9 June 2016
How best to describe the month of June at the U.S. Supreme Court, when the justices—and their clerks—race toward the finish line?
“Chaotic and thrilling," Mayer Brown's Brian Netter, who clerked for Justice Stephen Breyer in the October 2010 term, said. At least for the law clerks.
June is far different from the fall and winter, Netter said, when "there is time to pore over and debate every word of every draft opinion.” The arrival of June brings “an avalanche of opinions, so all of the drafting, revising, and negotiating takes place at a breakneck pace,” he said.
Drafts of majority opinions in remaining cases to be decided were due last week, and draft dissents will be flowing among chambers this week and next.
By the end of Thursday, the justices had 19 cases pending, not far off the average pace of decisions for this time of the year, even for a court that is short one justice. Justice Anthony Kennedy has been the unofficial keeper of the decision pace. Where the court has fallen off the average pace is in the granting of new cases for next term; only 16 are on the docket thus far.
But there could be more cases added to the new term in the next three weeks.
A Supreme Court term and its workload have a rhythm, said Brianne Gorod of the Constitutional Accountability Center, a former Breyer clerk in the October 2008 term.
The work builds steadily in the first half of the year, she said, as clerks dig into cert petitions. Then there are more cert petitions and oral argument preparation. And then cert petitions, oral argument preparation and opinions—all at once.
Gorod described the end of oral arguments as “definitely a significant marker—the end of one of the biggest parts of the clerk's job.” She added: "It's also a reminder that you won't be able to work at the court forever."
Goodwin Procter's William Jay, a former assistant to the solicitor general and clerk to Justice Antonin Scalia in the October 2004 term, recalled, "Sometimes the most frenzied period isn’t drafting the majority opinion, or even drafting the dissent, but the last-minute exchange of edits and footnotes as majority and dissent try to respond to one another.”
In June, Jay said, “there is much less time for polishing that month than there might be at other times."
It's not just the justices and clerks who are working overtime in June, Netter said. "The court has an exceptionally talented staff of research librarians, paralegals and clerks who maintain the court’s institutional knowledge and who ensure that the term ends on time."
For high court clerks, it's not all work and no play in the final month. The court holds an annual cookout in early June.
But "the real relief comes when the opinions in the cases on which you're working come out, and by the time all of the opinions are out, there's a definite change in the atmosphere at the court," Gorod said.
Conversations shift from cases to upcoming vacation plans and next jobs, she said. There also are more visits to the court by family members and significant others. "And there's the excitement of meeting the new clerks who are starting and introducing them to the court and its work," Gorod said.
There are also end-of-term events to stage, Netter said. Before the justices leave town, the law clerks “stage a musical revue that gently roasts their bosses for the term’s most memorable events," he said.
Who scripts the festivities? That task falls to the law clerks whose opinions have already been handed down.
Although the inside of the court hums with end-of-term work, lawyers who argued some of the most complicated cases sit, wait and diligently check news feeds as the days dwindle.
Here’s a look at some of the cases pending this term:
Fisher v. University of Texas (challenge to use of race in admissions): Wiley Rein's Bert Rein, representing Abigail Fisher, the former student, went against Latham & Watkins' Gregory Garre, for the university. Solicitor General Donald Verrilli Jr. argued as an amicus in support of the school.
McDonnell v. United States ("official action" under fraud laws): Jones Day's Noel Francisco argued against Deputy Solicitor General Michael Dreeben.
Whole Woman's Health v. Hellerstedt (challenge to Texas abortion clinic regulations); Stephanie Toti of the Center for Reproductive Rights argued for the clinic, with Verrilli arguing as an amicus. Texas Solicitor General Scott Keller advocated for the state.
United States v. Texas (Obama administration's delayed-deportation program): Verrilli and Keller faced off against each other.
Puerto Rico v. Franklin California Tax-Free Trust (Bankruptcy Code pre-emption of Puerto Rico restructuring statute): Kirkland & Ellis' Christopher Landau, for Puerto Rico, argued against Matthew McGill of Gibson, Dunn & Crutcher.
Kirtsaeng v. John Wiley & Sons (standard for awarding attorney fees under Copyright Act): E. Joshua Rosenkranz of Orrick, Herrington & Sutcliffe, for Supap Kirtsaeng, went against Jenner & Block's Paul Smith. Assistant to the Solicitor General Elaine Goldenberg supported John Wiley & Sons as an amicus.
Dollar General v. Miss. Band of Choctaw Indians (tribal court jurisdiction over tort claims against nonmembers): Goldstein & Russell's Thomas Goldstein represented Dollar General. Hogan Lovells' Neal Katyal argued for the tribe. Deputy Solicitor General Edwin Kneedler, as an amicus, supported the tribe.
Universal Health Services v. U.S. ex rel. Escobar ("implied certification" theory of legal falsity under False Claims Act): Roy Englert of Robbins, Russell, Englert, Orseck, Untereiner & Sauber went against David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel. Deputy Solicitor General Malcolm Stewart was an amicus supporting respondents.
Halo Electronics v. Pulse Electronics (test for awarding enhanced damages for patent infringement): Sullivan & Cromwell's Jeffrey Wall argued for Halo, with Roman Martinez, an assistant to the solicitor general, supporting petitioners. Sidley Austin's Carter Phillips argued for Pulse.
Reprinted with permission from the June 9, 2016 edition of The National Law Journal © 2016 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.