Briefly:

• At USA Today, Richard Wolf reports that “[a]fter 10 years on the Supreme Court, [Justice Sonia] Sotomayor, 65, is not only its most outspoken questioner – succeeding the late Justice Antonin Scalia, who inspired today’s ‘hot bench’ – but its most frequent public speaker and most prolific author,” whose “voice, in all its forms, has become the liberal conscience on a conservative court.”
• David Morgan reports at Reuters that “[t]he U.S. agency responsible for preserving government records said on Wednesday that President Donald Trump and former President George W. Bush can review a request by House Democrats for the records of Supreme Court Justice Brett Kavanaugh.”
• At The National Law Journal (registration may be required), Marcia Coyle reports that “Stanford Law School professor Pamela Karlan is set to be at the U.S. Supreme Court lectern Oct. 8 to argue [in two consolidated cases] that federal civil rights law protects employees from job discrimination because of their sexual orientation”; Coyle notes that although consolidated cases “sometimes present the sensitive question of who will argue, … there was no real disagreement on how to proceed by the lawyers for the Title VII plaintiffs in the two cases.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

Michael Dreeben served in the Office of the Solicitor General from 1988 until 2019 and has argued over 100 cases before the Supreme Court.

The chance to serve in the Office of the Solicitor General is the professional honor of a lifetime. The privilege of working for and among so many giants of the law — persons of brilliance, decency, dedication and integrity — is unmatched. I feel a deep sense of gratitude to my former colleagues who wrote tributes to my career and to all of the others with whom I served. As great an honor as the writings are, I can’t help but feel that the tributes are at bottom a testament to the institutional strengths of the Solicitor General’s office.

Deputy Solicitor General Michael R. Dreeben arguing Alleyne v. U.S. (Art Lien)

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Briefly:

• At the Pew Research Center’s Fact Tank blog, Claire Brockway and Bradley Jones discuss a new Pew survey showing that “a majority of Americans (62%) say they have a favorable view of the Supreme Court,” but that “Democrats and Republicans are increasingly divided in their assessments of the court”: “[T]hree-quarters of Republicans and Republican-leaning independents have a favorable opinion of the Supreme Court, compared with only about half (49%) of Democrats and Democratic leaners.”
• Brian Cassidy observes at Bloomberg Law that “[w]hatever their overall differences in legal philosophy and interpretation, the Justices … have traditionally shown a high level of agreement in intellectual property (IP) cases,” a trend that “continued in six IP cases decided during the Court’s 2018 term, covering subjects ranging from scandalous trademarks to secret pharmaceutical sales.”
• At Real Clear Politics, David McDonald points to “the outlines of a consensus” in The American Legion v. American Humanist Association, which held that a 40-foot cross honoring World War I veterans on public land in Maryland does not violate Constitution’s bar on establishing religion, as evidence that “[w]hile significant disagreements remain among the justices, history and tradition are now central to the discussion in a way that would have been unthinkable only 20 years ago.”
• For the News Service of Florida (via the Tallahassee Democrat), Jim Saunders reports that “a federal judge will hear arguments in December in a long-running water war between Florida and Georgia.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

This week we highlight petitions pending before the Supreme Court that address a district court’s discretion to deny a request for a writ of habeas corpus to compel a nonparty inmate to appear as a trial witness and whether solicitation can constitute an “attempt” under the Controlled Substances Act.

The petitions of the week are:

Briefly:

• Greg Stohr reports at Bloomberg that, “[a]s mass shootings revive the U.S. debate over gun policy, the Supreme Court is weighing whether to go forward with a Second Amendment showdown for the first time in a decade.”
• At Politico Magazine, Renato Mariotti notes that “an important strand of the debate [over gun control] has now landed in the Supreme Court”: “Last week, the gun-maker Remington … asked the Supreme Court to overturn a Connecticut decision that gave Sandy Hook families the ability to sue the company over the way it marketed the weapon used in the 2012 school massacre.”
• For The Daily Caller, Kevin Daley reports that “Democrats on the House Judiciary Committee asked the National Archives Tuesday to release documents from Justice Brett Kavanaugh’s service in the George W. Bush White House.”
• At Slate, Paul Horvitz takes issue with a recent ruling by a judicial panel dismissing misconduct complaints against Kavanaugh.

