Seven Cases, Seven Different Attorneys for US at Supreme Court

It’s going to be a busy sitting for the government’s attorneys at the US Supreme Court.

An attorney from the Solicitor General’s Office is arguing in each of the seven cases scheduled to be heard during the November sitting that begins Oct. 30, and it will be a different one each time. Solicitor General Elizabeth Prelogar will be at the lectern for a gun rights case on Nov. 7, which is typical in the highest profile arguments.

“The SG generally will argue the case that’s most important to the government’s interests in any particular session,” said Michael Dreeben, a partner at O’Melveny & Myers who served as deputy solicitor general for 24 years before leaving the office in 2019.

In United States v. Rahimi, Prelogar is fighting to keep a federal law on the books that disarms people who are subject to domestic violence restraining orders. The US Court of Appeals for the Fifth Circuit ruled the measure unconstitutional under the Second Amendment.

The case “is like a perfect storm,” Dreeben said, in that it challenges the constitutionality of a federal law, has a huge practical impact on people’s lives, and is of enormous legal significance.

It’s one of the three cases the SG’s office is involved in this sitting that the government brought to the court.

Sparse Sitting

Cases challenging the constitutionality or validity of a federal statute almost always get the court’s review. That’s the crux of the free speech fight over a “Trump too small” trademark Deputy Solicitor General Malcolm Stewart will argue on Nov. 1.

Vidal v. Elster centers on the constitutionality of a provision in trademark law barring the registration of marks that identify living people unless they’ve given consent. The Federal Circuit ruled for Steve Elster, who wants to sell shirts adorned with the “Trump too small” phrase. The Washington appeals court said the law restricts Elster’s First Amendment free speech rights.

Stewart will try to convince the justices to overturn that ruling, which the government said wrongly treated a viewpoint-neutral condition on a government benefit as a restriction on speech.

Prelogar’s assistants will argue four cases in the November sitting, including the government’s appeal of a ruling that allowed it to be sued over inaccuracies in a credit report and its defense of limits on educational benefits for veterans. Nicole Reaves, Sopan Joshi, Masha Hansford, Benjamin Snyder, and Vivek Suri will each handle a case.

The Biden administration is supporting Alabama in a dispute over whether people have an immediate right to a hearing when states seize property in a crime and it’s arguing in support of public officials who say they can block people from their personal social media accounts.

The SG’s office is typically involved in 65% to 85% of the court’s cases each term, Dreeben said so “hitting bingo in a particular sitting is not that unusual although it’s a nice feat for the office.” He noted there were only seven cases scheduled over six days of argument.

“That’s down from what the court has typically done in past terms of scheduling two cases per argument day,” said Dreeben, who’s argued over 100 cases at the Supreme Court. “That would be 12.”

Last term, the office was involved in 52 of the 59 cases argued, according to a Bloomberg Law analysis.

Jones Day partner Hashim Mooppan will be the third attorney from the firm to take the lectern so far this term when he argues one of the social media cases on Oct. 31.

Traci Lovitt, who leads the firm’s issues and appeals practice, is counsel of record on a fourth case that hasn’t been scheduled yet over whether arbitration agreements in employment contracts apply to delivery drivers.

— With assistance from Kimberly Robinson.