The Supreme Court released the oral argument calendars for the February and March sittings yesterday, leaving five granted cases unscheduled. Those cases are Christopher v. SmithKline Beecham Corp., Dorsey v. U.S., RadLAX Gateway Hotel v. Amalgamated Bank, Arizona v. U.S., and Match-E-Be-Nash-She-Wish Bank v. Patchak. Each of those cases will almost certainly be heard during the April sitting, which runs April 16-25.

Over the past few years, the Court has heard 8-10 cases during the April sitting, so the Court is expected to grant 3-5 cases in January with an eye towards hearing them during this Term. The presence of so many high-profile cases late in the Term–Perry v. Perez, Florida v. DHHS, and Arizona v. US–could lead the Court to hear fewer cases in April than it would otherwise.

A Big Little Case

Next Wednesday, the Supreme Court will hear arguments in an interesting case about water law in Montana, PPL Montana v. Montana. The case will be a difficult one for a variety of reasons and the Court is going to need all the help it can get with the case.

Luckily, the Court will have five-star help from the parties. The three advocates who will argue in that case–Paul Clement, Gregory Garre, and Edwin Kneedler–have a combined 200 arguments before the Supreme Court. Kneedler has 113, Clement has 54, and Garre has 33.

Star-studded oral arguments have become more and more common in recent years as the Supreme Court bar eats up an increasingly high percentage of cases. On the same day the Court hears PPL Montana it will also hear from another set of high-profile advocates in Mayo Collaborative Services v. Prometheus Lab. The advocates in that case–Stephen Shapiro, Donald Verilli, and Richard Bress–all qualify as “expert” Supreme Court litigators under Richard Lazarus’s definition of the term and combine for 50 total arguments (Shapiro (29), Verilli (14), Bress (7)).

In all, the six advocates arguing on Wednesday, December 7 will have a total of 250 arguments between them. What a remarkable day at the Court!

Justice Kagan and Miguel Estrada have had a long relationship that has confounded and surprised many of their skeptics. At Kagan’s confirmation hearing, Estrada waxed poetic about her abilities and good humor while Kagan volunteered that Estrada was “qualified to sit as a Supreme Court Justice.” They first met at Harvard Law School when they were assigned to sit next to each other during each class of their first years.

Well, friendship with a Supreme Court justice has its perks. This week, the Supreme Court appointed Miguel Estrada to defend the decision below in Hill v. United States. Since appointed amici are chosen by the Circuit Justice for the circuit from which a case arose, Justice Kagan was likely tasked with finding an amici to appoint. This was her first appointment.

(H/T to Michelle Olson at Appellate Daily)

In the past, we’ve profiled notable advocates and judges that were in the news. This is the first in a series of posts about the advocates who will be arguing in the Healthcare Cases.

On November 18, the Supreme Court invited H. Bartow Farr to brief and argue an important point of law in the Healthcare Cases: that the minimum care provision of the Affordable Care Act is severable from the rest of the statute. Although Farr may be among the least well-known advocates arguing in the Healthcare cases, he has long held a sterling reputation within the Supreme Court Bar. I’ve created a brief profile of Farr to show he achieved such an impressive reputation at the Court and within the bar.


I. The Basics


Full name: Henry Bartow Farr III
Born: November 11, 1944 (Age 67)
Undergraduate: A.B. Princeton (1966)
Law School: J.D. Arizona State University (1973), summa cum laude; Editor-in-Chief of the Arizona State Law Journal
Clerkship: Justice William H. Rehnquist (1973-1974)
Government Experience: Assistant to the Solicitor General (1976-1978)
Current Firm: Farr & Taranto (1981-present)
Supreme Court Arguments: 30

II. Appellate Experience


Farr’s resume boasts at least two of the standard characteristics of a modern Supreme Court litigator: a Supreme Court clerkship and a stint in the Office of the Solicitor General. His law school pedigree diverges from the norm–he attended Arizona State University School of Law–but he graduated summa cum laude and served as editor-in-chief of the law review during his time there.

A few years after he completed his clerkship with then-Justice Rehnquist, Farr was hired as an Assistant to the Solicitor General and served for a standard two-year stint from 1976 to 1978. He argued five cases during his time there, including four cases revolving around Indian law.

