Supreme Court Brief

U.S. Supreme Court building.

Nonlawyer Judges? SCOTUS Doesn't Seem to Mind

By Tony Mauro |

A judge who is in a position to throw someone in jail has to be a lawyer, right? Well no, and the U.S. Supreme Court on Tuesday allowed this anomaly of American justice to persist.

Bronze memorial statue of Chief Justice Roger Brooke Taney on the grounds of the Maryland State House in Annapolis, MD.

Controversy Dogs a Late Chief Justice's Monument

By Marcia Coyle |

More than 150 years after his death, Chief Justice Roger Taney, author of the "Dred Scott" decision that upheld slavery, still stirs controversy for public officials—particularly in his native home of Maryland. What should be done, if anything, about a life-size statue on public grounds of the man who wrote one of the most infamous U.S. Supreme Court opinions?

Supreme Court Associate Justice Antonin Scalia’s Bench Chair and the Bench in front of his seat draped in black following his death on February 13, 2016.

How a New Supreme Court Justice Could Hit the Ground Running—or Not

By Tony Mauro |

By tradition, Donald Trump's nominee wouldn't vote on cases argued before their tenure began—but that's not an ironclad rule, court experts say.

Jerrold Ganzfried.

Leaving Big Law, a Holland & Knight Appellate Lawyer Flies Solo

By Marcia Coyle |

After spending the last nearly 30 years in Big Law and six years before that in the U.S. solicitor general's office, appellate lawyer Jerrold Ganzfried is going solo with little concern about the weather ahead.

Chief Justice John G. Roberts Jr. (2009)

The Gaps That Led Chief Justice Roberts to Miss a Stock Conflict

By Tony Mauro |

Chief Justice John Roberts Jr. realized he needed to step aside from ruling on Life Technologies v. Promega nearly a month after oral argument. Here's why conflict checks at the nation's highest court are an imperfect process.

The Slants.

How a Blog Post Led to a Supreme Court Argument

By Tony Mauro |

In 2011, Ronald Coleman banged out a frustrated entry on his popular trademark blog about an Asian-American rock band, The Slants, that was fighting to have its name accepted as a registered trademark. "Good luck with that, fellows," Coleman wrote on the blog, titled Likelihood of Confusion. Little did Coleman know that the post would trigger a chain of events that culminates Jan. 18 when his Archer & Greiner law partner John Connell argues pro bono before the U.S. Supreme Court on behalf of The Slants.

The body of Justice Antonin Scalia arrives at the Supreme Court, on Friday, February 19, 2016.

One of Scalia's Final Law Clerks Looks Back and Ahead

By Tony Mauro |

Jonathan Urick vividly remembers the last time he and his fellow law clerks saw their boss, U.S. Supreme Court justice Antonin Scalia. "We were laughing and joking. He was in very high spirits, making jokes," he recalled. Ten months later, Urick is a new associate at McGuireWoods in Richmond—one of seven former Supreme Court clerks working at the firm. He is the first of Scalia's final four law clerks to publicly speak about his time in Scalia chambers that ended abruptly after the justice's death on Feb. 13.

U.S. Department of Veterans Affairs in Washington, D.C.

Opening a Door to Malpractice Suits Against the Veterans Administration

By Jamie Schuman |

When veteran Richard Milbauer sued the government for medical negligence, a federal court ruled it did not have jurisdiction to hear the case. That decision could leave all veterans without a way to obtain judicial review of their malpractice claims against Veterans Administration hospitals, a petition for certiorari in Milbauer v. United States warns. Reed Smith filed a friend-of-the-court brief on behalf of two law school clinics: the Antonin Scalia Law School Mason Veterans and Servicemembers Legal Clinic and the Baylor Law School Veterans' Assistance Clinic.

Rehnquist, Scalia and the Caroling Clerks

By Marcia Coyle |

Their clerkships span nearly two decades and hundreds of U.S. Supreme Court decisions, but they share one overriding memory of Christmas in the nation's high court—the annual carol sing-along led by Chief Justice William Rehnquist and later by Justice Antonin Scalia.

Seven Books for the SCOTUS Devotee in Your Life

By Tony Mauro |

The U.S. Supreme Court continues to provide fodder for new books almost daily, or so it seems. And lately, Supreme Court fiction has been rivaling nonfiction for compelling reading and insights into the workings of the nation's highest court. Here's a look at notable court-related books published in 2016, as well as some that will emerge early next year.

Judge Sri Srinivasan, of the District of Columbia Circuit.

In Supreme Court Protest Case, Circuit Judges Search for the Meaning of 'Harangue'

By Tony Mauro |

When five protesters rose one by one to disrupt a U.S. Supreme Court session in April 2015, an open mike captured the late Justice Antonin Scalia muttering, "Give them stiff, stiff sentences" as they were carried out and arrested. A year and a half later, the case against the protesters has not yet been resolved, and one part of the law under which they were indicted is under challenge on First Amendment grounds. The U.S. Court of Appeals for the D.C. Circuit heard arguments Monday in United States v. Bronstein on the constitutionality of the law that makes it unlawful to, among other things, "make a harangue or oration" in the Supreme Court building or on its grounds.

