WASHINGTON, DC – Before Donald Trump became president in 2017, Texas provided the U.S. Supreme Court with a steady diet of cases, many of them targeting Obama administration regulations and policies.
According to a report in the Texas Tribune, the state of Texas sued the Obama administration 48 times in eight years. While not all of the suits made it to the Supreme Court, enough did for Texas to qualify as a regular customer at the nation’s highest court.
Texas is still a big player at One First Street. Since the start of the last term, State Solicitor General Kyle Hawkins was counsel of record on 30 or more briefs. But rather than challenging the government, many of these are amicus curiae briefs on behalf of states supporting the current administration. The palette of Texas cases the U.S. Supreme Court will hear in the term beginning Oct. 7 has changed colors.
“The federal government and Texas are pretty well aligned” when it comes to Supreme Court litigation, says Dallas solo practitioner Dan Geyser, who will argue his ninth case before the U.S. Supreme Court Dec. 9 – perhaps more than any other current Texas lawyer in private practice.
The case Geyser will argue is Thryv, Inc. v. Click-To-Call Technologies, LP, an important patent case testing a section of the America Invents Act involving inter partes review. Ten amicus briefs have already been filed in the case, with more to come when Geyser files his brief for Click-to-Call. Geyser will square off with Adam Charnes, a Dallas partner at Kilpatrick Townsend & Stockton who will be making his debut at the Supreme Court lectern. The two know each other, Geyser said. “He mooted me for two previous arguments, but I don’t think he’ll moot me for this one.”
Geyser and Charnes are part of the cadre of Texas lawyers who specialize in U.S. Supreme Court work. Think Allyson Ho of Gibson, Dunn & Crutcher, as well as the team at Baker Botts: Aaron Streett, Evan Young and Scott Keller. And don’t forget #AppellateTwitter icons Raffi Melkonian of Wright Close & Barger, solo practitioner Carl Cecere, and Jason Steed at Kilpatrick Townsend.
We touched base with some of them, and here are the cases they are keeping an eye on in what Geyser sees as shaping up to be “a potential blockbuster term.”
Atlantic Richfield v. Christian
Set for argument Dec. 3, this case hales from Montana, where landowners in the Anaconda Smelter Superfund site went to state court to pursue a common law restoration plan that conflicted with the Environmental Protection Agency’s remediation efforts as dictated by the Comprehensive Environmental Response, Compensation and Liability Act. The Montana Supreme Court sided with the landowners, and Atlantic Richfield appealed to the high court. Baker Botts partner Aaron Streett, who chairs the firm’s Supreme Court and appellate practice from Houston, authored a brief in the case for the Chamber of Commerce and energy trade groups. In an interview, Streett said the case is important because “the state court’s holding throws remediation efforts at Anaconda and other massive sites into chaos and opens the door for thousands of private individuals to select and impose their own remedies at CERCLA sites at a potential cost of many millions of dollars per site.”
Department of Homeland Security v. Regents of the University of California
Three consolidated cases that will decide the fate of the Deferred Action for Childhood Arrivals program are set to be argued Nov. 12. With its long history of challenging the Obama-era program (in Texas v. United States and Texas v. Nielsen), Texas has a big stake in the outcome. Solicitor General Hawkins filed a brief on behalf of 12 states, but it underscored the impact of DACA on Texas. “Texas alone incurs more than $250,000,000 in total direct costs from DACA recipients per year,” Hawkins wrote.
Remington Arms Co. v. Soto
Baker Botts partner and onetime Texas Solicitor General Scott Keller filed this petition in August, so it’s not certain when or whether it will be granted review. But it’s an important dispute over the liability of firearm manufacturers and sellers for the misuse of their products. Remington is challenging a Connecticut Supreme Court ruling that broadly interpreted an exception to the federal law that protects manufacturers from liability. “This court’s guidance is sorely needed,” Keller asserts in his brief on behalf of Remington. Upholding the Connecticut ruling, he wrote, “will have immediate and severe consequences, exposing the firearms industry to costly and burdensome litigation.” Amicus briefs are flowing in, including – you guessed it – one from Texas on behalf of 10 states supporting Remington.
Sharp v. Murphy
Gibson Dunn’s Allyson Ho is watching this case, formerly titled Carpenter v. Murphy. Convicted murderer and Creek Nation tribe member Patrick Murphy claims that Oklahoma did not have jurisdiction to prosecute him because of his tribal status. He asserted, and the Tenth Circuit agreed, that the crime took place on the huge Creek reservation that comprises more than 3 million acres of the state, including most of the city of Tulsa. Oklahoma asserts the reservation was disestablished as part of the creation of the state in 1907. The case was argued at the Supreme Court last term, with Justice Neil Gorsuch recusing. But as the term ended, the court announced the case would be “restored to the calendar for reargument.” No date has been set, but Ho said “there’s a lot of interest in Texas about the case” because of its close proximity to Oklahoma.
Also on the Horizon
- Gibson Dunn’s Ho recently filed a cert petition titled Alabama-Coushatta Tribe of Texas v. Texas, an Indian Gaming Regulatory Act case that she described as a mix of “issues of Indian law and Chevron deference.”
- Collins v. Mnuchin is a Fifth Circuit decision authored by Judge Don Willett in September that struck down a federal law barring the president from firing the head of the Federal Housing Finance Agency without cause. “That caught a lot of attention, and it will almost certainly go up to the Supreme Court,” said Baker Botts’ Young.
- As soon as this week, the high court may grant review in June Medical Services v. Gee, a Louisiana abortion rights case in which the Fifth Circuit upheld a state restriction on clinics that the Supreme Court struck down in the 2016 Texas case, Whole Woman’s Health v. Hellerstedt.
Tony Mauro has covered the U.S. Supreme Court for four decades for American Lawyer and USA Today.