In 1981, soon after leaving the Office of the Solicitor General, Farr joined with Joe Onek and Joel Klein to start Onek, Klein & Farr. The firm specialized in complex and appellate litigation and eventually developed an impressive reputation for Supreme Court litigation. Notably, this firm predated Rex Lee’s move to Sidley Austin to begin the first major private Supreme Court practice of the modern era. In 1991, the firm split and Farr joined Paul Smith and Richard Taranto to form Klein, Farr, Smith & Taranto. The firm eventually became Farr & Taranto when Smith left for Jenner & Block and Joel Klein left for the Department of Justice. Name partner Richard Taranto was recently nominated to Court of Appeals for the Federal Circuit, leaving the firm’s future in limbo.


III. Notable Cases


Farr’s most notable argument came in 2001 when he represented the Professional Golfers Association in PGA Tour v. Martin. Farr also represented National Cable Television, one of two respondents in City of New York v. FCC.

A complete list of his oral arguments at the Supreme Court follows:

  • 1. Rosebud Sioux Tribe v. Kneip (1977) (as Assistant to the Solicitor General)
  • 2. Puyallup Tribe, Inc. v. Dep’t of Game of State of Wash. (1977) (as Assistant to the Solicitor General)
  • 3. Simpson v. U.S. (1978) (as Assistant to the Solicitor General)
  • 4. Oliphant v. Suquamish Indian Tribe (1978) (as Assistant to the Solicitor General)
  • 5. U.S. v. John (1978) (as Assistant to the Solicitor General)
  • 6. Pennhurst St. School & Hosp. v. Halderman (1984)
  • 7. Pennhurst St. School & Hosp. v. Halderman (1984) (reargued)
  • 8. Zauderer v. Office of Disciplinary Councel of the Supreme Court of Ohio (1985)
  • 9. Hooper v. Bernalillo County Assessor (1985)
  • 10. City of New York v. FCC (1988)
  • 11. Liljeberg v. Health Servs. Acquisition Corp. (1988)
  • 12. Liljeberg v. Health Servs. Acquisition Corp. (1988) (reargued)
  • 13. Brown-Ferris Indus. of Vermont v. Kelco Disposal (1989)
  • 14. Missouri v. Jenkins (1990)
  • 15. McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco of Fl. (1990)
  • 16. McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco of Fl. (1990) (reargued)
  • 17. Ford Motor Credit Co. v. Dep’t of Revenue, State of Fl. (1991)
  • 18. Masson v. New Yorker Magazine (1991)
  • 19. Cipollone v. Liggett Group, (1992)
  • 20. Cipollone v. Liggett Group, (1992) (reargued)
  • 21. Turner Broad. System v. FCC (1994)
  • 22. Allied-Bruce Terminix Co. v. Dobson (1995)
  • 23. Turner Broad. System v. FCC (1997)
  • 24. El Paso Natural Gas Co. v. Neztsosie (1999)
  • 25. PGA Tour v. Martin (2001)
  • 26. California Franchise Tax Bd. v. Hyatt (2003)
  • 27. Olympic Airways v. Husain (2004)
  • 28. Long Island Care at Home v. Coke (2007)
  • 29. New Jersey v. Delaware (2008)
  • 30. U.S. v. Eurodif S.A. (2009)


IV. Conclusion


Ultimately, the punchline is that Farr holds a stellar reputation for appellate advocacy. He is clearly an elite member of the Supreme Court bar, using either a mechanical definition or a more subjective one. His selection should come as no surprise and it will serve to push this well-respected advocate into the spotlight. To say that he deserves the appointment is an understatement.

Ordinarily, appointed amici are chosen by the Justice who oversees the circuit from which the case arrises–which would suggest that Farr was chosen by Justice Thomas–but the scope of this case means that other Justices may have weighed in. On the other hand, the assignment may have been given to Justice Thomas, who in turn decided to appoint two experienced advocates because they would simply be more likely to brief and argue the case at the highest level.

Former Solicitor General Gregory Garre is scheduled to argue twice during the December sitting, a relatively uncommon feat for private practice lawyers. He will argue in both Mims v. Arrow Financial Services on November 28 and PPL Montana, LLC v. Montana on December 7.

This will be Garre’s second time arguing twice during a given sitting; he did the same thing during the April 2010 session when he argued in both Christian Legal Society v. Martinez and Monsanto v. Geertson Seed Farms. You can see a complete list of the advocates who have argued twice during a given sitting since 2003 here.

Over at Opinio Juris, Harlan Cohen makes the compelling argument that the current “customary international law” paradigm of the Alien Tort Statute is a poor fit for the statute, particularly in light of recent cases. He’s right: trying to divine whether international custom supports aiding and abetting liability or corporate liability is, frankly, silly.