Justice Stephen Breyer (November 19, 2015)

Justice Breyer Laments Inmate's 40-Year Wait on Death Row

By Marcia Coyle |

Less than two years ago, Justice Stephen Breyer urged his colleagues to hear arguments on the constitutionality of the death penalty. In just one short week, he found additional cases to support his call. Breyer on Monday dissented from the court's refusal to hear the case Sireci v. Florida, a challenge by an inmate, Henry Sireci, who has been on death row for 40 years. Lengthy delays, Breyer wrote, "have become more common."

U.S. Supreme Court building in Washington, D.C.

The Mystery of the Lingering SCOTUS Cases

By Tony Mauro |

Nearly 11 months ago on Jan. 15, the U.S. Supreme Court granted certiorari in eight new cases. When January 15 of 2017 rolls around, three of those cases will still be pending on the docket without having been argued before the court. The court in effect confirmed that unusual circumstance on Monday when it issued its calendar for the argument cycle that begins Jan. 9 and ends Jan. 18. The three long-lingering cases were nowhere to be found on the calendar: Trinity Lutheran Church v. Pauley, Murr v. Wisconsin and Microsoft v. Baker.

Marc Elias, of Perkins Coie, addressing media outside the U.S. Supreme Court on Monday, after arguing two redistricting cases, Bethune-Hill v. Virginia State Board of Elections and McCrory v. Harris.

A SCOTUS Juggling Act for Perkins Coie's Marc Elias

By Tony Mauro |

For most appellate lawyers, arguing at the U.S. Supreme Court is the capstone of their careers. For Marc Elias of Perkins Coie, arguing two separate but related cases before the high court on Monday was just one of several career highlights this year alone. An election law specialist and general counsel for Hillary Clinton's presidential campaign, Elias in recent weeks has navigated Clinton's involvement in the on-and-off recounts sought by third-party candidate Jill Stein while also overseeing the recount of the gubernatorial race in North Carolina on behalf of his client, Democrat Roy Cooper.

Clifford Sloan, partner at Skadden, Arps, Slate, Meagher & Flom (2009)

Advocates Beware: Justices Don't Want You Sneaking New Issues Into Your Cases

By Tony Mauro |

The U.S. Supreme Court is getting fed up with lawyers who pile extra issues and arguments onto cases that were narrow when the justices first decided to grant review. Twice in the last month, justices scolded veteran advocates for deviating from or inflating the questions they had asked the court to answer in their cert petitions.

Supreme Court nominee Chief Judge Merrick Garland meets with senator Mark Kirk (R-IL), at the senator's office in the Hart Senate Office Building on March 29, 2016.

Pro Se Lawyers Tilt at Senate Inaction on Garland, Iran

By Marcia Coyle |

Two pro se lawyers from opposite ends of the country, frustrated by a lack of U.S. Senate action, turned to the courts to confront two of the hottest political topics of the day: the U.S. Supreme Court vacancy and the Iran nuclear agreement. The Iran case ended Monday. The D.C. Circuit is poised to rule soon on whether to force the Senate to act on the nomination of Merrick Garland to the high court.

Ahilan Arulanantham, 2016 MacArthur Fellow, ACLU Southern California Offices

MacArthur 'Genius' Set to Argue Immigration Case Before Supreme Court

By Tony Mauro |

ACLU attorney Ahilan Arulanantham will step to the lectern this week in a case that tests the due process rights of immigrants in detention.

Toni Massaro, professor and former dean at the University of Arizona James E. Rogers College of Law, speaking at the Federalist Society’s 2016 National Lawyers Convention, at The Mayflower Hotel in Washington, D.C., on Thursday, Nov. 17, 2016.

At Federalist Society, Scholar Casts Scalia's Sharp Rhetoric in Negative Light

By Tony Mauro |

Antonin Scalia is often regarded as one of the best and clearest writers on the court. But a powerful contrary theory was advanced that Scalia harmed his own legacy with language in his opinions that lacked empathy and was hurtful to segments of the public. Toni Massaro, professor and former dean of the University of Arizona James E. Rogers College of Law, made that case at the Federalist Society's annual convention in Washington. The SCB spoke with Massaro about her observations.

Clarence Thomas.

Five Questions Justice Thomas Actually Asked at Oral Argument

By Tony Mauro |

Despite 25 years of writing opinions, U.S. Supreme Court Justice Clarence Thomas is probably known best by the public for his silence during oral argument. Thomas made headlines in February when he ended a 10-year silent streak by asking a question, though he has not asked another one since. A new study could alter the "Silent Thomas" narrative.

