesting petitions, briefs, books and articles, and predictions about forthcoming opinions, vacancies, nominations—anything on the court’s horizon.
We picked a newsy week to launch; the court is hearing arguments in the sports betting case Christie v. National Collegiate Athletic Association today, and the marquee religious freedom/ sexual orientation discrimination case Masterpiece Cakeshop v. Colorado Civil Rights Commission tomorrow, plus other interesting cases and developments we’ll highlight. Here we go …
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Clash of the Titans
The stakes are high in the Christie case, and we mean that literally.
The American Gaming Association estimates that Americans bet $150 billion on sports annually, and only 3 percent of those bets are legal. If the Supreme Court strikes down the federal law that prohibits sports betting in most places, the industry will only grow, with sports betting spreading fast among revenue-thirsty states.
With so much at stake, it’s no surprise that the parties have signed up top-tier advocates from among the ranks of former U.S. solicitors general—a meeting of two friends who have a total of more than 150 Supreme Court oral arguments under their belts.
Representing New Jersey Governor Chris Christie in his effort to end the federal ban on most sports betting is Gibson, Dunn & Crutcher partner Theodore Olson, arguing his 63rd case before the high court.
On the other side, representing five sports leagues that oppose widespread sports gambling – the National Collegiate Athletic Association, the National Basketball Association, the National Football League, the National Hockey League, and the Office of the Commissioner of Baseball—is Paul Clement of Kirkland & Ellis, arguing his 90th Supreme Court case—yes, 90.
It will be the first time Clement and Olson have squared off against each other at the high court. “We have argued against each other in the lower courts, but this will be the first in SCOTUS,” said Clement, adding that “We argued on the same side in McConnell v. FEC,” the 2003 campaign finance case.
That was only natural, because Clement was Olson’s deputy when he served as SG from 2001 to 2004. When Olson left the office, Justice Antonin Scalia said later, Clement was the court’s “sentimental favorite” to replace him. Clement, who had clerked for Scalia, was SG from 2005 to 2008.
“Paul is superb—a great mind and a very, very skilled advocate, a formidable adversary. A pleasure to watch and listen to him,” Olson told us.
Olson’s argument style is blunt and direct. Clement’s is both quick and scholarly. He never fails to impress by rattling off citations and pages from briefs without any notes in front of him – though we have noticed recently that Tom Goldstein of Goldstein & Russell is arguing without notes too.
Not to be forgotten is the third lawyer who will argue in the Christie case: Jeffrey Wall, the able deputy solicitor general and former Sullivan & Cromwell partner who pretty much ran the office from March to September while Noel Francisco awaited confirmation as SG.
Along with Clement, Wall will defend the Professional and Amateur Sports Protection Act, the statute that is under fire, arguing that the does not “commandeer” states to do anything in violation of the Tenth Amendment, but merely prohibits states from adopting laws that conflict with federal policy. Whether or not the court buys that distinction will be a key to the outcome.
The dynamics of the case make for interesting bedfellows, as Bloomberg’s Greg Stohr notes: “All it took to bring Donald Trump and the National Football League together was New Jersey Governor Chris Christie and his Supreme Court bid to legalize sports gambling. The NFL, a target of the president’s Twitter ire over national anthem protests, is banding together with the administration to fight the outgoing governor.”
One bad omen for those who want the law upheld is that, apart from the government brief, only one other amicus brief was filed on that side of the case, on behalf of Stop Predatory Gambling and religious and other groups “united in their opposition to the exploitation of American communities through commercial gambling.” Interestingly, the counsel of record on the brief is Deepak Gupta of Gupta Wessler, who usually sues the Trump administration rather than defending its positions.
Betting on sports betting: Sports Handle, a sports betting web site, not surprisingly, is laying out the odds for how today’s arguments will go, including: will Justice Clarence Thomas speak? (Odds are against it.) And will Justice Samuel Alito Jr. mention his beloved Philadelphia Phillies? (Also unlikely.)
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ALSO TODAY: The court will pivot from sports betting to sovereign immunity and terrorism as it hears arguments in Rubin v. Islamic Republic of Iran. Only eight justices will participate: Justice Elena Kagan is recused, likely because of earlier involvement in the case as solicitor general.
