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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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The Supreme Court is expected to hand down opinions this morning, before it hears arguments in the class action case Home Depot USA v. Jackson, and the Medicare-related Azar v. Allina Health Services. But all of that may be overshadowed by the start of the nomination hearing for William Barr as U.S. attorney general. We took a look at Barr’s argument before the high court during the last time he was attorney general, in 1992. Plus, a disgruntled dissent from from Justices Samuel Alito Jr., Clarence Thomas and Neil Gorsuch gave a nod to a little-noticed Scalia dissent from 2009. Thanks for reading, and contact us at tmauro@alm.com and mcoyle@alm.com.
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Supreme Court Barr
U.S. attorneys general are usually offered the chance to argue before the U.S. Supreme Court at least once (usually a case that is a sure winner) during their tenure.
If William Barr (above) is confirmed after hearings that begin today, he can boast that he has “been there, done that.” But he also might want to do it again.
Barr has actually argued three times before the high court, but only once during his first go-round as attorney general from 1991 to 1993. Twice he argued in telecom cases when he was general counsel of the company now known as Verizon: AT&T v. Iowa Utility Board in 1998, and Verizon v. FCC in 2001.
As attorney general, Barr in 1992 argued in support of law enforcement in Brecht v. Abrahamson, a tricky habeas corpus case that involved conflicting precedents involving harmless error standards and the like. He and Wisconsin won, 5-4.
It so happened that I (Tony here) covered the argument for Legal Times. Here are some takeaways from my report in December 1992:
>> “He showed mastery of both facts and precedent … and when Justice David Souter interrupted Barr to ask him the sort of question that would have completely derailed Barr if he were just faking it, Barr shifted gears and calmly and competently answered the question.”
>> “Barr participated in two moot courts--one of which was videotaped, and the second of which brought department lawyers into the office on the Saturday after Thanksgiving. One insider who was at both moot courts says diplomatically, ‘He got better as it went along.’”
>> “Attorneys general don't have much call to wear morning coats on other occasions, so there was a scramble to pull together appropriate formal dress. Paul Larkin Jr., assistant to the solicitor general [now a senior fellow at the Heritage Foundation,] reportedly offered up his morning coat, and it was eagerly accepted.”
>> “Barr's 10 minutes were up. A tradition was honored, and Barr's resume, as he heads back into the private sector, is a little shinier.”
Sometime soon, Barr may have another chance to borrow a morning coat, approach the lectern and polish his resume again.
More reading from our colleague Ellis Kim at the NLJ:
• Kirkland's Bill Barr Reports $1.2M Firm Income on Disclosure for AG
• Barr Vows Mueller 'Will Be Allowed to Complete His Work'
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A Nod to Scalia's 2009 'GVR' Dissent
The ghost of Justice Antonin Scalia's wicked pen made a brief and subtle appearance Monday in the case of a Kentucky death row inmate. The justices GVR'd (granted, vacated and remanded) Larry White's petition and instructed the state Supreme Court to review his appeal again in light of the justices' 2017 ruling in Moore v. Texas.
Justice Samuel Alito Jr., Clarence Thomas and Neil Gorsuch dissented. Alito, writing for the dissenters, said Moore was decided almost five months before the Kentucky court ruled. He said he would have denied the petition for the reasons stated in his dissent in Kaushal v. Indiana, a GVR in light of a 2017 decision that came down a month before the Indiana court ruled. And Alito said he would have denied the petition for the reasons stated by Scalia's 2009 dissent in Webster v. Cooper—a GVR in light of a high court decision issued more than two months before the lower court ruled.
Scalia said he agreed the court had the power to GVR where an "intervening factor" has arisen. It gives the lower court the first opportunity to consider a new Supreme Court decision, he explained. But Scalia clearly didn't like what the court was doing with GVRs in cases where he thought the lower court had had time to consider the new decision or the petitioner had never raised the decision.
Scalia wrote:"This practice has created a new mode of disposition, a sort of ersatz summary reversal. Once we disregard the logic (and the attendant limits) of 'intervening-factor' GVRs, they metastasize into today’s monster. We should at least give it a new and honest name—not GVR, but perhaps SRMEOPR: Summary Remand for a More Extensive Opinion than Petitioner Requested. If the acronym is ugly, so is the monster."
Scalia, to be sure, was no fan of acronyms—he urged lawyers to avoid them and instead use phrases like “the commission” instead of relying on the “alphabet soup” of acronyms.
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Supreme Court Headlines: What We're Reading
>> "Each week, Washington has waited, poised to scrutinize the court's action on the cases, and the justices have responded with near silence." What's taking the court so long to act on hot-button cases? [CNN]
>> The justices, sans Brett Kavanaugh, turned down a challenge to the power of the single-director at the Consumer Financial Protection Bureau. Kavanaugh, who had taken part in earlier proceedings as a D.C. Circuit judge, was recused. Similar challenges are pending in other appeals courts. [NLJ]
>> Paul Bland, executive director of Public Justice, today will make his second oral argument at SCOTUS. He speaks with our colleague Amanda Bronstad about what's at stake in Home Depot USA v. Jackson. [NLJ]
>> The Supreme Court on Monday rebuffed a challenge to Matt Whitaker's designation as acting U.S. attorney general. [Bloomberg]
>> Florida's governor has posthumously pardoned four African American men who were falsely accused of raping a white teenager. Then-NAACP lawyer Thurgood Marshall advocated for the men. [BBC]
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