U.S. Supreme Court in Washington, D.C. October 9, 2016.

Could the Election System Derail, Again?

By Marcia Coyle |

Until the final count shows a clear winner of the 2016 presidential election, the specter of 2000's Bush v. Gore will haunt Election Day. Could it happen again, but this time before a divided 4-4 U.S. Supreme Court?

E. Barrett Prettyman, Jr.

E. Barrett Prettyman Jr., Hogan Leader and Longtime Mentor of Supreme Court Advocates, Dies at 91

By Tony Mauro |

E. Barrett Prettyman Jr., who died at the age of 91 on Nov. 4, knew pretty much all there was to know about the Supreme Court and the lawyers who argued before it.

Supreme Court Justice Sonia Sotomayor

Sotomayor, Thomas and Alito Deepen Their Dispute Over Juvenile Sentences

By Marcia Coyle |

In a series of opinions over the past nine months, Justices Clarence Thomas and Samuel Alito Jr. have faced off with Justice Sonia Sotomayor over life sentences for juvenile offenders. The tension is rooted in just how far to apply the court's rulings that have limited those sentences. The conflict surfaced again this week.

Justice Elena Kagan

Kagan Dishes on Taking Chances, Anger at the Court and Going to Law School 'For All the Wrong Reasons'

By Tony Mauro |

U.S. Supreme Court Justice Elena Kagan was clearly pumped by the audience she was addressing in Virginia recently. Hundreds of law students looking for public interest jobs at the Equal Justice Works career fair took a break to hear Kagan's own story about her path to the nation's highest court. Along the way, she offered advice, life lessons, and stories from her life at the court.

Neal Katyal of Hogan Lovells.

Docket Chat: Katyal Hits Stride in New Supreme Court Term

By Tony Mauro |

Former acting U.S. Solicitor General Neal Katyal argued before the U.S. Supreme Court on Monday—the first of seven cases he is already scheduled to argue this term.

Rare Supreme Court Bar Meeting Will Honor Scalia

By Tony Mauro |

The U.S. Supreme Court bar exists more in the imagination than in reality. It has no annual meetings or dues, and has but one visible, melancholy function—to honor the memory of deceased justices. The bar has done just that since 1822, and it will do it again at 1:45 p.m. on Nov. 4 when it convenes in the court's upper great hall to commemorate Justice Antonin Scalia, who died eight months ago.

Sonia Sotomayor.

Sotomayor, in Dissent, Calls Out Colleagues on Death Penalty Faults

By Marcia Coyle |

Justice Sonia Sotomayor has never said or written that she believes the death penalty is unconstitutional. Indeed, her views on the death penalty remain unclear. Instead, Sotomayor has wielded her pen in dissent—sometimes alone—to focus on flaws in the application of capital punishment: from ineffective assistance of counsel to questionable lethal injection drugs to judges who override life sentences by juries.

(L-R) Antonin Scalia and Bryan Garner.

Why it Took 12 Judges to Replace Scalia for Bryan Garner's Latest Book Project

By Tony Mauro |

In 2012, legal writing guru Bryan Garner proposed writing another book with U.S. Supreme Court Justice Antonin Scalia—this one on the role and value of precedents in judicial decision-making.

U.S. Supreme Court building in Washington, D.C. March 4, 2015. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

Race Docket at High Court Runs Deep in New Term

By Marcia Coyle |

Race, never far from the U.S. Supreme Court docket, moved to the fore in the term's first week in two arguments that challenge its presence in the criminal justice system. The justices this term will grapple with race in criminal justice, electoral maps and lending discrimination.

U.S. Supreme Court building.

Kim Kardashian Robbery Makes Hypothetical in Opening SCOTUS Arguments

By Marcia Coyle |

The U.S. Supreme Court's opening session Tuesday featured two hours of argument over the intent of jurors who gave inconsistent verdicts and what elements prosecutors must prove for bank fraud. The answers were as clear as the skies over the Caribbean as Hurricane Matthew spins up the coast. Not even hypotheticals involving such real-life characters as Kim Kardashian and Jesse James could clear the clouds in the courtroom.

Lisa Blatt.

Docket Chat: Women Take Lectern in Upcoming SCOTUS Arguments

By Tony Mauro |

The calendar for the first two weeks of oral arguments at the U.S. Supreme Court is unusual in several ways, not the least of which is that nearly half of the lawyers stepping up to the lectern will be women.

Supreme Court justice Ruth Bader Ginsburg on stage during a talk with Law Dean William Treanor for the Annual Dean's Lecture at Georgetown University Law Center in February.

How the High Court Came to Recognize the Jewish Holidays: When Ginsburg Called Rehnquist a Mensch

By Tony Mauro |

When the U.S. Supreme Court opens its fall term on October 3, the public won't see a typical First Monday in October.