It will be interesting to see how the parties in Kiobel v. Royal Dutch Petroleum try to fit their arguments into the CIL framework that the Supreme Court adopted in Sosa v. Alvarez-Machain. Petitioners have been granted an extension and their brief will now be due on December 14, with amicus briefs due one week later. Respondents have retained veteran Supreme Court litigator and Quinn Emmanuel named-partner Kathleen Sullivan to argue their case. Their brief is due on January 27, 2012. The case will likely be argued during the February sitting.

The cert. petition could provide some insight into the Petitioner’s litigation strategy on the merits. The most compelling argument they make on the merits in their petition is that domestic law provides the framework for providing relief for crimes that are cognizable under the Alien Tort Statute, rendering complex CIL analysis irrelevant. That is certainly going to be the best way of arguing this case, and I hope it is an argument they fully pursue on the merits.

As a broad matter, however, I think the Alien Tort Statute is best read as a purely jurisdictional provision. I don’t have many adherent’s on this point, however, but Judge Bork’s concurring opinion in Tel-Oren v. PLO and Justice Scalia’s concurring opinion in Sosa v. Alvarez-Machain are about as close as any judges have come to siding with me. Court’s across the country have been clumsily trying to craft causes of action out of international law and, while I hope they are qualified to make those calls, most courts remain ill-equipped to make those decisions. The fact that so many courts have butchered their analysis of international law makes Judge Bork’s political question argument seem all the more poignant. Informed, thoughtful, consistent analysis would pose a significant threat to Congress’ ability to formulate foreign policy but analysis that lacks those fundamental characteristics poses an even greater threat to Congress’ authority.

It will be interesting to see how the Petitioners in Kiobel frame their arguments. My guess is that they will try to find ways to avoid clumsy CIL analysis and instead argue that corporate liability is a question of domestic law. We’ll know for sure in mid-December.

The Supreme Court’s decision last week to appoint H. Bartow Farr and Robert Long to argue in the ACA cases follows in a long tradition of appointing amici to support positions that might not otherwise receive representation at the merits stage. But should positions themselves receive representation?

Earlier this year the Stanford Law Review published an interesting note by Brian P. Goldman titled “Should the Supreme Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions?” In the article, Goldman argues the Supreme Court should limit the instances in which it appoints amici for a variety of compelling reasons, not least of which is that appointing amici can take control of litigation away from the parties to litigation.

The idea of appointing amici should ask us to consider the extent to which we believe in the adversarial system in the Supreme Court. Over the years, regular amici, as well as appointed amici, have taken an increasingly central role in shaping litigation. As a result, the Supreme Court could be reaching more education decisions–if you assume the increase in amici participation is introducing a wider breadth of ideas–but that may have taken some of the power away from the parties that have skin in the game. If a litigant wants to leave a favorable lower-court decision to die, should the Supreme Court really object by appointing someone to artificially support that position?

Attorneys in every court make fringe arguments at the request of their clients or because those fringe arguments are the best available. When the Supreme Court appoints amici, however, they pushing the fiction of credible arguments even further by artificially appointing someone to represent a position they literally have no reason to support. That position is not in the best interest of their client, as in the proud adversarial tradition, nor is it really benefiting any ‘client’ at all.

Traditionally, appointed amici have been a mix of both experienced appellate litigators and relatively green ones, but recent appointed amici have been much younger. Those amici are sometimes appointed in relatively unimportant cases and advocate for positions that have very little likelihood of success (although some occasionally win the day). In that tradition, both Chief Justice Roberts and Latham & Watkins partner Maureen Mahoney argued their first cases as appointed amici. The advocates arguing in the Healthcare cases are a bit of an exception to that recent trend then because, while both are former Supreme Court clerks, they are also experienced advocates with more than a dozen arguments each and experience in the Office of the Solicitor General. In fact, Robert Long served in the Office of the Solicitor General while Chief Justice Roberts was a Deputy Solicitor General and only a few years after Justice Alito served as an Assistant to the Solicitor General.

In many ways, appointed amici are truly friends of the court. They write briefs and argue free of charge, and they have no client except the Court. It would be hard to find amici better than the ones appointed in the Healthcare cases, but should they have been appointed at all?

Justice Sotomayor has completed two years on the Supreme Court and, as she begins her third, it seems like an appropriate time to take an initial look at whether or not she has turned out to be as predictably liberal as her supporters had hoped or as her opponents had feared. During her nomination, most expected her to be a moderately liberal vote, roughly in line with her predecessor, Justice Souter. After her first year, declared her to be a fairly reliable liberal vote, but there has been less analysis following her second year.