Arguing on behalf of victims of a 1997 suicide bombing attack in Jerusalem is Asher Perlin, a Hollywood, Florida lawyer who has been with the case since it went before the U.S. Court of Appeals for the Seventh Circuit. “I live in Jerusalem but I practice primarily in Florida,” Perlin told us. “I arrived back in the U.S. last Sunday.” He is attempting to collect a default judgment against Iran by seeking to seize Persian artifacts housed by the University of Chicago and Chicago’s Field Museum of Natural History. It will be his first argument before the Supreme Court.
University of Chicago professor David Strauss, a veteran advocate who also directs the law school’s appellate and Supreme Court clinic, will argue against the seizure. MoloLamken’s Jeffrey Lamken represents Iran in the case, but won’t be arguing. We’re hearing that Strauss won a coin toss for the chance to argue. But it also makes sense because the university has a strong interest in the artifacts, which it has held for 80 years. The United States, which sided with Iran and the university as amicus curiae, sought and got argument time. Assistant to the Solicitor General Zachary Tripp will make the argument.
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Coyle's Cases to Watch
Got two minutes? Click on the image below to watch Marcia break down this week's arguments in Masterpiece Cakeshop and the New Jersey sports gambling cases.
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➤ Traveling Travel Ban: The Trump Administration is back in the high court requesting stays pending the appeals of two district courts' preliminary injunctions against enforcement of travel ban 3.0—the government's latest iteration of a ban on foreign nationals coming into the United States from eight nations. Solicitor General Noel Francisco wants the ban to go into effect while his appeals in Trump v. Hawaii and Trump v. IRAP play out in the Ninth and Fourth circuits, respectively. The justices had planned to hear arguments on travel ban 2.0 in October but the Hawaii and Maryland cases became moot when deadlines in that ban expired. Hogan Lovells' Neal Katyal and the ACLU's Omar Jadwat are still the lead challengers.
➤ Banana Republic: Who knew that bananas played such a key role in prepping for SCOTUS arguments? At a recent Harvard Law School discussion, assistant to the solicitor general Elizabeth Prelogar described how she gets ready for argument day: “I eat salmon which is a super food, it's good for your brain. In the morning of, I eat bananas -- a lot of bananas like two, three, sometimes four.” Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan concurred: “Fish the night before and bananas in the morning. Doesn't everybody?”
➤ #alwaysascotusangle: Former coal company executive Don Blankenship announced he is running for the U.S. Senate in West Virginia in an effort to unseat Sen. Joe Manchin, D-West Virginia. Convicted on charges of ignoring mine safety regulations, Blankenship is on probation In Nevada, but that’s not his only hurdle. Blankenship was the key figure in the 2009 Supreme Court case Caperton v. Massey Coal, which ruled that a state judge should have recused in a case because of Blankenship’s sizable campaign contributions. “Although there is no allegation of a quid pro quo agreement, the fact remains that Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome,” the court wrote.
➤ Movie Buff: Justice Alito makes a return engagement to the New York Historical Society on Dec. 8 to participate in its Justice in Film series which looks at how film has tackled social strife and the struggle between right and wrong. Last year, Alito helped to lead the discussion of the classic film, "Inherit the Wind," a fictionalized account of the 1925 Scopes Monkey Trial. This year, Alito is back for "A Man For All Seasons," the Academy-Award winning story of Sir Thomas More, the 16th century Lord Chancellor of England who refused to annul King Henry VIII's marriage. The justice sticks around the next morning to participate in a "sold out" public conversation on the freedom of conscience with Yale Law's Akhil Amar and Columbia Law's Philip Bobbitt.
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➤ Crystal Ball Gazing: In this month's National Law Journal magazine, we run through the top five stories we'll be tracking in 2018. Will there be another vacancy? Will the court put an end to partisan gerrymandering?
What did we miss? Send your predictions to tmauro@alm.com and mcoyle@alm.com. We'll share the most interesting submissions in a future briefing.
That's all for today. We'll see you tomorrow with a preview of Masterpiece Cakeshop and more SCOTUS news …
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