Anthony J. Franze, left, and R. Reeves Anderson, right.

In Unusual Term, Big Year for Amicus Curiae at the Supreme Court

By Anthony J. Franze and R. Reeves Anderson |

Despite the unusual term, friends of the court continued to play a key role at One First Street. In our sixth year analyzing the Supreme Court’s amicus curiae docket for The National Law Journal, we found that amici filed more than 860 briefs, participated in more than 90 percent of merits cases, and, more often than not, seemed to capture the justices' attention.

U.S. Supreme Court.

Backpage.com is Challenged on Two Fronts in Supreme Court

By Marcia Coyle |

The two cases that involve the online classifieds company Backpage.com feature very different legal questions. But they both carry potentially significant implications for internet content providers in particular and, more largely, for the digital economy.

Frank Wagner

Remembering Frank Wagner, Who Helped the Supreme Court Go Digital

By Tony Mauro |

Frank Wagner, the former U.S. Supreme Court official who put the justices' decisions into publishable form for more than 23 years and in 2000 helped to put them online, died Aug. 28. He was 71 years old.

Possibly Heeding Calls for Reform, Supreme Court Justices Shed Stock Holdings

By Tony Mauro |

The U.S. Supreme Court seems as intractable as ever on the perennial issue of allowing broadcast coverage of its proceedings. But there are glimmers of glasnost at the court—most notably the recent sale of nearly $1.5 million in stocks by justices apparently seeking to avoid investment-related recusals.

David Strauss, University of Chicago's Gerald Ratner Distinguished Service Professor of Law.

Too Many Supreme Court Clinics?

By David A. Strauss |

Recently the University of Chicago Law School, where I teach, established a Supreme Court and appellate clinic, in partnership with the law firm of Jenner & Block. In the Supreme Court Brief, Tony Mauro asked, quite reasonably: why? There are already Supreme Court clinics at other law schools. There are Supreme Court specialists at great law firms. And the court hears only about 80 cases a year. I am the faculty director of the new University of Chicago clinic, so let me try to explain.

U.S. Supreme Court.

Justices Pick Former Thomas Clerk for Supreme Court Debut

By Tony Mauro |

The U.S. Supreme Court recently appointed Chicago lawyer Adam Mortara to argue in an upcoming case brought by Travis Beckles, a Miami man challenging the federal sentencing guidelines for career offenders. In may seem like an odd fit for Mortara, a trial lawyer at Bartlit Beck Herman Palenchar & Scott who specializes in intellectual property cases and has never argued before the high court.

The U.S. Supreme Court divided 4-4 in Hawkins v. Community Bank.

The Costly Fallout of a Deadlocked Supreme Court

By Marcia Coyle |

In the U.S. Supreme Court, a case that ends in a deadlock has no precedential value, but it does have consequences. Consider Valerie Hawkins and Janice Patterson. After an unfavorable decision was affirmed in March by a divided Supreme Court, the women, petitioners now face multimillion-dollar judgments, according to their lawyer. Both are preparing for bankruptcy.

U.S. Supreme Court Justice Antonin Scalia.

Defamation Case Tests Scalia's Least Favorite Supreme Court Precedent

By Tony Mauro |

The late U.S. Supreme Court Justice Antonin Scalia would have loved to take on the case of Armstrong v. Thompson, now before the court. Republican presidential candidate Donald Trump might be interested too. If granted, it would be the first time in decades that the high court takes a fresh look at New York Times v. Sullivan, the landmark 1964 decision that made it very difficult for public officials to successfully sue for libel or defamation.

U.S. Supreme Court building.

How Bad is Criminal Defense Advocacy at the Supreme Court?

By Tony Mauro |

A long-simmering problem in U.S. Supreme Court practice is gaining new attention: the allegedly sorry state of advocacy at the court on behalf of criminal defendants. As the Supreme Court relies more and more on the specialized Supreme Court bar, criminal defendants are still represented mainly by "novice" advocates. Some dispute the magnitude of the problem, and any possible remedy may run up against the long-standing culture of resistance by criminal defense lawyers who are loath to give up cases they have handled for years.

Anti-death penalty buttons outside the Supreme Court. June 29, 2015.

An Annotated Justice Breyer on the Death Penalty

By Marcia Coyle |

When the Brookings Institution's head, Strobe Talbot, decided that Justice Stephen Breyer's Glossip death penalty dissent deserved a wider audience, he called John Bessler, who's written four books on capital punishment, to discuss how to reach that audience. The result is this month's publication by Brookings Institution Press of Bessler's unusual approach: Against The Death Penalty.

(l-r) Jenner & Block’s Craig Martin, University of Chicago Law School’s Dean Thomas J. Miles, assistant clinical professor Sarah Konsky, and David Strauss, University of Chicago's Gerald Ratner Distinguished Service Professor of Law.

