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Supreme Court Lawyers Brace for Uncertainty After Postponement

March 17, 2020, 3:49 PM

The U.S. Supreme Court on Monday indefinitely postponed its upcoming March argument session amid coronavirus concerns, but arguments are still scheduled for next month despite the growing global pandemic.

For high court litigators set to argue in April, that means the show must go on—for now, anyway. But it’s clear that the potentially deadly virus has injected great uncertainty into the already-intense task of pressing a case before the justices.

One of the first lawyers set to argue next month says his preparation “has certainly been affected by the virus.”

Eugene Wedoff, a retired bankruptcy judge who now represents debtors pro bono in bankruptcy appeals, is scheduled to step up to the lectern in the first argument of the two-week session on April 20.

“I would have liked to hold moots in person, but now that would not be reasonable,” Wedoff said ahead of the dispute over repossessed cars. Lawyers typically hold multiple “moot court” sessions before the argument, where other lawyers play the part of the justices to help advocates prepare for the real thing.

The second day of the April session is slated to bring lawyers from at least three states—Texas, New Mexico, and Oklahoma—into the Washington courtroom. There they’d stand just feet away from justices mostly considered “older adults” by the U.S. Centers for Disease Control and Prevention, and thus at greater risk of harm from the virus. Justice Ruth Bader Ginsburg, a four-time cancer survivor, turned 87 on Sunday.

Advocates have remarked at how surprisingly close the justices are to them in the courtroom during arguments.

President Donald Trump declared a national emergency last week over the pandemic. The CDC has warned against gatherings of 50 or more people and state and federal courts across the nation have minimized operations to slow the contagion. The justices’ courtroom holds more than five times that on a typical argument day.

Fluid Situation

One of the April 21 arguments is a water dispute between Texas and New Mexico.

Jeffrey J. Wechsler, who’s arguing in that one, said he plans to come out from Santa Fe, New Mexico, eight days before the argument. He has moots planned in his state and in Washington. They’re making arrangements to do a New Mexico moot remotely, and, as of now, the Washington moots will be in person, he said.

“But it wouldn’t surprise me at any minute, any day, to get an email saying that those plans have changed,” Wechsler said. “It’s an uncertain time.”

With arguments still five weeks away, it’s a “fluid” situation, said Oklahoma Solicitor General Mithun Mansinghani, another one of the lawyers on for April 21. He’ll argue for the state in a a contentious dispute over tribal reservation boundaries that could have a huge impact in the region.

He hasn’t changed his preparation yet. But as the situation develops, Mansinghani said, he suspects there will be more information from the court, from organizations and individuals involved with moots, and from official state policies regarding out-of-state travel and conduct in public settings.

Colorado Attorney General Phil Weiser said his office’s argument preparation “continues relatively unaffected, though we will likely incorporate more virtual moots and plan for different schedules.” The state is defending its law that requires electors to cast their ballots for the candidate who wins the most votes in the state’s presidential election. The so-called “faithless elector” battle is set for April 28.

No Idea What’s Next

Though that Colorado case, for example, has time sensitive implications ahead of the 2020 election, it’s unclear if the high court’s schedule will again succumb in April to the virus that’s increasingly keeping the world cooped up at home.

“When it comes to the April sitting, we really have no idea what the Court will decide to do,” said Deepak Gupta, who plans to argue April 27 in a personal jurisdiction case against Ford Motor Co. “So we’re moving forward as planned until we hear otherwise,” the Gupta Wessler partner said.

Though the court closed to the public starting March 12, it’s still “open for official business,” according to its website. It hasn’t said anything yet about postponing the April session.

Hogan Lovells partner Sean Marotta, who’s set to square off against Gupta on behalf of Ford next month, observed that the court “hasn’t postponed briefing schedules, so we are still looking forward to receiving plaintiffs’ brief at the end of the month and filing our reply.”

“Thankfully,” Marotta said, “I’ve got the best team a litigator can ask for at my back, and we’re going to take it day by day—even if it means working on the reply during my kids’ naptimes.”

What About March?

On top of the April uncertainty, there’s the question of what the justices will do with the March cases, which were to be argued over a two-week period starting March 23.

The court said in its postponement announcement that it will “examine the options for rescheduling those cases in due course in light of the developing circumstances.” The court’s public information office didn’t elaborate.

Among the cases put off in March is the much-anticipated dispute over subpoenas into President Trump’s financial records. With the election looming, the postponement prompted calls from liberal groups to demand that the justices not delay their decision on that issue.

It’s possible that all of the March cases could still be decided this term. The court typically issues its last opinions by late June, though how the court proceeds is almost entirely within its control.

“Despite the postponement of the oral arguments, I would expect a decision in each of the March cases this term, by the end of June,” said McDermott Will & Emery partner Michael Kimberly.

“One option would be to postpone the oral arguments to sometime in April and to hold them before an empty gallery,” Kimberly said. “Another option would be to hold the arguments somewhat later in the term and to extend the end of term into July.”

If the court hears the March cases in April, it could potentially push the April cases to next term, Gupta said. “Hopefully we’ll know more after the Court meets for its next conference.”

The court will still hold its regularly scheduled conference on Friday, where the justices will discuss pending petitions and other matters. Some of the justices may participate remotely by telephone, the court said in announcing the postponement. They’ll issue orders from the conference the following Monday morning, March 23, the announcement said.

Orrick partner Kelsi Corkran, who was set to argue a civil rights case March 30, said “the hope is that if everyone does their part in self-isolating now, there will be an opportunity to reschedule the arguments for April or May and finish up the term on schedule.”

Corkran is “confident the Court will carefully and thoughtfully consider the parties’ arguments as soon as it is safe to do so,” she said. “In the meantime, I will be hunkered down at home with my family and I hope the Justices are too!”

—With assistance from Aysha Bagchi

To contact the reporters on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com; Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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