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Boies Argues Remotely at Supreme Court After Positive Test (1)

Jan. 18, 2022, 2:58 PMUpdated: Jan. 18, 2022, 6:37 PM

David Boies participated remotely for his first U.S. Supreme Court argument in nearly a decade, after testing positive for Covid-19 ahead of the hearing.

The Boies Schiller Flexner head, who argued for the Democratic nominee in 2000’s Bush v. Gore, represents the Cassirer family’s long-running quest to reclaim a Nazi-looted Pissarro painting from a Spanish museum.

“Can everyone agree that this is a beautiful painting?” Justice Stephen Breyer asked on Tuesday, referring to the 1897 work—Rue Saint-Honoré in the Afternoon. Effect of Rain—that’s in Madrid’s Thyssen-Bornemisza National Museum.

No one contests that.

But the parties dispute what legal standard applies. The issue is whether federal courts apply state law or federal common law when hearing state-law claims under the Foreign Sovereign Immunities Act.

Arguing to the justices over the phone, Boies fought against a U.S. Court of Appeals for the Ninth Circuit ruling that applied federal common law to side with the museum. He wants the more-favorable California law to apply, under which stolen-property holders can’t acquire good title.

A decision is expected by July.

Court protocols require negative Covid tests for lawyers presenting arguments, which also kept two attorneys in the Jan. 7 vaccine-or-test mandate cases out of the courtroom. A spokeswoman for Boies confirmed Tuesday that he tested positive.

Before Tuesday, Boies’ most recent high-court argument was in 2014, according to Oyez.

Justice Sonia Sotomayor, who has diabetes, also continued to participate remotely. Justice Neil Gorsuch hasn’t been wearing a mask to arguments despite Chief Justice John Roberts’ request, according to an NPR report Tuesday.

(Updates with argument detail.)

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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