Why Now for Another Supreme Court Clinic?

By Tony Mauro |

Jenner & Block and the University of Chicago picked an odd time to join more than a dozen law schools in launching a Supreme Court clinic. Their joint announcement Tuesday comes as the high court prepares for a new term in which it has granted review in only 30 cases so far, an unusually small number. The new clinic will have to compete fiercely with other clinics and law firms for a dwindling number of cases—a trend that has had some wondering if the clinic movement has peaked.

Demonstration outside the U.S. Supreme Court to bring attention to reconsideration of the Citizens United v. FEC decision. February 23, 2012.

How Supreme Court Decisions Play in Presidential Elections

By Marcia Coyle |

What do Citizens United, Roe v. Wade and Dred Scott have in common? Presidential candidates have targeted those and other U.S. Supreme Court decisions in their campaigns since the election of 1860 and with little success at making them game-changing issues. "I think the current election has in some ways accelerated the trend of making the court a more prominent election issue," said William G. Ross of Samford University Cumberland School of Law. "There have been more comments by candidates in the primaries about the role of the court and the significance of the election for appointment of justices."

Amending America, a National Archives exhibit, features, among other things, more than 11,000 constitutional amendments proposed from 1787 to 2014.

Thousands of Proposed Constitutional Amendments Need Attention—on Wikipedia

By Marcia Coyle |

The Law Library of Congress and the National Archives have wiki entries related to more than 11,000 proposed constitutional amendments that need sharp eyes and quick fingers to write and edit. The Law Library and the National Archives, along with Wikimedia D.C., are hosting a Wikipedia edit-a-thon on July 29.

Bessie Margolin photographed on the steps of the U.S. Supreme Court building in the 1950s.

SCOTUS Advocate Bessie Margolin Finds Place in History

By Suzanne Monyak |

Attorney-author Marlene Trestman recalls her first conversation with the accomplished labor lawyer and why it was time for her story to be told.

Muhammad Ali

Former Law Clerk Adds New Footnote to Muhammad Ali Supreme Court Case

By Tony Mauro |

The recent death of the legendary Muhammad Ali has triggered new interest—and new revelations—about the 1971 U.S. Supreme Court ruling that reversed his conviction on charges of dodging the draft.

Flight-Sharing Case, Shut Down by Feds, Arrives at Supreme Court

By Jamie Schuman |

Private pilots have long posted ads at local airports to find passengers to chip in on costs. When a company called Flytenow moved that process online, the government put a stop to it. A cert petition pending before the U.S. Supreme Court in Flytenow v. Federal Aviation Administration argues that grounding the start-up was "dangerously anachronistic" and could stymie the growth of other "sharing economy" services, such as Uber and Airbnb.

ACLU Legal Director Steven Shapiro.

Steven Shapiro, 'Jagger' of Civil Liberties, Reflects on ACLU Career, Challenges

By Marcia Coyle |

This fall, Steven Shapiro, the national legal director for the ACLU, leaves the post he has held since 1993 and the organization for which he has worked since 1987. He directed a large docket of cases that ranged from free speech to gay rights to the death penalty. Shapiro sits down with the SCB to reflect on civil rights, privacy and other areas.

Scalia's chair and the bench were draped in black after his death on Feb. 13.

Supreme Court Trends in Class Actions after Scalia

By Steffen N. Johnson and Paul N. Harold |

The U.S. Supreme Court's 2015 term will of course most be remembered for the passing of Justice Antonin Scalia, whose untimely death promises to affect the court for years to come—and on everything from high-profile questions of constitutional law to how the court reads statutes and what the court decides. It appears that several decisions this term would have come out differently had Justice Scalia lived to see the end of June. In some areas, however, Justice Scalia's absence appears not to have altered the outcomes, even when the court was closely divided on critical issues.

Carter Phillips of Sidley Austin (2008)

Which Firms Most Often Capture the Justices' Review?

By Marcia Coyle |

The University of Southern California's Adam Feldman and Alexander Kappner studied 93,000 cert petitions between 2001 and 2015 to try to glean what factors make a petition more or less likely to be granted. A firm’s success "with their aggregate cert filings does not guarantee success on a per-case basis," according to the study.

Justice Ruth Bader Ginsburg

Even the Supreme Court Makes Flubs—and Now it is Letting the Public Know

By Tony Mauro |

A letter sent by the U.S. solicitor general’s office alerting the Supreme Court to an error in one of its recent opinions is shedding new light on what happens when the court messes up.

U.S. Solicitor General Donald Verrilli Jr. in his office at the U.S. Department of Justice on June 24.

Cases and Controversies: Verrilli on Privacy, Voting Rights and Doing Penance

By Tony Mauro and Marcia Coyle |

During an extended interview on June 24, his last day in office, U.S. Solicitor General Donald Verrilli Jr. discussed not only recent decisions, but other issues—past, present and future—that are on his mind. "We live in an era of staggering technological innovation," he said, predicting ever more scrutiny of the Fourth Amendment and privacy.