Well, not much has changed in her second year; Justice Sotomayor has proven to be roughly as liberal as expected. That isn’t surprising though, because Justices tend to act somewhat predictably during their first few years on the Court. If they do eventually diverge significantly from what their initial track record would support – à la Justices White or Souter – that drift isn’t typically apparent until a Justice has served for at least 3-5 years. Nonetheless, we can begin to analyze a Justice’s jurisprudence through a relatively small sample size with an eye towards future behavior. Here, I’ll look at three things: voting alignments, Martin-Quinn scores, and a few notable cases.

I. Voting Alignments

First, the easy part – statistics. Voting alignments show that Justice Sotomayor generally agrees with her liberal colleagues more than she does with the conservative ones. Below, I’ve listed her agreement rates with each of her colleagues in non-unanimous cases during OT09 and OT10.

Justice Sotomayor Voting Alignment – Non-Unanimous Cases – OT09 and OT10

Agreement in Full
Agreement in Part
Agreement in Judgment
Disagreement
Roberts 35 42%
38 45%
44 52%
40 48%
Stevens 25 60%
28 67%
29 70%
13 30%
Scalia 21 25%
28 33%
33 39%
51 61%
Kennedy 40 48%
41 49%
45 54%
39 46%
Thomas 21 25%
29 35%
34 50%
50 60%
Ginsburg 59 70%
61 73%
64 76%
20 24%
Breyer 56 68%
62 75%
65 78%
18 22%
Alito 23 28%
29 35%
37 45%
46 55%
Kagan 22 73%
25 83%
27 90%
3 10%

Note, of course, that Justice Sotomayor served only one term with both Justice Stevens and his successor, Justice Kagan. If you sort Justice Sotomayor’s ‘agreement in judgment’ rates, you can see a more vivid picture of the Court’s ideological split.

Agreement in Judgment with SMS
Kagan 90%
Breyer 78%
Ginsburg 76%
Stevens 69%
Kennedy 54%
Roberts 52%
Alito 45%
Thomas 40%
Scalia 39%

There isn’t much to say here except that, although Justice Sotomayor and Kagan had a remarkably high agreement rate in non-unanimous cases during OT10, they still had only the second-highest rate of the term. Chief Justice Roberts and Justice Alito agreed in judgment in 93% of all divided cases.

II. Martin-Quinn Scores

Martin-Quinn scores generally track a Justice’s ideology across a variety of areas in the law. A negative score indicates a “liberal” voting history and a positive score indicates a “conservative” voting history. Over the past two years, Justice Sotomayor has clearly fallen left of the median on the Court.

Average MQ Score (OT09 and OT10)

Average Score
Thomas 4.039
Scalia 3.054
Alito 2.467
Roberts 2.252
Kennedy 1.336
Kagan* 0.029
Sotomayor 0.019
Breyer -0.043
Ginsburg -0.092
Stevens** -0.632

*Served only during OT10
**Served only during OT09.

The most interesting aspect of MQ scores is that they purport to compare Justices across different generations. As you can see below, even the most “liberal” members of the current Court are relatively moderate by historical standards.

During OT09 and OT10, the Court (Sotomayor excluded) averaged 1.589. Sotomayor was therefore 1.570 below the mean. As you would expect, however, she is also just marginally more conservative than Justices Ginsburg, Breyer, and, her predecessor, Justice Stevens.

III. Notable Cases

Sotomayor is a reliable liberal vote, both generally and in the most high-profile cases. The statistics above provide support for her consistency in most cases, and a look specifically at the high-profile cases during OT09 and OT10 reveals the same trend. In McDonald v. Chicago, Salazar v. Buono, Citizens United v. FEC, Free Enterprise Fund v. PCAOB, Brown v. Plata, and AT&T v. Concepcion, she voted with the liberal bloc of the Court. Even in quirky cases like Bullcoming v. New Mexico, she seems to have assumed the same general position as her predecessor.

Her most notable betrayal was not much of a betrayal at all. In Sorrell v. IMS Health, Justice Sotomayor joined a five-justice conservative majority in striking down a Vermont law the regulated the distribution of prescription drug information.

IV. Conclusion

I wish there was shocking news to report, but there simply is not. After two years on the Court, Justice Sotomayor is just as liberal as expected, and she seems to have settled into her role rather comfortably. Cases like Sorrell suggest a willingness to deviate when necessary, but she clearly has not felt the need to break rankings with any measurable frequency.

