VIEW FROM THE COURT
A Scalia argument, then a yacht excursion
on Oct 10, 2023 at 7:44 pm
It’s the second week of the new term, with two otherwise garden-variety cases set for argument on Tuesday, but with each having some noteworthy highlights.
Meanwhile, this is the third week of the new season of Justice Ketanji Brown Jackson’s favorite TV show, “Survivor.” She raved about the CBS show during a commencement address to American University’s law school last spring, so much so that when another CBS show, “The Price is Right at Night” had an episode last week in which the audience was made up entirely of “Survivor” superfans, I strained to see whether the justice might be in the audience. But apparently not.
In the courtroom on Tuesday, Maureen Scalia, the wife of the late Justice Antonin Scalia, is here, in the guest box. Her son Eugene Scalia, a former U.S. secretary of labor under President Donald Trump and a partner at Gibson, Dunn & Crutcher, will be making his first high court argument. In Murray v. UBS Securities LLC, he represents the defendant, an investment banking firm in a case brought under the Sarbanes-Oxley Act alleging retaliation against a whistleblower.
Former U.S. Solicitor General Ted Olson, another Gibson Dunn partner, is not on the brief but is here in the front row of the bar section, apparently to give support to Scalia. Other members of the multigenerational Scalia clan are in the courtroom as well.
As Lydia Wheeler reported in Bloomberg Law last week, it is rare but not unprecedented for a child of a sitting or former justice to argue before the Supreme Court. Most recently, Justice Tom Clark recused himself in a 1959 case when his son Ramsay argued. (President Lyndon B. Johnson later famously nominated Ramsay Clark as attorney general when he wanted to prod the elder Clark to retire from the court and make way for a vacancy.)
It’s also the first time in recent memory that a former Cabinet member has argued before the court. Eugene Scalia said at a recent conference that he loved coming home from the Labor Department and hearing his young daughter call him “Mr. Secretary.” (One wonders if the Scalia brood—five sons and four daughters—referred to their father as “Justice Scalia” when he arrived home from the office.)
Representing the whistleblower, Trevor Murray, is Easha Anand of the Stanford Law School Supreme Court Litigation Clinic, who is also making her first high court argument.
Before the argument begins, there is some brief confusion, as the two sides have initially set up on the wrong side of the lectern. But when Anthony Yang, an assistant to the U.S. solicitor general who will argue in support of Murray, arrives, he evidently helps clarify that the S.G.’s office always argues from the right side of the lectern (looking toward the bench), as does whichever party the S.G. is supporting – here, Murray. (This confusion happens now and then, most recently two terms ago.)
Once everyone is settled into their proper places, the justices take the bench. For bar admissions, Chief Justice John G. Roberts calls on, among others, the eldest son of his former colleague to move the admission of one lawyer.
“Mr. Scalia,” Roberts says, and it is a little jarring, since the Scalia name uttered in this courtroom was usually proceeded by “Justice.”
Anand, Yang, and “Mr. Scalia” all do a fine job during a breezy 90 minutes on the statutory question under Sarbanes-Oxley. (Anand will refer several times to the court’s 2015 decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch, about the standard of proof in an employment-discrimination case. It was a decision in favor of a job applicant to the trendy clothing store who sought to wear her hijab, and it was written by Justice Scalia. “This is really easy,” Scalia had said to lead off his opinion announcement.)
The second case is Great Lakes Insurance SE v. Raider Retreat Realty Co., involves whether, under federal admiralty law, a “choice-of-law” clause in a maritime contract can be rendered unenforceable if enforcing it would be contrary to the “strong public policy” of the state whose law is displaced.
The advocates are Jeffrey Wall, a former principal deputy and acting solicitor general during the Trump administration (and now a partner at white-shoe law firm Sullivan & Cromwell), who has argued many times before the court, and Howard Bashman, who runs an appellate boutique in Fort Washington, Pa.
Bashman is well-known among a certain nerdy law crowd for his blog “How Appealing,” which links to all manner of appellate legal developments. If the industrious Bashman dropped his blog, the entire legal journalism ecosystem might collapse. And while I’m sure he did his moot courts and other preparation, he still was posting to “How Appealing” as recently as yesterday.
To simplify a bit, the case is about a yacht that ran aground but whose insurance claims were denied because the yacht’s fire extinguishers had not been inspected or recertified, in violation of the policy.
“But there was no fire,” Justice Samuel Alito tells Wall, though he was setting up what seems like a friendly question. “The absence of fire extinguishers up to your standards had nothing whatsoever to do with this. And so you have this line [in his brief] and so to deny coverage on that ground does seem harsh, but you say: Although that denial may seem harsh to the land-bound, it reflects traditional maritime principles.”
“Suppose, you know, I spent a lot of time sailing around the world on ships, it wouldn’t seem harsh to me anymore?” Alito says. The line draws some chuckles, and for a time it seems this is as far as the court will go in drawing attention to yachts and sailing at a time when one of Alito’s colleagues is facing ethics questions about accepting free yacht trips.
Wall says this struck him as harsh as well, but “there is a different tradition that grew up around the admiralty system and Lloyd’s of London,” with international insurers unable to easily verify safety measures. You can’t get your boat policy, for a yacht like this, anyway, “from Progressive or GEICO,” Wall says.
As the argument wound down, Justice Clarence Thomas—he of the ethics concerns regarding his failure to disclose luxury yacht travel from a billionaire—showed no hesitation to jump in with a yacht question.
“Just a short question, Mr. Bashman, to satisfy my curiosity. Were they able to salvage those twin 12-V 71s?” Thomas asked, in reference to the engines on the grounded yacht.
Bashman said that while it was outside the record of the case, the yacht “may have been run aground to avoid sinking it so that it could be salvaged more easily.”
The vessel is now back in “working order,” he said.
A few moments later, in his rebuttal, Wall shows no hesitancy to plunge into potentially treacherous waters.
“Justice Thomas, to your central question, the boat is available for sale online if you have a half million dollars,” Wall says. “As best I can tell from the pictures, the engines were salvaged, so don’t worry.”
The courtroom erupts in laughter, led by Thomas’s hearty guffaws.