Demonstrators outside the U.S. Supreme Court on the day of arguments in the immigration case United States v. Texas.  April 18, 2016.

Waiting for a New Justice, and a New Chance to Prevail

By Marcia Coyle |

The California teachers who lost their challenge in the union-fees case this term hope to snatch victory from a 4-4 defeat by seeking a rehearing when a new justice is confirmed. Will the United States do the same in the immigration case?

Anthony Kennedy, left, and Samuel Alito, right.

Justice Kennedy’s Startling Shift on Affirmative Action

By Tony Mauro |

Justice Anthony Kennedy, who has voted against every race-based affirmative action program during his tenure on the court, shifted gears Thursday, writing the majority opinion upholding the University of Texas’ affirmative-action policy for undergraduate admissions. He found that the use of race as a factor in university admissions could withstand strict scrutiny.

Justices Expand False Claims Act Liability—With Conditions

By Marcia Coyle |

Health providers, medical and drug companies, educational institutions and others who contract with the federal government avoided a major defeat Thursday when the U.S. Supreme Court upheld a contested theory of liability under the government's chief fraud-fighting law, but imposed limits on its use.

Clarence Thomas.

Thomas Sweeps Precedents Aside in Indian Law Case

By Tony Mauro |

U.S. Supreme Court Justice Clarence Thomas is known to have his doubts about stare decisis, the doctrine of standing by precedents. The late Justice Antonin Scalia once said that Thomas "doesn’t believe in stare decisis, period." Practitioners know that he is the justice most receptive to pleas to overturn undesirable precedents. Thomas’s concurrence in an Indian law case June 13 may take the cake.

Justices Decline to Revisit Power Plant Mercury Standards

By Marcia Coyle |

Twenty states failed to persuade the U.S. Supreme Court on Monday to examine an appellate court's decision to leave in place legally flawed mercury and air toxics regulations while the Environmental Protection Agency addressed the shortcomings.

Former Pennsylvania Chief Justice Ronald Castille (left) and presidential candidate Donald Trump have figured in separate high-profile disputes over the recusal of judges.

A Law Prof's Take on Judicial Recusals, the Williams Decision and Trump

By Tony Mauro |

Recusal has emerged as an issue in the presidential campaign, in the form of Republican candidate Donald Trump's criticism of Judge Gonzalo Curiel for not stepping aside from the civil suit against Trump University. The high court itself has faced recusal controversies in recent years, prompting calls for justices to be more transparent in explaining why they do or don't recuse in certain cases. Stetson University College of Law professor Louis Virelli III has just written Disqualifying the High Court, a book about recusal that focuses mainly on the Supreme Court but also charts the history of recusal statutes—many of which he believes are unconstitutional. Our conversation with Virelli was edited for length and clarity.

U.S. Supreme Court building in Washington, D.C.

Supreme Court Relaxes Rules for Enhanced Patent Damages

By Scott Graham |

Willful patent infringement just became a lot more dangerous. In a rare pro-patent holder decision, the U.S. Supreme Court ruled Monday that the U.S. Court of Appeals for the Federal Circuit’s Seagate standard governing enhanced damages for willful infringement is too hard to meet.

U.S. Supreme Court building in Washington, D.C.

A 'Chaotic and Thrilling' Month at the Supreme Court

By Marcia Coyle |

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.

Tennessee Supreme Court building in Nashville, Tennessee.

Justices Asked to Protect Against Ineffective Lawyers in Parental Termination Cases

By Jamie Schuman |

Criminal defendants are guaranteed the effective assistance of counsel. A certiorari petition to the U.S. Supreme Court asks whether that protection should apply in termination of parental rights proceedings as well.

John Roberts Jr.

Chief Justice Roberts Misses Solo Lawyers With 'Battered Briefcases'

By Tony Mauro |

In his 11th year as chief justice, John Roberts Jr. is sounding wistful about the days earlier in his career when lawyers who argued before the U.S. Supreme Court and law clerks who worked for the justices were less polished than they are now.

U.S. Supreme Court to Revisit Death Penalty Issues in Texas Cases

The intersection of intellectual disability and race with capital punishment lies at the heart of two appeals that the court on Monday agreed to review next term.

U.S. Supreme Court building in Washington, D.C. March 4, 2015. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

High Court Challenge Could Unravel Military Death Penalty

By Marcia Coyle |

In the past eight years, the Obama administration has been no stranger to charges it has violated separation of powers or exceeded its statutory authority. But a new charge comes from an unusual source—the military justice system—in a U.S. Supreme Court petition that has the potential to dismantle the military's capital punishment scheme.

U.S. Supreme Court building.