Minor Cosmetic Changes

I’ve made some cosmetic changes to the site. Please let me know if you have trouble seeing anything or if the page doesn’t load properly. In a somewhat controversial move, I’ve expanded the page width to 1080 pixels.

The new changes should put the most important information front and center. I’ve also added new social media buttons that will allow you to share our posts on your social network of choice.

Several commentators have provided their thoughts on why the Supreme Court granted 5.5 hours of oral argument in the the ACA cases. Over at Just Enrichment, Joshua Matz hypothesizes that the decision was made for show, or to simply signal to the public that the Supreme Court was giving this case the utmost respect. At Dorf on Law, Michael Dorf makes the remarkable argument that some members of the Court are trying to signal to Justice Kennedy that this is an especially important case. At Volokh Conspiracy, Orin Kerr argues that extended time is a good sign for the challengers.

As a threshold matter, I think Professor Dorf’s theory is tremendously unlikely. The Court simply did not provide extended oral argument time in order to signal to one or more justices that this is a significant case. Each of the Justices is clearly well-aware of the scope of this case and, in any event, I am not sure that reinforcing the gravity of the situation generally is a way to woo any of the votes. The Supreme Court routinely hears major cases and, although this one is bigger than most, the idea of a landmark case heading to the Supreme Court is likely less novel for the Justices than it is for court watchers.

I think the truth is that the ACA cases simply present remarkably difficult legal questions and the Court has a short timeline for making a decision. Argument will likely be held across two days in March, and even assuming the case is heard on the first day possible and decided on the last day possible–March 19 and June 25, respectively–the Court will still have only 98 days to write this opinion during the busiest time of the term. As much as this case genuinely deserves a well-thought out, deliberate opinion, the Court will simply have to get this opinion right on the first try.

Extended oral argument could be a way for the Justices to flesh out some of the issues that might otherwise have been discussed via memo or screened out in early drafts. The Court may simply be trying to avoid a repeat of McConnell v. FEC, where it heard four hours of argument and still produced eight separate opinions after 93 days. Chief Justice Rehnquist was almost certainly less interested in building unanimity than his successor, however, and that may explain why the opinion was rushed out the door in such a fractured state. The Court will have a few more days this time, but the Justices will hope to produce more unified opinions.

Recently, in Citizens United v. FEC, the Court was forced to hold reargument on a new question of law and still took 134 days to produce a reasonably unified opinion. The Court released a majority opinion that was joined by only one member in full and four concurring opinions. The ACA cases have more moving parts, the Court will have fewer days to decide the cases, those days will be busier (March-June for the ACA cases and September-January for Citizens United), and political forces make a move for rehearing unlikely.

Moreover, the Justices realize that these issues are difficult and the presence of multiple petitions gave them an easy opportunity to grant extended oral argument time. Additionally, I’m not surprised that the cases were granted in tandem but not consolidated. Recently, the Court has been taking advantage of its discretion to hear cases that are similar but not identical separately. The presence of so many discrete brought up on so many different petitions made a division of issues an irresistable proposition for the Court. The Court may also wish to avoid a repeat of Citizens United, where the issues were not briefed in their entirety and rearmament was required to fully flesh out the case.

Whether extended oral argument signals the likely outcome of the case is harder to say. Proponents of the theory likely believe that extended oral argument implies that the Court will do more of its own thinking on the case and is less likely to simply follow the prevailing or “obvious” outcome of this case. Unfortunately, recent studies have suggested that the Supreme Court generally doesn’t typically heed the majority approach of circuits. I also instinctively tend to believe that the Court would do most of its own thinking on this matter and rely only peripherally on the views of lower courts. That might not be the case for other issues like specific sentencing matters or issues of statutory minutiae.

I generally think we cannot read into the outcome of the case from the decision to grant extra time, but the most compelling argument to support the notion that extend oral argument weights in favor of ACA challengers is that Justices may simply be more likely to extend argument if they are anticipate striking down the law. On an intuitive level, it seems more likely that a Justice would vote to extend time out of concern for incorrectly striking down a law than out of concern for incorrectly upholding a law. My methodology is hardly scientific, but I think the Court would be more likely to extend argument if it is leaning towards striking down a law than if it is leaning towards upholding it.

In the end, I think the extended oral argument was granted for two simple reasons: the Court knew this case would be a difficult one, and the Court knew that it would not have a lot of time to write the opinions. Joshua put it best:

If 5.5 hours of argument helps to avoid a blizzard of seriatim opinions, then lower court judges, casebook writers, and future generations of law students will be forever grateful that the Court took the extra time to sort out its views.

Amen.



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