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Supreme Court decisions tend to impact more than just the individuals named in a lawsuit. Supreme Court Rule 10, the one official written description of factors that may lead to a higher likelihood of a cert grant, focuses primarily on areas with inconsistent court decisions across the country. One of the rationales behind this theory is to assure that a Supreme Court decision affects people beyond the parties to the particular lawsuit in question. Another secondary means for the court to assure that its decisions affect a diverse population is by adjudicating cases starting as class actions (and the rules governing them). Class actions, by definition, involve more than just individual plaintiffs, and so clarifying correct class-action procedures can have an exponential outward effect. Although class actions are seldom discussed as a distinct area of Supreme Court adjudication, the court grants cert in multiple cases that started as class-action lawsuits each term. Between the 2010 and 2018 terms, the court decided between five and 10 cases per term that started as class actions (these cases were coded based on Supreme Court opinions describing the case origin as a class action).

Click to enlarge.

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Kevin Daley reports at The Daily Caller that “[t]he Supreme Court will confront a range of gun rights cases in the coming months”:  “Matters now pending before the justices include a dispute over New York City’s gun transportation regulations, challenges to permitting laws in Massachusetts and New Jersey, and a lawsuit victims of the Sandy Hook massacre brought against gun giant Remington Arms.” At CNN, Ariane de Vogue reports that “[s]ince issuing landmark opinions in 2008 guaranteeing an individual right to have a gun, and a follow on opinion in 2010, the Supreme Court has largely dodged petitions testing the scope of the holding.”

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As the federal constitutional convention drew to a close, the delegates appointed the Committee of Style and Arrangement to prepare a final Constitution from the textual provisions that the convention had previously adopted. Pennsylvania delegate Gouverneur Morris was assigned the task of drafting, and, with few revisions and little debate, the convention hurriedly adopted the committee’s proposed Constitution. For more than 200 years, questions have been raised as to whether Morris as drafter covertly made changes in the text in order to advance his constitutional vision, but the legal scholars and historians studying the convention have either failed to consider that possibility or concluded that Morris was an honest scrivener. Remarkably, however, there is no study that systematically compares the committee’s draft to the previously adopted resolutions. Also remarkably, even though in four decisions in the last 50 years the Supreme Court has concluded that the committee had no right to change the Constitution’s meaning and that any substantive changes it made should be disregarded, there has been little attention to whether the court’s approach is sound. My recently posted article, “Framer’s Intent: Gouverneur Morris, the Committee of Style and the Creation of the Federalist Constitution,” is the first article to focus on the committee’s draft and the ways in which it departed from the text the convention had previously approved and to examine the legal significance of those important changes.

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Briefly:

• For The New York Times, Adam Liptak describes how self-described “jailhouse lawyer” Calvin Duncan shepherded Ramos v. Louisiana, in which the justices will decide next term whether the Sixth Amendment’s guarantee of a unanimous jury applies to the states, to the Supreme Court.
• Tony Mauro reports for The National Law Journal (subscription may be required) that “Justice Elena Kagan and dozens of lawyers who argue at the U.S. Supreme Court turned out Thursday to celebrate the career of newly retired deputy U.S. Solicitor General Michael Dreeben, who argued more than 100 cases before the court and aided special counsel Robert Mueller III in his Trump investigation.”
• At Jost on Justice, Kenneth Jost argues that “Democrats in 2020 need to make the Supreme Court their issue.”
• At The New Yorker, Cristian Farias writes that the Supreme Court’s recent order allowing the Trump administration to proceed with construction of part of the border wall exemplifies how the court “has bent over backward to give the government much of what it’s asked for, by considering an unprecedented number of requests for emergency or extraordinary relief, and granting many of them.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

Donald Verrilli is a partner at Munger, Tolles & Olson. He served as Solicitor General of the United States from 2011 to 2016.

If I had to choose one word to sum up Michael Dreeben, that word would be devotion. Devotion to the craft of lawyering — to rigor and clarity, analytical precision and rhetorical power. Devotion to the profession’s highest ideals — to integrity and candor and zealous advocacy on behalf of his client. Devotion to his role as mentor — to putting in the effort to teach and guide young lawyers who aspire someday to become the lawyer Michael is. Devotion to the Office of the Solicitor General—to its place in the Department of Justice, its role in the development of federal law and its responsibilities to the Supreme Court. Devotion to his country — to a career of public service at the highest and most challenging levels. And with all that, and above all that, devotion to family — to carving out time for what is most important in life and making sure to use that time well.

Deputy Solicitor General Michael Dreeben arguing in Carpenter v. United States (Art Lien)

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