Supreme Court, Even Without Scalia, Still Favors Property Owners in Environmental Case

By Tony Mauro |

Even without the late Justice Antonin Scalia leading the charge, the U.S. Supreme Court showed on Tuesday it can rein in the administrative state and give property owners new pathways to challenge regulators in court.

American Samoa

High Court Veterans Make Arguments for Birthright Citizenship

By Marcia Coyle |

During his GOP presidential campaign, candidate Donald Trump triggered a debate over birthright citizenship. Now, some of the top high court advocates urge the U.S. Supreme Court to weigh in on what birthright citizenship means, particularly for persons born in U.S. territories.

Anti-death penalty buttons outside the Supreme Court. June 29, 2015.

John Roberts Knocks Down Prosecution Bias Excuses One by One

By Tony Mauro |

Chief Justice John Roberts Jr. on Monday sent a strong message to state courts and prosecutors that racial bias in jury selection is unacceptable.

Demonstrators outside the U.S. Supreme Court on the day of arguments in the immigration case <i>United States v. Texas</i>. April 18, 2016.

As the Supreme Court Weighs Immigration Plan, a Texas Judge’s Order Causes a Big Stir

By Marcia Coyle |

While the challenge to Obama administration’s plan to delay deportations of certain illegal immigrants awaits a decision in the U.S. Supreme Court, some immigration groups want the justices, however they decide, to keep the case from returning to the original district court judge.

An Untainted Right to Counsel: Unresolved Questions in 'Luis v. United States'

By Dan Himmelfarb and Travis Crum |

The Supreme Court may soon be confronted with calls to overturn decades-old precedent that permits the pretrial freeze of tainted assets.

Paul Smith of Jenner & Block.

Did the Justices Send a Message to the EEOC in a Legal-Fee Case?

By Tony Mauro |

By ruling in favor of awarding legal fees to a company that the government accused of widespread sexual harassment, the U.S. Supreme Court may have been sending a broader message that the Equal Employment Opportunity Commission needs to clean up its act.

Sidley Austin's Carter Phillips

'Don’t Scream,' and Other Advice for Appellate Lawyers and Law Students

By Tony Mauro |

Advanced Appellate Advocacy, a new book, delves into the craft of framing, researching, writing and arguing cases on appeal at the Supreme Court and lower courts.

Demonstrators outside the U.S. Supreme Court on the day of arguments in the case <i>Zubik v. Burwell,</i> which challenges the Health and Human Services Contraception Mandate on behalf of religious nonprofit organizations.

Justices Issue Narrow Rulings on Path to Consensus

By Marcia Coyle |

The U.S. Supreme Court on Monday demonstrated that the "straight and narrow" may not be just the path to honest and moral behavior, but also a path to consensus on a bench struggling without a critical ninth vote.

With oral arguments over for this term at the U.S. Supreme Court, the Bancroft firm topped the list of law firms with the most arguments at eight.

Supreme Court Specialists, Mostly Male, Dominated Arguments This Term

By Tony Mauro |

With oral arguments over for this term at the U.S. Supreme Court, Bancroft has topped the list of law firms with the most arguments at eight—a number rarely reached by any outfit other than the U.S. solicitor general’s office.

Retired union steamfitter Mike Reynders of Fort Atkinson, right, holds a sign in support of Wisconsin Gov. Scott Walker while listening to Lt. Gov. Rebecca Kleefisch speak Tuesday, April 10, 2012, in Dane, Wis. Walker and Kleefisch spent the day campaigning around the state two months away from the June 5 recall election.

Denied Pro Bono Help, Wisconsin Prosecutors Appeal Campaign Finance Ruling

By Marcia Coyle |

The petition’s backdrop is the special-prosecutor investigation into whether Wisconsin Gov. Scott Walker illegally coordinated fundraising and spending with outside groups on his behalf in the 2011-2012 recall campaigns.

The Center for Auto Safety urged a California judge to unseal records in a case that accused Chrysler of concealing safety defects.

Big Business Wants Justices to Step Into Sealed Document Fight

By Marcia Coyle |

The business community is lining up behind a major automaker in a U.S. Supreme Court fight over the test for keeping sealed court documents sealed throughout litigation.

Pom Wonderful bottles

POM Wonderful Loses Long Fight With FTC Over Deceptive Ads

By Tony Mauro |

The Federal Trade Commission has finally prevailed in a long-running dispute with POM Wonderful over allegedly misleading claims about the health benefits of the company’s pomegranate products.

Kevin Pierce of Hawkes Co. Inc.

Ability to Challenge Agencies in Court is 'Judicial Activism' Both Sides Can Support

By Jerry Stouck |

COLUMN: Liberals and conservatives alike should agree that judicial oversight of federal agencies is necessary to help prevent agency overreaching.

Former Virginia Gov. Bob McDonnell speaks outside the Supreme Court in Washington, Wednesday, April 27, 2016, after the Supreme Court heard oral arguments on the corruption case of McDonnell.

The Hypotheticals That Could Doom the Case Against Bob McDonnell

By Tony Mauro |

Deputy U.S. Solicitor General Michael Dreeben argued his 100th case on Wednesday, and it may have been his toughest—in part because of the wild array of hypotheticals the justices threw at him and his adversary.

Gregory Craig, left, and Fred Fielding, right.

Roberts Singles Out Former White House Counsel for 'Extraordinary' Brief

By Marcia Coyle |

Chief Justice John Roberts Jr. on Wednesday singled out an amicus brief, filed by Democratic and Republican former White House counsel, in support of former Virginia Gov. Robert McDonnell. "I think it's extraordinary that those people agree on anything. But to agree on something as sensitive as this and to be willing to put their names on something that says this—this cannot be prosecuted conduct. I think is extraordinary," Roberts said.

Lisa Blatt.

Lisa Blatt's End-Run Play Puts Redskins Case Before Supreme Court

By Tony Mauro |

Appellate advocates usually wait for a federal appeals court to rule before they take a case to the U.S. Supreme Court. Lisa Blatt, head of Arnold & Porter's appellate and Supreme Court practice, leapfrogged over the U.S. Court of Appeals for the Fourth Circuit to get her petition in the Washington Redskins trademark dispute before the justices. Blatt's unusual strategy invoked a rarely used rule of the Supreme Court that allows parties to seek certiorari before an appeals court has ruled.

Laurie Higginbotham, of Whitehurst, Harkness, Brees, Cheng, Alsaffar & Higginbotham, during a press conference held at the National Press Club in Washington, D.C.  October 13, 2015.

Military Gender-Bias Case Put on Hold at Supreme Court

By Tony Mauro |

A case before the U.S. Supreme Court that posed a novel claim of gender discrimination in the military has been sidelined after the government initiated talks to settle the case. The petition challenged an aspect of the "Feres doctrine," an exception to the Federal Tort Claims Act that shields the U.S. government from being held liable for injuries suffered by military personnel for activities "incident to service."

Paul Smith, left, and Joshua Rosenkranz, right.

In Second Round of 'David v. Goliath' Copyright Case, David Wants Legal Fees

By Marcia Coyle |

It was a David versus Goliath battle on the field of copyright law. David emerged victorious with a little help from the U.S. Supreme Court in 2013. Now David wants more than $2 million in attorney fees. The biblical analogy came from Justice Ruth Bader Ginsburg during Monday's high court arguments in Kirtsaeng v. John Wiley & Sons. And just like three years ago, the justices did not seem satisfied with either argument.

When it Comes to Books on Supreme Court, Fiction Rivals Truth

By Tony Mauro |

Writing about the U.S. Supreme Court—both fiction and nonfiction—is a growing genre, but it has its pitfalls and challenges. Five authors gathered recently to discuss their work and experiences. Georgetown's Supreme Court Institute hosted the event, and C-SPAN's Book TV aired the panel discussion on April 23.

In Drunk Driving Challenge, Justices Want Facts, Not Law

By Marcia Coyle |

The frustration across the bench was palpable. “You’re not answering the question.” “You’re just not answering the question.” The question, Justice Elena Kagan, stepping up to assist her colleagues, tried to explain, was what are the “real world harms” of requiring law enforcement to get warrants for breathalyzer tests of persons arrested for suspected drunk driving.

Brief of the Week: Aiding Starving Artists in Copyright Disputes

By Jamie Schuman |

Before David Leichtman became a lawyer, he studied theater in college and earned a master’s degree in theater history. Now a partner in intellectual property and business litigation in Robins Kaplan’s New York office, Leichtman stays close to the arts through his pro bono work.

Justices Wrestle With How False a 'False Claim' Must Be

By Marcia Coyle |

The federal False Claims Act is the government’s chief fraud-fighting tool, and a lucrative one at that. On Tuesday, the U.S. Supreme Court wrestled with how false a claim for payment must be in order to earn the law’s punishing penalties.

A group of attorneys who are deaf pose for a portrait outside the U.S. Supreme Court after being sworn into the Supreme Court Bar on Tuesday, April 19, 2016.

Roberts Uses Sign Language to Welcome Deaf Lawyers to Supreme Court Bar

By Tony Mauro |

In a historic gesture, Chief Justice John Roberts Jr. used American Sign Language from the bench Tuesday to welcome 12 deaf or hard-of-hearing lawyers as new members of the U.S. Supreme Court bar.

Helgi Walker of Gibson Dunn & Crutcher.

Gibson Dunn Partner Reflects on Appointed 'Friend' Role in Supreme Court Case

By Tony Mauro |

Helgi Walker, a partner at Gibson, Dunn & Crutcher, argued on the losing side of a U.S. Supreme Court decision handed down Monday, but she did not have to break the news to a forlorn client.